Jessica Parfrey v Commissioner of Police - [2010] NSWIRComm 19 - NSWIRComm 2010 case summary — Zoe

NSWNSWIRComm

Jessica Parfrey v Commissioner of Police

[2010] NSWIRComm 19

Industrial Relations Commission (NSW)|2010-07-01|Before: Grayson DP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2010-07-01

Before

Grayson DP

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

CITATION: Jessica Parfrey v Commissioner of Police [2010] NSWIRComm 19

[2]

Jessica Parfrey PARTIES: Commissioner of New South Wales Police Police Association of New South Wales (intervenor)

[3]

Unfair dismissal - Probationary police constable - Jurisdiction of Commission challenged - Whether direct or indirect inconsistency between statute governing employment of police and general industrial legislation - Principle of implied repeal - History of industrial regulation in NSW Police Force - Whether Police Act provisions governing appointment, conduct, discipline and removal of police officers are exhaustive - Whether decision to dismiss probationer constitutes non-confirmation of appointment by annulment and as such deprives Commission of jurisdiction to review - Allegations of sexual harassment - Obligation on Commission in the exercise of functions to have regard to principles of Anti-Discrimination Act - Allegations of improper and unprofessional conduct - Proposal to fabricate evidence - Proposal to provoke violence - Onus of proof - Whether respondent has legitimate interest in employee conduct outside working hours - Application of code of conduct to off-duty police - Credibility of witnesses CATCHWORDS: Held: No inconsistency between statutes - Commission has jurisdiction over dismissal of probationary police officers - Allegations of sexual harassment made out - Allegations of improper conduct and unprofessional conduct made out - Applicant's conduct not excusable on grounds of banter or unintended offence - Applicant's conduct not excusable as learner error - Repeated acts of misconduct more culpable in light of counselling by superiors - Community expectation of high standards of police integrity - No warrant for intervention of Commission - Application dismissed.

[5]

Aldridge v Booth (1988) 80 ALR 1 Alexander v Commissioner of Police [2009] NSWIRComm 3 Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 Attorney General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 Bank Officials Association (SA Branch) v Savings Bank of South Australia (1923) 32 CLR 276 Bigg v New South Wales Police Service (1997) 72 IR 330 Butler v Attorney General (Vic) (1961) 106 CLR 268 Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 Caton v Richmond Club Limited [2003] NSWADT 202 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Sewell [2009] NSWCA 198 Commissioner of Fire Brigades v NSW Fire Brigade Employees Union (on behalf of Levy) [2009] NSWIRComm 138 Commissioner of Taxation v Dick (2007) 242 ALR 152 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Coutts v The Commonwealth (1984) 157 CLR 91 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168 Deputy Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Doyle v Riley (1995) EOC 92-748 Enever v The King (1906) 3 CLR 969 at 982 Ex Parte Wurth; Re Tulley (1954) 55 SR (NSW) 47 Ferdinands v Commissioner of Public Employment (2006) 225 CLR 130 Ferraris v Commissioner of Police [2005] NSWIRComm 240 Ferraris v Commissioner of Police [2006] NSWIRComm 243 Fischer v Commonwealth (1995) 63 IR 401 Fischer v Commonwealth (1996) 67 IR 123 Fletcher v Nott (1938) 60 CLR 55 Godkin v Commissioner of Police [2007] NSWIRComm 202 Goodwin v Phillips (1908) 7 CLR 1 Grisman v Wyvill [1996] 1 Qd R 145 Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503 Hollingsworth v Commissioner of Police [2004] NSWADT 17 Hopper v Mount Isla Ltd (1997) EOC 92-879 Jarret v Commissioner of Police (2005) 224 CLR 44 CASES CITED: Johanson v Michael Blackledge Meats [2001] FMC 6 Kaye v Attorney General for Tasmania (1956) 94 CLR 193 Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 Leslie v Graham [2002] FCA 32 McQuillan v Commissioner of Public Employment [1993] SAIRC 26 Menner v Commissioner of Police (1997) 74 IR 472 Nasser v Public Service Board (1986) 53 SAIR 408 New South Wales Attorney General's Department v Miller (2007) 160 IR 185 New South Wales v Perpetual Trustee Company Limited (1956) 92 CLR 113 NSW Breeding and Racing Stables Pty Ltd v V and X [2005] NSWCA 114 O'Callaghan v Loder & Anor (No. 2) [1983] 3 NSWLR 89 O'Rourke v Miller (1984) 156 CLR 342 Parker and Ors v Miller and Ors [1998] WASCA 124 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 Phillips v Leisure Coast Removals Pty Ltd (1997) EOC 92-899 Police Association v New South Wales Police (No 3) (2005) 144 IR 150 Potter v the Australian Capital Territory (No. 2) (1997) 74 IR 403 R v Commissioner of Police; Ex parte Ramsay [1936] 2 Qd R 171 R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 R v Lee and Ors; Ex parte Nasser (1989) 27 IR 335 Re Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award (2003) 129 IR 369 Re Loty and Holloway and the Australian Workers' Union [1971] AR (NSW) 96 Ridge v Baldwin [1964] AC 40 Rose v Hvric (1963) 108 CLR 353 Rose v Telstra Corporation Limited [1998] IRCommA 1592 Saraswati v R (1991) 172 CLR 1 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 Shergold v Tanner (2002) 209 CLR 126 Shop, Distributive & Allied Employees' Association (NSW) v Librus Pty Ltd (t/a Dymocks Parramatta) (2001) 103 IR 390 Smith v Director-General of School Education (1993) 31 NSWLR 349 Spencer v Dowling [1997] 2 VR 127 Tenuyl v Delaney and Anor (1996) EOC 92-177 Tulk v Moore (1997) EOC 92-883 Vocisano v Vocisano (1974) 130 CLR 267 Webb v Newcastle Hire Cars Pty Ltd [2004] NSWADT 142

[14]

3 The Respondent contends that the Commission does not have jurisdiction to hear and determine the Applicant's unfair dismissal claim. The Respondent's submission is based on four grounds: (a) Direct Inconsistency: There is an explicit repugnance between the Commission's power to dismiss probationary police officers under s 80(3) of the Police Act 1990 and the Commission's unfair dismissal jurisdiction under Part 6 of Chapter 2 of the Industrial Relations Act . Each statute bestows conflicting rights and obligations regarding the nature and scope of the power of dismissal, the relevant considerations informing the exercise of such power and the relief available in relation to probationary constables. As the Police Act contains specific and later provisions governing the dismissal of probationary police officers, it prevails over the general and earlier provisions of the Industrial Relations Act . (b) Indirect Inconsistency: An implicit contradiction also exists between the two enactments. The Police Act establishes an exhaustive regime regarding the appointment, discipline and termination of the appointment of police officers including probationary constables. It codifies the rights and remedies available to police officers in relation to these matters. As the Police Act does not provide a remedy to probationary police officers to review dismissal, no relief is available under the Industrial Relations Act or any other law (other than potentially limited rights of judicial review). (c) No relief available: The Respondent's dismissal of a probationary police officer under s 80(3) of the Police Act is a decision not to confirm the Applicant's appointment to the rank of constable (by annulling the appointment). Under s 88(1) and s 88(3) of the Police Act , matters concerning the appointment and failure to appoint a police officer cannot be challenged or reviewed in industrial arbitration or legal proceedings. (d) Excluded as a Probationary Employee: The Respondent dismissed the Applicant during a probationary period determined in advance of her employment which was reasonable having regard to the nature and circumstances of her employment. She is therefore excluded from making an unfair dismissal claim under s 83(2)(b) of the Industrial Relations Act and clause 6(1)(c)(ii) of the Industrial Relations Regulations 2001 (NSW). The Respondent contends that Ferraris v Commissioner of Police [2006] NSWIRComm 243 is wrong and should be overruled. However, the Respondent acknowledges the Commission at first instance is bound to follow Ferraris unless the Full Bench or higher appeal court reverses the decision. 4 In developing the argument in that regard counsel for the Respondent pointed to a number of key themes said to be brought into sharp focus by the interplay between the Police Act and the general industrial legislation. These include a tension between the special nature of police work and the general application of employment law, the nature of probationary employment in the NSW Police Force, the differing nature and scope of powers of the Respondent and those of the Commission and the kinds of relief generally available to police officers regarding discipline and termination of employment. 5 Where, as here, both the Industrial Relations Act and the Police Act make express reference to each other (see for example s 405 of the former and s 218 of the latter), such provisions do not conclusively determine the question of access to the unfair dismissal jurisdiction for probationary police officers and as observed by Boland J (as he then was) in Police Association v New South Wales Police (No 3) (2005) 144 IR 150, the proper approach is to give effect to the legislative intent by determining through permissible means whether the provisions can be reconciled and if not, which prevail. 6 In reconciling conflicting laws, it is to be presumed that the legislature does not intend to make contradictory legislation (see Butler v Attorney General (Vic) (1961) 106 CLR 268). The question to be asked in resolving conflict is whether the various provisions can live together or give rise to irreconcilable conflict (Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 35 (per Gibbs CJ). In such cases, close construction of the legislative provisions is required (Ferdinands v Commissioner of Public Employment (2006) 225 CLR 130 at 143 per Gummow and Hayne JJ). 7 In the event of irreconcilable conflict, the general rule is that the later enactment impliedly repeals the earlier inconsistent enactment (Goodwin v Phillips (1908) 7 CLR 1) and the inconsistency can be explicit or implicit (Rose v Hvric (1963) 108 CLR 353 at 358). An explicit contradiction exists where there is not only an inability to comply with conflicting commands under different legislation but also where it produces inconsistent rights and obligations that are incapable of reconciliation (Ferdinands at 133 per Gleeson CJ). This can arise where affirmative words granting an exercise of a right can have a negative force of forbidding the doing of a thing otherwise (R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 at 270). An implicit contradiction will arise where two legislative schemes exhibit a "contrariety" which, by necessary implication, cannot stand together (Saraswati v R (1991) 172 CLR 1 at 17 per Gaudron J) and where a later statute demonstrates an apparent exhaustiveness in a particular prescription then the later statute will displace the earlier one (Butler v Attorney General (1961) 106 CLR 268 at 280; Ferdinands at 136 and 148). 8 There will not be an implied repeal however, where a specific provision of an earlier enactment conflicts with a general provision of a later enactment (Goodwin v Phillips (1908) 7 CLR 1 at 14; Bank Officials Association (SA Branch) v Savings Bank of South Australia (1923) 32 CLR 276 at 282 and 299; Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152 at 175). 9 Counsel for the Respondent further argues that the reasoning and principles in Ferdinands apply in the circumstances of the present case and where the High Court found in Ferdinands that implicit contradictions between the Police Act 1998 (SA) and the Industrial Relations and Employment Relations Act 1994 (SA) were such that the earlier enactment was impliedly repealed by the later enactment, the Commission would take the same approach here. 10 By way of background, counsel for the Respondent set out a brief history of industrial regulation in the NSW Police Force as follows: Before 1976, the Commission only had limited jurisdiction under the Industrial Arbitration Act 1940 (NSW) to deal with public servants, teachers and police officers: see Public Service Association v Industrial Commission of New South Wales [1985] 1 NSWLR 627; (1985) 11 IR 420 at 421-422; Police Association v New South Wales Police (No 3) at 162-167. Employment conditions were chiefly controlled and determined by the Respondent as the employer detailed in Police Rules and Instructions and various provisions of the Police Regulations Act 1899 (NSW) and associated legislation. Between 1946 and 1976, the members of the NSW Police Force had recourse to the State industrial tribunals under the Industrial Arbitration Act only in relation to establishing minimum rates of pay. The Industrial Commission did not have the power to make awards regulating general workplace conditions. However, police officers had a right of appeal to the crown Employees Appeals Board (the forerunner to the Government and Related Employees Appeals Tribunal) regarding certain employment decisions under the Police Regulation (Appeals) Act 1923 (NSW). Following the Industrial Arbitration (Amendment) Act 1976 (NSW), some of the restrictions placed on the regulation of police officers were removed (but were still subject to the Police Regulation Act 1899 ): see Public Service Association of New South Wales and Anor v Industrial Commission of New South Wales and Anor (1985) 1 NSWLR 627 at 631-633 (per Street CJ); at 641-644 (per Kirby P) on the legislative history. Nevertheless, significant limitations continued to apply under s 20(1) of the Industrial Arbitration Act (the forerunner to s 405 of the Industrial Relations Act ) curtailing the Commission's jurisdiction. It did not extend to making awards regarding termination of employment. In 1978, the Industrial Arbitration Act was extended to public sector employees by the Industrial Arbitration (Reinstatement Awards) Amendment Act 1978 . The amendments gave the right to public servants (including police officers) to seek the making of an award granting reinstatement. For an explanation of the legislative history, see Police Association v New South Wales Police (No 3) at 163-164. Relevantly for present purposes, neither the Police Regulation Act nor the Police Rules contained any express provision regarding the appointment of probationary constables. However, the Police Rules provided the Respondent with the power to discharge a probationary constable "without any reason being assigned" (section IV, r 1(r)). No right of appeal existed to the Crown Employee Appeal Board or, later, GREAT against a failure to confirm an appointment although probationary employees could appeal a dismissal which was punitive in nature: see generally Kerr v Commissioner of Police and Anor [1977] 2 NSWLR 721 at 726-729; Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 650-653. The enactment of the Police Act 1990 (known previously as the Police Service Act 1990 ) marked a significant change to the employment regulation of the NSW Police Force. The Respondent was given broad powers to manage and control the NSW Police Force and the extensive statutory regime applies to the appointment, employment and discipline of police officers. Relevantly, under the Police Act , the Respondent has the power to appoint and dismiss a probationary police officer at any time without giving any reason (s 80(3) - previously s 73(3) before the renumbering of the Police Act in 2006). The key change was that the addition of the phrase " at any time " to the Respondent's power to dismiss probationary police officers "without assigning reasons". The Police Act permitted limited appeals to GREAT (expanded under the Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 to include disciplinary decisions). However, the Government and Related Employees Appeals Act 1980 did not provide rights of appeal of annulments to probationary appointments. The making of the Industrial Relations Act 1991 (NSW) expanded the rights of police officers who could bring unfair dismissal claims as "employees of the Crown" (s 246). However, no exclusion of probationary constables applied under the 1991 Industrial Relations Act . These were inserted under the 1996 Industrial Relations Act . Arising out of the recommendations of the 1997 Wood Royal Commission Report , the New South Wales Parliament made significant changes to the Police Act (chiefly in the Police Service Amendment Act 1997 (NSW) and the Police Service Amendment (Complaints and Management Reform) Act 1998 (NSW)) to provide the Respondent with the power (and consequential procedure and remedies) to discipline police officers for misconduct or unsatisfactory performance (ss 173 ff) and remove police officers on the basis of a personal loss of confidence based on competence, integrity, performance or conduct (s 181D ff). However, no procedure or remedy is provided in relation to the dismissal of probationary constables. In determining whether an implied repeal arises, the proper approach is not to consider the dates of the original enactments alleged to be in conflict, but, rather, the consideration of the particular provisions on the topic said to give rise to the implied repeal: Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 at 297 (per Kirby P). As substantial changes were made to the Police Act regarding the topic of dismissal of police officers in 1997 and 1998, the Police Act should be regarded as the later provisions to the Industrial Relations Act on the subject matter of dismissal of police officers. In any event, it is apparent that the Police Act has been regarded as special regulation on the topic of the dismissal of police officers, in particular, probationary police officers. Historically, the rights of probationary police officers to challenge their dismissal has been very limited. The Commission's jurisdiction in relation to police officers has been specifically denied. No intent has been expressed enlarging the rights of probationary police officers; on the contrary, the express terms of s 80(3) relative to its predecessors indicates the contrary. The Police Act embodies special provisions on the issue of probationary police officers which prevails over the general provisions of Part 6 of Chapter 2 of the Industrial Relations Act regarding the ability of probationary officers to bring unfair dismissal claims.

[15]

11 Turning then to the first of the specific grounds upon which the Respondent's challenge is mounted, it is argued that there is a direct or explicit inconsistency between s 80(3) of the Police Act and s 84 of the Industrial Relations Act, the former of which provides as follows: 80 Appointment and promotion of constables (1) ... (2) ... (3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. (4) ... 12 Even though the power to dismiss probationers is founded in the Police Act rather than upon the Crown prerogative to dismiss at pleasure (Fletcher v Nott (1938) 60 CLR 55; Ridge v Baldwin [1964] AC 40; Kaye v Attorney General for Tasmania (1956) 94 CLR 193; Coutts v The Commonwealth (1984) 157 CLR 91) it is submitted by the Respondent as significant that the legislature chose to import the same terminology as applies to dismissal at pleasure. This is an indication that the statutory power to dismiss probationary police officers has similar (but not the same) characteristics as the prerogative power (Menner v Commissioner of Police (1997) 74 IR 472; R v Commissioner of Police; Ex parte Ramsay [1936] 2 Qd R 171). It is also significant that the statutory power to dismiss "at any time" was added under the 1990 Police Act to the pre-existing power to dismiss without reasons thus indicating an intention to broaden the Respondent's power in that regard and conversely, to limit judicial scrutiny of such decisions (O'Rourke v Miller (1984) 156 CLR 342). 13 In contrast to the detailed procedure and obligations under the Police Act in relation to the discipline (s 173) or dismissal (s 181D) of police officers and the removal of executive officers (s 51), the Respondent is not explicitly required to follow any procedure, prepare or be provided with any report about conduct or be satisfied as to any given state of affairs as a condition precedent to dismissing a probationary police constable (Jarret v Commissioner of Police (2005) 224 CLR 44; Parker and Ors v Miller and Ors [1998] WASCA 124). 14 The absence of any restriction or qualification of the exercise of the power to dismiss is strongly suggestive, subject to the observance of procedural fairness, of the decisions to dismiss probationers not being open to review and further, the notion of dismissal at pleasure under s 80(3) of the Police Act is incapable of being reconciled with Pt 6 of Ch 2 of the Industrial Relations Act. This is so because relevant tests and matters to be taken into account in unfair dismissal proceedings are explicitly contrary to the unfettered right to dismiss under s 80(3). For example, whether a dismissal is harsh, unjust or unreasonable must of necessity involve consideration of the reasons for and timing of the dismissal (Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465) and where the Commission is also generally required by s 88 of the Industrial Relations Act to take such matters into account, the obligation becomes antithetical to the Respondent's specific power to dismiss probationers at any time and without giving reasons. 15 In relation to the nature of probationary employment, the Respondent submits that its critical significance in the Police Force was emphasised by the High Court in O'Rourke where Gibbs CJ at 353-354 stated: It is of great importance to the public that persons whose conduct or character is doubtful should be kept out of the police force and the system of probationary appointments is one means of achieving that end. The Chief Commissioner, in exercising his power under reg 212 to terminate the appointment of a probationary constable, has, to use the words of Murphy J in the Full Court of the Supreme Court, "not only the power but also the responsibility to weed out persons concerning whom he entertains any reasonable doubts. 16 Furthermore, the nature of probationary employment is such that not all of the benefits of permanent appointment are enjoyed and the absence of rights of appeal or review against dismissal would be unsurprising and entirely consistent with the probationer being on trial to determine suitability for permanent appointment (Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 658). 17 The Respondent submits that the explicit contradictions between the Police Act and the Industrial Relations Act produce inconsistent rights and obligations that are incapable of reconciliation. As the provisions of the former are the more specific and later enactment, then they should prevail. 18 The second ground upon which the Respondent's challenge is mounted is that of implied contradiction in that the Police Act contains a comprehensive raft of legislative provisions dealing with the discipline and dismissal of police officers none of which incorporate, by reference, the provisions of the Industrial Relations Act insofar as probationers are concerned. This is indicative of a legislative intention that no remedy under the Industrial Relations Act should apply (Commissioner of Police v Industrial Relations Commission of NSW and Sewell [2009] NSWCA 198). 19 Adopting the principles in Ferdinands, in determining whether an implicit contradiction arises, it is necessary to consider the nature, purpose and operation of each law to determine whether the laws could be read and applied together. This requires carefully examining the features of both laws. 20 The Respondent contends that there are a number of features of the Police Act and the Industrial Relations Act which signify that the Police Act is intended to exclude the application of the unfair dismissal provisions under the Industrial Relations Act to probationary police officers. In particular, the specific attributes create the appearance of "exhaustiveness" referred to in Ferdinands. The relevant features of each enactment include the following: Under s 8 of the Police Act, the Respondent has the responsibility to manage and control the NSW Police Force. These functions include providing police services such as the prevention and detection of crime, the protection of persons from injury or death and property from damage and the provision of essential services in emergencies (s 6(2) and s 6(3)). The broad-ranging and paramount public activities are essential to a free and orderly functioning of society and prevention of violence, crime and fear (s 6(1)). The Statement of Values of members of the NSW Police Force reinforces the solemn nature of these functions (s 7). 21 The NSW Police Force is a disciplined force of the Crown (see Fletcher v Nott (1938) 60 CLR 55 at 77; Enever v The King (1906) 3 CLR 969 at 982; New South Wales v Perpetual Trustee Company Limited (1956) 92 CLR 113 at 120-121; Attorney General NSW v Perpetual Trustee Company Limited (1952) 85 CLR 237 at 254-255. The peculiar features of the relationship between the Respondent and members of the NSW Police Force have similarities only to the armed forces. Integrity is a touchstone that informs and controls the behaviour and execution of a police officers' functions (see for example ss 7, 71, 82G). 22 The special regulation of the Police Force stands in stark contrast to other public sector employees involved in critical public duties such as the fire brigade, the ambulance service and emergency services. None have the same level of exhaustive detail contained in specific legislation governing the appointment, conduct, discipline and removal of employees. 23 The statutory purpose of the termination of employment provisions in the Police Act and the unfair dismissal provisions in the Industrial Relations Act are fundamentally distinct. The Respondent and the Commission have different roles and mandates. The different considerations which inform the exercise of power under the respective statutes lead to different outcomes. Where the Commission has been given a specific mandate to review the decisions of the Respondent, it should be explicit (such as under s 174 and s 181D). 24 The Respondent's functions involve preventing and investigating crime, upholding the rule of law and ensuring public safety (ss 6-8). The Parliament has bestowed a broad power on the Respondent to manage and control the NSW Police Force (ss 5, 8, 10, 24-31). These considerations inform the Respondent's decision whether to confirm or annul the appointment of a probationary police officer. 25 By contrast, the Commission's functions concern employment regulation and resolving industrial disputes by reference to notions of industrial justice (s 3 and s 146 of the Industrial Relations Act). In the context of unfair dismissal proceedings, the Commission's role is to ensure that there has been a 'fair go all around' (Re Loty and Holloway and the Australian Workers' Union [1971] AR (NSW) 96). 26 The incongruity between the objectives and considerations arising under the disparate statutory schemes creates a high risk of anomalous and even absurd outcomes. 27 For example, the Respondent can only appoint probationary police officers who are "of good character" under s 80(1) of the Police Act and so an annulment on the basis of a lack of good character may end up conflicting with a decision that the dismissal was harsh on the basis that the probationary police officer should be given another chance. This may create the risk of a conflict between the obligations placed on the Respondent under the Police Act and complying with an order of the Commission. 28 As noted by Fisher P in Bigg v New South Wales Police Service (1997) 72 IR 330 at 334 (in the context of comparing s 181B and the unfair dismissal laws): ...industrial fairness has to be considered in the terms of the statute and the Minister's explanation as to the reasons of the statute. Industrial fairness in this case is not the same as in a normal public sector case. Parliament has said that this is an exceptional kind of case. 29 The conflicting considerations involved in the exercise of the respective powers strongly indicate that probationary police officers cannot make unfair dismissal claims under the Industrial Relations Act. Unless the tribunal is undertaking a pure merits review based on the same considerations and under the same obligations placed on the Respondent, then it suggests that rights of review are not available. 30 The Police Act contains exhaustive provisions about the appointment, conduct, discipline and removal of police officers. These provisions are both prescriptive and detailed in nature. 31 There are five salient features of the legislative scheme that demonstrate the Police Act is exhaustive in dealing with the discipline and removal of probationary police officers. (a) Appointment: The Police Act prescribes detailed provisions regarding appointment of police officers. This includes appointment of probationary constables (see clauses 12-14 of the Police Regulation 2008 ). The basis for confirmation or annulment of the appointment of a probationary police officer is regulated. The Respondent's decision to appoint or not to appoint a police officer cannot be the subject of a challenge or relief under s 44 and s 88 of the Police Act . (b) Complaints: The Police Act also establishes detailed procedures in dealing with complaints about police misconduct. Part 8A regulates the procedure for making complaints about police misconduct (Division 5) and the outcome of complaints (Division 6). Various persons and bodies share responsibility for dealing with complaints including the Respondent, the Independent Commission Against Corruption, the Ombudsman and the Police Integrity Commission. (c) Actions: The Respondent is given a range of options dealing with misconduct or unsatisfactory performance of a police officer. The Respondent can impose reviewable or non-reviewable action under s 173 or can remove a police officer from the NSW Police Force under s 181D based on the Respondent's loss of confidence. (d) Procedure: In making a reviewable order imposing disciplinary sanctions or making an order for removal, there is a prescriptive procedure that must be followed by serving "show cause" notices, providing an opportunity to provide written submissions in response for consideration and giving written reasons for making the order (ss 173(5) - 173(7); ss 181D(3) - 181D(4)). (e) Remedies: The Police Act provides a police officer with the specific right to review a decision to impose "reviewable" disciplinary action or removal. A police officer can make application to the Commission to review the decision under s 174 and s 181E in respect of reviewable disciplinary penalties and summary removal respectively. In addition, a police officer is entitled to seek administrative law remedies against the Respondent's decision in the Supreme Court of New South Wales (s 173(10) and s 181D(7A)). 32 As Parliament has turned its mind to providing specific remedies under s 181D of the Police Act, it may be implied that no such remedy is available to probationary officers dismissed under s 80(3). A similar approach has been taken in South Australia in relation to probationers in the public service (see McQuillan v Commissioner of Public Employment [1993] SAIRC 26; Nasser v Public Service Board (1986) 53 SAIR 408; R v Lee and Ors; Ex parte Nasser (1989) 27 IR 335). 33 The Police Act establishes a coherent and internally consistent scheme on these matters which is at odds with the provisions of the Industrial Relations Act. The Police Regulation 2008 contemplates that the right to dismiss under s 80(3) is provided in contradistinction to the power to dismiss under s 181D (see Regs 11, 49, 51-53). The Respondent contends that these provisions exhaustively deal with appointment, complaints, discipline and remedies on removal available to the exclusion of the Industrial Relations Act. 34 The Police Act sets out the employment where a right to review is available in relation to promotion, discipline and dismissal. Review is not available regarding all the Respondent's employment decisions. For example, the Respondent's appointment decisions cannot be challenged (s 44 and s 88) and the Respondent may impose non-reviewable action under s 173. The detailed provisions regarding the kind of decisions which can and cannot be reviewed impliedly excludes the application of other remedies under other laws. In other words, as I understand the submission, the provisions of the Police Act comprise affirmative words that have the negative effect of relevantly forbidding the doing of things under the Industrial Relations Act. 35 Even though s 84 of the Industrial Relations Act is not expressly excluded, it is implicitly excluded because the provisions are in terms that are not entirely consistent with s 181E of the Police Act (Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Sewell [2009] NSWCA 198 at [38] per Spigelman CJ). For example, under s 181E applications, the sequence of review is prescribed (s 181F), the burden of proof is placed squarely on the applicant (s 181F(2)), the Commission is mandated to take into account the public interest of maintaining the integrity of the NSW Police Force (s 181F(3)) and there are limited grounds to adduce new evidence (s 181F(1)(f) and s 181F(2)). None of these matters apply in an unfair dismissal case. 36 If the Parliament intended police officers to be treated no differently to any other employee, then there would be no need to establish a special removal and review regime under the Industrial Relations Act. The incorporation of certain elements of the unfair dismissal provisions under s 181G of the Police Act and the express exclusion of other provisions suggests that the unfair dismissal laws were not intended to apply to probationary police officers under s 84 of the Industrial Relations Act. 37 It would be perverse that a probationary police officer would have more beneficial rights of review than a permanent police officer. The summary removal of a police officer for cause under s 181D is based on the Respondent's confidence. These provisions are designed to provide the Respondent with a more robust power to remove police officers than that available to other employers who are otherwise subject to the unfair dismissal regime. Coherent to the nature and purpose of probationary employment, it is unlikely that a probationary employee would have the right to bring an unfair dismissal claim where such a right is not available to permanent police officers. 38 Having regard to the above factors, the Respondent submits that the Police Act also implicitly contradicts the unfair dismissal provisions in the Industrial Relations Act. For the same reasons as set out in Ferdinands (at [57]), the Police Act represents a complete statement of the rights, powers and remedies available (and not available) regarding termination of appointment of police officers. It follows that the Commission does not have jurisdiction under Part 6 of Chapter 2 to hear and determine any claims made by probationary police officers.

[16]

39 The third ground upon which the Respondent's challenge is mounted relies upon the proposition that a decision to dismiss a probationer is in fact a decision not to confirm or to annul that person's appointment and by reason of s 88 of the Police Act, there is no available relief by way of industrial arbitration or other legal proceedings in relation to the appointment of or failure to appoint a person to a vacant non-executive position within the police service. 40 The Police Act provides that the term "appointment" means appointment "by way of promotion or transfer or otherwise" (s 63); the term "vacant position" includes a position not held by a person (s 63 and s 88(6)). Upon appointment, each constable holds a position as designated by the Respondent (s 10(4)). However, each position of a constable is not considered a "separate" position but as part of a class of positions created (s 10(4)). 41 The term "appointment" is not restricted to specific methods - it includes ways and means other than promotion or transfer and therefore, is capable of extending to the confirmation of an appointment. It can include persons who are or are not members of the New South Wales Police Force (s 64(2)). A vacant position also does not have to be an individual appointment or specific position but may apply to classes or kinds of positions (Re Crown Employees (New South Wales Fisheries Salaries and Conditions of Employment) Award (2003) 129 IR 369 at [65]). 42 The dual nature of the decision is underscored by the location and heading of the power to dismiss probationary police officers. These matters support the contention that the power to dismiss a probationary officer is a matter concerning "appointment" rather than removal of the officer firstly, because the power to "dismiss" a probationary police officer is situated in the provisions dealing with the appointment and promotion of constables under Division 4 of Part 6 of the Police Act and secondly, because the heading to Division 3 of Part 6 and of s 80 is entitled "Appointment and promotion of constables". Under s 35(1) of the Interpretation Act 1987 (NSW), the heading to a section or provision forms part of the statute and can affect the meaning of a section (see Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 601; Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 657 - 658). 43 This point becomes clearer when the Respondent's decision to dismiss a probationary employee under s 80(3) of the Police Act is understood as part of a bundle of different powers. The Respondent has various powers in dealing with a probationary police officer including shortening or extending the probationary period (clause 13(1)), confirming the appointment in the rank of constable (clause 14) or not confirming the appointment (clause 15(1)). Where a police officer's appointment is not confirmed, in the context of public sector employment, the appointment is annulled (see Ex Parte Wurth; Re Tulley (1954) 55 SR (NSW) 47 at 49-50; Grisman v Wyvill [1996] 1 Qd R 145 at 149-152). 44 The alternative outcomes of confirmation or annulment of a probationary employee (in this case - an administrative officer) during or after probation is expressly contemplated under clause 68(3) of the Police Regulation 2008. The means of ending a probationary appointment by confirmation or annulment/discharge continues to apply in the public sector (see, for example, s 23(3) of the Public Sector Management Act 2002 (NSW); s 48(2) of the Teaching Services Act 1990 (NSW); s 12(1)(b) of the Education (School Administrative and Support Staff) Act 1987 (NSW); s 23(1)(d) of the Government and Related Employee Appeals Tribunal Act 1980 (NSW); regulations 8 and 23 of the Transport Administration (Staff) Regulation 2005. It reinforces that notion that annulment of a probationary appointment is a matter dealing with decisions about suitability of appointment rather than dismissal for cause. 45 The Respondent's exercise of the power to dismiss should not be taken to require a punitive dimension or as "removing" the police officer. This is so because the Respondent's decision to annul a probationary appointment is coextensive with the Respondent exercising a power of dismissal as it involves "the termination of services by the employer without the employer's consent" (Smith v Director-General of School Education (1993) 31 NSWLR 349 at 366). The position is reflected in the meaning of dismissal which includes annulment of an appointment under s 83(5) of the Industrial Relations Act. 46 The Applicant's contract of employment is consistent with this notion. The contract states that where the Applicant's performance including conduct, fitness, medical assessment and integrity is considered to be unsatisfactory, the Applicant may be dismissed before confirmation to the rank of constable (clauses 8, 10). 47 Consistently, the powers to "remove" probationary police officers are not contained in provisions dealing with discipline, performance and summary removal under Part 9 of the Police Act. This reinforces the position that probationary police officers do not have the same rights and remedies as permanent police officers in relation to termination of appointment. The distinction between Part 6 and Part 9 of the Police Act emphasises the character of the decision to dismiss a probationary officer as one concerning the suitability for appointment (see discussion in Police Association v New South Wales Police (No 3) at 158-161). 48 Once it is understood that the decision to dismiss a probationary police officer is also a decision not to confirm the appointment, the true and distinct nature of probationary employment becomes much clearer. The probationary police officer is on trial to determine his or her suitability as a police officer. Should it be judged that a probationary police officer has not exhibited the appropriate standards to be confirmed such as not being of good character or lacking fitness for the job, then the Respondent is entitled to make that decision at any time by not confirming (ie annulling or discharging) the appointment. 49 As the nature of these proceedings concern the termination of the appointment of a probationary officer, s 88 of the Police Act operates to exclude the Applicant's proceedings. It is a privative provision which immunises decisions about appointments from review or challenge. It does so in two ways firstly, s 88(1) provides that the appointment or failure to appoint a person to a vacant non-executive position "or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter". It is designed to exclude industrial arbitration in relation to appointments (see heading to s 88). The exercise of unfair dismissal powers is an industrial arbitration constrained by reference to the scope of industrial matters (Shop, Distributive & Allied Employees' Association (NSW) v Librus Pty Ltd (t/a Dymocks Parramatta) (2001) 103 IR 390 at 395-397). It is to be borne in mind that at the time of passing the Police Act in 1990, the basis for seeking reinstatement arose by industrial arbitration limited by the definition of "industrial matter" rather than under specific unfair dismissal provisions which did not come into existence until 1991. The Respondent submits that there is no reason to believe that this policy approach embodied by s 88 continued to apply to the arbitration of unfair dismissal claims. 50 Secondly, s 88(3) provides that no proceedings for any relief lie in respect of the appointment or failure to appoint a person to a vacant non-executive position, the entitlement or non-entitlement to be so appointed or validity or invalidity of such an appointment. 51 Section 88 bars any industrial arbitration and legal proceedings seeking relief in relation to the decision not to confirm a probationer's appointment. It operates to oust the Commission's jurisdiction and its application is of "sweeping import" (Godkin v Commissioner of Police [2007] NSWIRComm 202 [54]-[59]). 52 The exclusion of the Commission's jurisdiction affected by s 88(1) applies to "any matter, question or dispute relating" to the appointment or failure to appoint a person to a vacant non-executive position. This extends the privative provision to anything touching the issue of appointment. The Commission's jurisdiction to hear or determine any claim seeking relief in respect of the decision is therefore withdrawn.

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See also discussion in Commissioner of Fire Brigades v NSW Fire Brigade Employees Union (on behalf of Levy) [2009] NSWIRComm 138. 54 The Applicant was employed under a contract of employment. Under the contract of employment, the Applicant was employed on a probation period of 12 months. However, the contract provides it may be extended in limited circumstances where the Applicant's academic progression or work performance is unsatisfactory (clause 6). The parties entered into the contract before she commenced employment as a probationary constable. 55 The period of the probation was reasonable because it was established under the Police Regulation 2000 (which have been replaced by the Police Regulation 2008) (Fischer v Commonwealth (1995) 63 IR 401 at 405; Fischer v Commonwealth (1996) 67 IR 123 (on appeal); Potter v the Australian Capital Territory (No 2) (1997) 74 IR 403 at 409). Even if the Police Regulation could not define the reasonableness of the probationary period, the Respondent submits having regard to important public functions of a police officer and the complex and dangerous nature of police work, the period of 12 months was reasonable. 56 However, the Respondent acknowledges that the Commission as presently constituted is bound by the Full Bench decision of Ferraris v Commissioner of Police [2006] NSWIRComm 243. The Respondent formally submits that the Full Bench was wrong in so far as it held that: (a) the operation of clause 6(1)(c) of the Industrial Relations Regulation is limited to dismissals under the contract of employment rather than pursuant to a power granted under s 80(3) of the Police Act ; (b) the decision to dismiss under s 80(3) of the Police Act did not also amount to a dismissal under the contract of employment; (c) the probationary period under the contract was not determined in advance where it established a period but reserved a right to lengthen or shorten the probationary period; (d) the probationary period could not be established in advance under the Regulation 12 of the Police Regulation 2000 . 57 The Respondent adopts the reasons for decision at first instance of the Commission as currently constituted in Ferraris v Commissioner of Police [2005] NSWIRComm 240 as being the correct statement of the law. 58 The Respondent merely takes the formal objection at this stage of the proceedings. If the Commission's decision in this matter is appealed to the Full Bench and the point remains controversial, the Respondent reserves its rights to provide additional submissions on this issue. INTERVENOR'S SUBMISSIONS ON JURISDICTION

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59 Given the limited intervention sought by and granted to the Police Association of NSW, its submissions deal exclusively with the issue of jurisdiction whereas the Applicant's legal representatives confine themselves to the merit issues going to the question whether the Applicant's dismissal was harsh, unreasonable or unjust. 60 The Association developed its argument firstly by way of a broad overview of the operation of the Industrial Relations Act and the Police Act and secondly, by way of addressing the Respondent's contentions set out above. As a starting point, the Association observes that Pt 6 of Ch 2 of the Industrial Relations Act applies to the dismissal of "any public sector employee" (s 83(1)(a) and for the purpose of that Act, a public sector employee is defined in the Dictionary to the Act as follows: public sector employee includes an employee of a public authority (including an area health service or public hospital) and a member of the Public Service, the Police Service or the Education Teaching Service 61 Section 83(3) of the Industrial Relations Act makes express reference (by way of exclusion) to the dismissal of any such employee who is an executive officer to whom Part 5 of the Police Act 1990 (formerly known as the Police Service Act 1990). 62 The Police Act at s 5 defines the NSW Police Force as comprising: (a) the Commissioner (b) members of the NSW Police Force Senior Executive Service (c) all other police officers and administrative officers employed under this Act (d) temporary employees 63 The Police Act at s 12 and the Police Regulation at cl 5 together set out the rank and grade structure within the NSW Police Force at the bottom of which is the rank of constable and whilst there is no specified rank of probationary constable, it is a requirement of s 80(2) of the Police Act that a police officer when first appointed to the rank of constable, must be appointed on probation. A constable so appointed is nonetheless a member of the NSW Police Force and as such is a "public sector employee" for the purpose of s 83(1)(a) of the Industrial Relations Act. In this way, the Association submits, it can be seen that the two statutes were drafted in order to operate concurrently and as much is confirmed when regard is had to two relevant considerations. 64 Firstly, s 405 of the Industrial Relations Act provides in relation to public sector employees as follows: 405 Statutory provisions relating to public sector employees (1) Any award or order of the Commission does not have effect to the extent that it is inconsistent with: (a) a right of appeal under the Government and Related Employees Appeal Tribunal Act 1980 or the Police Service Act 1990 , or (b) a function under the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty. (2) The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1). (3) This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals). 65 Secondly, the historical derivation of sections 83, 90 and 405 of the Industrial Relations Act and the concurrent derivation of s 218 of the Police Act were specifically intended to ensure that the two statutes would operate harmoniously particularly in circumstances where a police officer commenced proceedings under Part 6 of Chapter 2 (Unfair Dismissals) of the Industrial Relations Act. 66 The Association, like the Respondent, acknowledges that the Commission is bound by the Full Bench decision in Ferraris (supra). Unlike the Respondent however, the Association relies upon Ferraris in support of its contention that the Respondent cannot call in aid of its jurisdictional challenge, the exclusionary provisions of cl 6(1)(c) of the Industrial Relations (General) Regulation 2001. 67 Although the Association advances grounds upon which to conclude Ferraris was correctly decided by the Full Bench (contrary to the Respondent's submission) it is plainly not a matter for discussion here and I refrain from doing so accordingly. 68 Turning then to the remainder of the Association's argument in which the other grounds relied upon by the Respondent are addressed, it is submitted that the proper approach to the operation of the principle of implied repeal is to be found in the case law. 69 In Saraswati (supra), for example, Gaudron J said at [17]: It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268, per Fullagar J at p 276, and per Windeyer J at p 290. 70 That judgment was cited with unanimous approval by the High Court in Shergold v Tanner (2002) 209 CLR 126 per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ at [34]. 71 In Ferdinands (supra), the following passage appears in the joint judgment of Gummow and Hayne JJ at [18]: It has long been recognized that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Inconsistency lies at the root of this principle. But, as Isaacs J pointed out in 1907, "[i]t is very hard to formulate a rule which will apply to every case of implied repeal". There are however, two cardinal considerations. First, as Gaudron J said in Saraswati v The Queen , "[t] here must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate". Secondly, deciding whether there is such inconsistency ("contrariety" or repugnancy") that the two cannot stand or live together (or cannot be "reconciled") requires the construction of, and close attention to, the particular provisions in question. 72 The Association's primary contention is that there is no inconsistency and therefore no work for the principle of implied repeal to do but the Association agrees nonetheless with the Respondent's general statement by reference to the decision of Boland J (as he then was) in Police Association (No 3) (see paragraph 5 above). 73 In reviewing the legislation and as mentioned above, the Association referred to s 218 of the Police Act which provides as follows: 218 Industrial Relations Act 1996 not affected (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996 . 74 Those provisions together with s 405 of the Industrial Relations Act are said by the Association to indicate that the Commission's unfair dismissal jurisdiction is unimpaired with respect to police officers (Police Association v NSW Police (No 3) (2005) 144 IR 150 at [48]-[55]). 75 In summary, the application of the principles of statutory construction would lead the Commission to the view that there is no inconsistency between the statutes and therefore, no work for the principle of implied repeal to do. 76 In dealing with the other grounds relied upon by the Respondent in its jurisdictional challenge, the Association set out the relevant legislative history and in particular referred to the detailed examination of that history in Police Association (above) where his Honour traced the development of the Commission's existing powers to make binding orders or awards involving police officers following from Sir Alexander Beattie's 1974 Report entitled Access to New South Wales Industrial Tribunals by Public Servants, Teachers in Government Schools and Police (see Industrial Arbitration Amendment Act 1976 and Industrial Arbitration (Reinstatement Awards) Act 1978). 77 As was observed in Police Association at [40]-[42]: 40 The Industrial Arbitration Act was further amended in 1978 by the Industrial Arbitration (Reinstatement Awards) Amendment Act No 99 of 1978 (NSW), which inserted a new s 20A granting the Commission significantly wider powers in relation to the reinstatement of dismissed employees. In introducing the Bill, the Premier (Mr Wran) addressed the problem posed by an overlap of remedies between the Government and Related Employees Appeal Tribunal Act 1980 (NSW) (GREAT Act) and the powers conferred on the tribunals constituted by the Industrial Arbitration Act , including the Commission (see New South Wales Parliamentary Debates (Legislative Assembly) 20 February 1980, 4547 at 4551): As to the problem of duel (sic) access, the Government has decided that there should be an option in disciplinary cases so that a person may elect to forego a right of appeal to GREAT and let his union pursue the matter on his behalf through the Industrial Commission of New South Wales. This was particularly sought by a few of the unions, but the essential point is that the decision in each case will be made by the individuals involved. In effect, the arrangement is an extension of that in the Industrial Arbitration (Reinstatement Awards) Act 1978 which was limited to dismissal. As I said earlier, these are important Bills. They restate appeal rights generally for Government employees, they are acceptable to the parties and the Government believes that the new system will be a significant improvement over the existing system. 41 Section 20(1D) was amended by the 1978 Amendment Act to provide an exception for the operation of s 20A, so that the provision of s 20(1D) allowed for the making of an award by the Commission directing the reinstatement of a public servant, teacher or police officer in accordance with the provisions of s 20A. So the position was that as a consequence of the 1978 Amendment Act the previous provision, which rendered nugatory any award made that was inconsistent with any function, etc., conferred or imposed by or under the provisions of the Police Regulation Act with respect to the discipline, etc., of a member of the police force, was modified to give the Commission the power to reinstate an officer that had been dismissed as part of any disciplinary process. 42 Importantly, this exception to the exclusion of the Commission's power to make an award or order inconsistent with, inter alia, a function with respect to the discipline, etc., of a police officer continued in the form of s 405(3) of the Industrial Relations Act . 78 The Association contends, applying the usual principles of statutory construction and giving the words used their plain and ordinary English meaning (viewed in context), that the statutes are intended to operate together and that access to the Commission's unfair dismissal jurisdiction by police officers is expressly permitted by the operation of s 218 of the Police Act and ss 83 and 405(3) of the Industrial Relations Act. 79 The Association pointed by way of relevant legislative history, to predecessor legislation (Police Regulation Act 1899 and Police Regulation (Appeals) Act 1923) and in particular to the right of a constable appointed on probation to appeal to the Crown Employees Appeals Board (and later the Government and Related Appeals Tribunal) in the event of being dismissed as a form of punishment (see Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721). That jurisdiction, as Boland J observed at [41] of Police Association was modified in 1978 to vest in the Commission, power to reinstate an officer who had been dismissed as part of any disciplinary process. At the time of enactment of the Police Service Act 1990, a trade union under s 20A of the Industrial Arbitration Act 1940 had a right to pursue a reinstatement award on behalf of a dismissed employee and there was at that time, no restriction on the capacity of a probationary employee (including a constable appointed on probation) to pursue a reinstatement award under s 20A of the Industrial Arbitration Act. 80 Further, at the time of its enactment, the Police Service Act 1990 contained s 73 (the predecessor to the current s 80) and s 117 (the predecessor to the current s 218) which were respectively, in the following terms: 73 Appointment of constables (1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3) The Commissioner may dismiss any such probationary police officer from the Police Service at any time and without giving any reason and

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117(1) The Industrial Relations Act 1940 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Arbitration Act 1940. 81 These provisions although numbered differently, have remained essentially unchanged despite the passage of the 1991 and 1996 Industrial Relations Acts the latter having been passed in a form that continued to permit police officers, including constables appointed on probation, to seek redress against unfair dismissal. 82 The Association further contends in support of the proposition that the Police Act and the Industrial Relations Act can stand together, that s 181D(7) of the former is a privative provision clearly designed to confine rights of review other than those provided expressly in Division 1C and that by its reference to Division 1C the privative provision expressly contemplates the Commission otherwise having a right to review the Commissioner's decision and expressly excludes it from doing so. From the time the general industrial relations legislation in NSW afforded police relief against unfair dismissal, the industrial relations legislation and the Police Act have been carefully crafted to operate concurrently. It is upon that and other bases which do not require recitation here, that the Association contends that the Respondent's reliance upon the High Court's decision in Ferdinands is misplaced. 83 As to the Respondent's central contention in relation to explicit contradiction namely, that there is direct textual inconsistency between s 80(3) of the Police Act and s 84 of the Industrial Relations Act, the Association submits that such a conclusion would only be reached in ignorance of the proper approach to statutory construction. The proper approach requires consideration of the relevant provisions in the context of the statute as a whole, the existing state of the law and the mischief the statute was intended to remedy. By reason of the combined effect of ss 83 and 405(3) of the Industrial Relations Act and s 218 of the Police Act, the Commission would accept that the former statute is unaffected by anything in the latter. Secondly, Part 6 of Chapter 2 of the Industrial Relations Act applies to the dismissal of any public sector employee including members of the NSW Police Force and thirdly, the restrictions that otherwise exist in s 405(1) of the Industrial Relations Act do not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair Dismissals). As to the notion that a direct inconsistency may be found between the Commissioner's power to dismiss a probationer without giving any reason (s 80(3) of the Police Act) and the matters contemplated by s 88 of the Industrial Relations Act, it is submitted by the Association that such matters are only matters which the Commission may, if appropriate, take into account and as such do not render the statutes incapable of dual existence and operation. 84 At the very least, the Commission would not be persuaded that the Respondent has made out the very strong grounds to defeat the basic rule of construction that there is a general presumption that the legislature intended that both provisions should operate (see Saraswati). 85 Similarly in relation to the Respondent's contention as to implicit contradiction, the Association strongly resists the notion that the capacity to dismiss a probationary police constable without reason operates as a separate and distinct scheme for the dismissal of such officers - that is, separate and distinct from the scheme set out under Part 9 of the Police Act and therefore, by extension, a separate and distinct scheme for the dismissal of probationers which is devoid of any rights of review. 86 To the contrary, the Association contends that the existence and operation of s 218 of the Police Act and ss 83 and 405 of the Industrial Relations Act is the complete answer to the proposition of inconsistency between and therefore implied repeal of statutory enactments, a proposition which was run and lost (albeit not in relation to probationers) in Police Association NSW v Commissioner of Police (No 3) (2005) 144 IR 150 at [55]-[56]. 87 As to the Respondent's proposition that a decision to dismiss a probationer constitutes a decision not to appoint and is therefore by reason of s 88 of the Police Act, not an industrial matter for the purposes of the Industrial Relations Act, the Association submits that the Commission's jurisdiction to hear and determine unfair dismissal matters is not conditioned by the phrase "industrial matters" but rather exists by force of the provisions contained within Part 6 of Chapter 2 of the Industrial Relations Act (see Police Association (No 3) above). 88 Furthermore, the proposition wrongly conflates the notions of appointment or failure to appoint on the one hand and dismissal on the other, when in fact the two concepts are and always have been quite separate for the purposes of employment law (for discussion again see Police Association (No 3)). 89 Having carefully considered the various arguments raised in the course of the jurisdictional challenge, I am of the view that those advanced by the Police Association are more cogent and persuasive and I accept them to the exclusion of those advanced by the Respondent. 90 There is compelling force in the Association's contention that from the time unfair dismissal rights were first conferred upon police officers, both the legislative scheme regulating police employment and the general industrial relations legislation have been drafted and enacted so as to operate harmoniously. 91 In my opinion and again as the Association contends, there is nothing in the two legislative schemes, in their history or in any other relevant context that creates the very strong grounds necessary to defeat the basic rule of construction which requires the presumption that the legislature intended that both provisions should operate (Saraswati at [17]). In my view, the Respondent has not demonstrated the inconsistency, contrariety or repugnancy (Ferdinands at [18]) necessary to establish that the Police Act and the Industrial Relations Act cannot stand together or cannot be reconciled. I consider and find accordingly that the current application is within jurisdiction. THE MERIT CASE

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92 The Applicant Jessica Parfrey, commenced training at the NSW Police College in Goulburn on 4 September 2006. She was attested on 11 May 2007 and stationed shortly thereafter at Waratah Local Area Command in the Hunter Region as a probationary police constable. 93 On 30 September 2008, she was dismissed from the NSW Police Force by order made pursuant to s 80(3) of the Police Act 1990 (NSW). The allegations giving rise to the order are conveniently set out in the document served on the Applicant in the following terms: Order for Dismissal Issued Pursuant to Police Act (NSW) 1990 s 80(3) Introduction. 1. I, Assistant Commissioner Michael Corboy, Commander, Education & Training Command, as the authorised delegate of the Commissioner of Police, believe that you should be dismissed from your employment as a probationary constable with the New South Wales Police Force pursuant to the Police Act (NSW) 1990. s. 80(3). Accordingly, by this Order I dismiss you from the NSW Police Force. 2. In reaching my decision, I have considered the matters set out in the Notice served on you on 6 May 2008. I also have given careful consideration to the matters you raised in your response to that Notice dated 24 July 2008. In particular, I have given careful consideration to your conduct, integrity and performance as outlined below. Issue 1: Sexual harassment and/or inappropriate conduct concerning Witness A I am satisfied that in or about May 2007, you said to Witness A words to the effect: Are you happy in your marriage? Your marriage won't last and you will end up with me because everyone knows that you're supposed to fall in love with your buddy; and [When Witness A declined your advances]: What is wrong with you? I am a nineteen year old girl who is here for you and you won't do anything...You only said that because I won't sleep with you. On or around 27 May 2007, you were counselled by Senior Sergeant Michael Gorman. He told you that it was inappropriate to make comments of a sexual nature to Witness A and to attempt to be overly familiar with him. He told you that your comments to Witness A along those lines were to cease. I am satisfied that, even after you were given this direction, you said to Witness A words to the effect: [That you would] take it in any hole. I just want to fuck you. Can't we just fuck? Can't we just have an affair? I won't tell anyone. I have gone [?] days without sex; do you know how hard that is? Why, aren't I good enough for you? What is wrong with you? I am a nineteen year old girl. What is wrong with you? Most blokes would love to have a nineteen year old. You know you want to fuck me . I will give you two days...two days until you start to think of me. I bet you think of me when you wank. On or around 15 June 2007, Senior Sergeant Gorman spoke with you in the company of Constable Gerber. Senior Sergeant Gorman told you that further inappropriate comments had been attributed to you since your meeting with him on or around 27 May 2007. You admitted that you had made certain comments, but you claimed that they were meant only in jest. In the circumstances, I am satisfied that your conduct was contrary to the NSW Police Force Gender Based and Sexual Harassment Policy (Sexual Harassment Policy) which relevantly provides: Someone sexually harasses another if: · they make an unwelcome sexual advance or unwelcome sexual request for sexual favours; · they engage in other unwelcome conduct of a sexual nature; when a reasonable person, having regard to all the circumstances, would have anticipated the person harassed would be offended, humiliated or intimidated. Conduct of a sexual nature includes making a statement (orally or in writing) of a sexual nature to someone or in their presence. Behaviour is unwelcome if the individual alleging sexual harassment perceives it to be. It is irrelevant that the behaviour does not offend others or has been an accepted feature of the work environment in the past. Further, or in the alternative, I am satisfied that your conduct was contrary to the NSW Police Force Code of Conduct and Ethics (Code of Conduct), which relevantly states: 4. An employee of NSW Police must treat everyone with respect courtesy and fairness. Issue 2: Sexual harassment and/or inappropriate conduct concerning Senior Constable Craig Leonard. I am satisfied that on or around 15 June 2007, during your conversation with Senior Sergeant Gorman, he handed you a copy of the Sexual Harassment Policy. I am also satisfied that during that conversation you gave an undertaking to Senior Sergeant Gorman that you would not make any further inappropriate comments. On or around 19 June 2007, you had a conversation with Sergeant Heather Campbell in which you informally were counselled about the need to ensure that you did not make inappropriate comments of a sexual nature to male officers, including suggestive remarks. The sexual Harassment Policy again was discussed with you. On or about 11 August 2007, while off duty, you went to a race meeting at Broadmeadow with work colleagues. Afterwards, with a number of work colleagues, including Senior Constable Craig Leonard and Constable Matthew Hill, you went to the 'Exchange Hotel'. I am satisfied that, while at the hotel, you approached Senior Constable Leonard and offered to give him a "head job" in the toilet. I am satisfied that when this offer was declined, you then suggested that he should go with you to the car park to have sex. This advance also was declined. Senior Constable Leonard told another officer about the offers you made and that other officer told you to leave Senior Constable Leonard alone, because he was married. In the circumstances, I am satisfied that your conduct towards Senior Constable Leonard was contrary to the Sexual Harassment Policy. Further, or in the alternative, and noting that your conduct towards Senior Constable Leonard occurred after you had been reminded that you were not to make inappropriate comments or comments of a sexual nature to male officers, I am satisfied that your conduct was contrary to the Code of Conduct, which relevantly states: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty.. 4. An employee of the NSW Police must treat everyone with respect courtesy and fairness... 5. An employee of NSW Police must comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction. Issue 3: Sexual harassment and/or inappropriate conduct concerning Constable Matthew Hill I am also satisfied that, on or about 11 August 2007, while at the 'Exchange Hotel' you approached Constable Matthew Hill, rubbed his left arm and said words to the effect, "I know you want me Hilly". I am satisfied also that a few days later, you exchanged text messages with Constable Hill. In these messages, Constable Hill mentioned to you that he thought your sister was attractive, to which you responded "You know you don't want her, you want me Hilly". When Constable Hill replied "I'm sorry but I fucking don't want you", you responded, "yeah sure Hilly, I know you do". In the circumstances, I am satisfied that your conduct towards Constable Matthew Hill was contrary to the Sexual Harassment Policy. Further, or in the alternative, and noting that your conduct towards Constable Matthew Hill occurred after you had been reminded that you were not to make inappropriate comments or comments of a sexual nature to male officers, I am satisfied that your conduct was contrary to the Code of Conduct, which relevantly states: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty... 4. An employee of NSW Police must treat everyone with respect courtesy and fairness... 5. An employee of NSW Police must comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction. Issue 4: Sexual harassment and/or inappropriate conduct concerning Senior Constable David Collier. I am satisfied that, while off duty on or around 27 September 2007, between around 5.00pm and 10.00pm, you attempted to call Senior Constable David Collier on 12 occasions, and that you sent six text messages to him. I am satisfied also that when you finally spoke to Senior Constable Collier, you asked him what he was wearing, and that you told him that you were "lying in bed in just underwear". Senior Constable Collier told you that he was married. You responded by saying that "all guys tell girls that", before asking if he really was married. I am satisfied also that you suggested that he could have an affair with you, and that you could help him study by you "taking an item of clothing off for each question" that he answered correctly. I note that at 9.12am on 28 September 2007, you sent a text message to Senior Constable Collier which stated: Congrats again on the interview.... sorry if I was inappropriate last night. I was a dick...now you've got one up on me. Sorry. In the circumstances, I am satisfied that your conduct towards Senior Constable Collier was contrary to the Sexual Harassment Policy. Further, or in the alternative, and noting that you conduct towards Senior Constable David Collier occurred after you had been reminded that you were not to make inappropriate comments or comments of a sexual nature to male officers, I am satisfied that your conduct was contrary to the Code of Conduct, which relevantly provides: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty... 4. An employee of NSW Police must treat everyone with respect courtesy and fairness... 5. An employee of NSW Police must comply with any lawful and reasonable direction given someone in NSW Police who has authority to give the direction. Issue 5: Inappropriate and Unprofessional Comment I am satisfied that, while on duty with Constable Lyndal McOnie, a member of the public approached you and stated that he had just witnessed a van turn into a side street with its headlights off. It appears that you and Constable McOnie then identified an empty van and that the person thought to be the driver appeared to be intoxicated at the time. Constable McOnie states that she considered requiring this man to undergo a roadside alcohol breath test. This man responded that you were not permitted to do so. Constable McOnie telephoned Sergeant Tull, who confirmed this to be the case. Constable McOnie stated that you told the man that he was to be arrested for refusing to provide a breath sample. Constable McOnie told you that you couldn't do that, because you had not witnessed the man driving the vehicle. I am satisfied that you later said to Constable McOnie words to the effect; "I would have run with it. I would just say that I saw him driving it around the corner". Constable McOnie responded in words to the effect: No, because if it ends up in court and I'm asked if we saw him driving the van, because that's what you stated, I'm put in a position of either having to drop you in it, or say that you lied or I have to lie to the court which I'm not prepared to do. Either way it puts me in a bad position. In the circumstances, I am satisfied that your conduct was contrary to Code of Conduct, which relevantly provides: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty... Issue 6: Inappropriate and Unprofessional Comment. I am satisfied that on or around 16 September 2007, while on patrol with Constable Matthew Bowman, and after being requested by a dispatcher at police radio VKG to look out for a well known offender, you said to Constable Matthew Bowman words to the effect: We'll find him, and I will get in his face and piss him off until he hits me and I well get my HOD [Hurt on Duty insurance claim] and you will get an easy lock up. I am also satisfied that, on another occasion, you had a conversation with Constable Bowman in relation to officers attending the scenes of fatal vehicle collisions, during which you said to Constable Bowman words to the effect: I wanna go and see that. Stuff like that will fuck up my head and I can write how it affected me for my HOD [Hurt On Duty insurance claim]. In the circumstances, I am satisfied that your conduct was contrary to the Code of Conduct, which relevantly provides: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty... Issue 7: Exclusion from the Associate Degree in Policing Practice. In or around September 2007, you failed subject PPP231 (Police Practicum) in the Associate Degree in Policing Practice (ADPP) at Charles Sturt University. As a result, you were placed on a Probationary Constable Performance Development Plan for a period of 12 weeks. That plan included the following acknowledgment by you: I also acknowledge that failure to meet the required assessment standards could result in further action being taken, including dismissal. Notwithstanding this, on 26 October 2007, it became apparent that submission of your Duty Book for review already was overdue. In or around December 2007, the Duty Book component of PPP231 was assessed by your Education Development Officer as unsatisfactory. The result was that you failed the subject PPP231 (Police Practicum) a second time. On or around 17 January 2008, you were informed by a representative of the School of Policing Studies, Charles Sturt University, that you were excluded from the ADPP for a period of two years from 15 January 2008. Issue 8: Poor Operational Performance I also considered that your operational performance was such that, on or around 31 October 2007, your Commander found it necessary to implement an Interim Management Plan, which included provisions in relation to: · your professionalism and conduct - to act and speak in a professional manner whilst on and off duty; · your attention to duty - that at scenes of crime and other incidents you are to remain professional and focused on your duties; · your personal mobile telephone use - you are to cease the excessive personal use of your mobile telephone service which distracts you from your duties; · loss of property - you are to present all items of personal equipment issued to you for inspection each week and adequately maintain and secure personal items of equipment issued to you; and · your work management - you are to undertake academic and operational tasks in a timely and accurate manner. Considerations In considering the issues outlined above, I note that, on 4 September 2006, you acknowledged that you had read and understood the Code of Conduct. You specifically acknowledged that; "If I fail to comply, I am subject to a range of management options or remedies up to removal from the NSW Police". I also have considered that in Part 8 of your conditional offer of employment as a Probationary Constable (the Conditional Offer) you acknowledged: My performance including conduct...and integrity...throughout my probationary period must also be deemed satisfactory...I understand failure to achieve a satisfactory level of academic performance...conduct and integrity may result in termination of my employment. I also note that in Part 9 of the Conditional Offer you acknowledged: I have read and fully understand the NSW Police Code of Conduct and Ethics and will comply with the NSW Police Code of Conduct and Ethics. I also note that in Part 10 of the Conditional Offer you acknowledged: If I fail to progress academically...breach the Service's Code of Conduct and Ethics, including the spirit and intent thereof, am excluded from the ADPP course at any time and/or any reason...I may have my employment terminated at any time. Conclusions I am very concerned that the matters set out above indicate that you are not fit to discharge the duties required of a Probationary Constable, and are not suitable to be a member of the NSW Police Force. I am particularly concerned about the persistent nature of your aggressive and unwanted conduct of a sexual nature towards four colleagues. The fact this conduct continued after being counselled about the inappropriateness of your behaviour is alarming.

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Also of great concern is your willingness to fabricate evidence about the circumstances of an arrest. Also of great concern to me is your willingness to fabricate the circumstances of personal injury, thereby enabling you falsely to make a claim on a publicly funded insurance policy. In relation to your exclusion from the ADPP, I note that the exclusion since has been lifted. Although not determinative of the action I have decided to take, the facts that you failed a subject twice and were excluded from further study does need to be considered by me in coming to a conclusion about suitability to continue to be employed as a police officer. I do not suggest that the issues described in the Interim Management Plan or the fact of your exclusion from the ADPP form grounds for dismissal when considered discretely. However, I do consider that these issues weigh against any decision to take any action alternative to dismissal, in respect of your conduct described above. I also note that your claim in your response that many of those issues have been addressed. Integrity is a core value of the NSW Police Force, and I believe that the highest standards of personal integrity are critical for a person to be a police officer. I consider that your conduct has been entirely inconsistent with the standards expected of an officer of the NSW Police Force by both the Commissioner of Police and the NSW community. In all the circumstances described in this Order, I have decided that, especially given your status as a probationer, the alarming attitude you took towards colleagues and your conduct towards and lack of respect for them, even after being directed to change your attitudes, display an absence of the standards of integrity expected of a police officer. Your conduct convinces me of your unsuitability to be confirmed as a constable of police. On this basis alone, I consider that dismissal would be appropriate. The other issues raised in this Order reinforce my decision. Your dismissal takes effect from the date of this order. You are to be paid two weeks salary in lieu of notice. Your final pay, including any annual leave accrued to the date of dismissal, is to be deposited to your account as soon as possible. You are to return all items of uniform and any other items or property belonging to NSW Police Force issued to you, to the Commander, Waratah Area Command, as arrangements to release money owing to you at the time of termination of your employment cannot be made until all such items have been returned. It is in your interest to do so promptly. Michael Corboy, APM Assistant Commissioner Commander Education & Training Command 94 Failing successful conciliation, the matter was programmed for arbitration during the course of which and in addition to the documentary material relied upon by the respective interests, evidence was taken from the following witnesses all of whom, with the exception of the Applicant were called by the Respondent. · Jessica PARFREY, Applicant · Witness A, a serving police officer in respect of whom an unopposed non-disclosure order was made · Senior Constable Melanie MAGUIRE, West Wyalong Highway Patrol, Griffith LAC · Senior Sergeant Michael GORMAN, Waratah Police Station, Newcastle City LAC · Sergeant Shane BUGGY, Waratah Police Station, Newcastle City LAC · Senior Constable Craig LEONARD, Waratah Police Station, Newcastle City LAC · Constable Alison MACMILLAN, Toronto Police Station, Lake Macquarie LAC

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· Constable Matthew Hill, Waratah Police Station, Newcastle City LAC · Senior Constable David COLLIER Newcastle Highway Patrol, Newcastle City LAC · Constable Lyndal McONIE, Waratah Police Station, Newcastle City LAC · Constable Matthew BOWMAN, Waratah Police Station, Newcastle City LAC · Sergeant Heather CAMPBELL, Newcastle Police Station, Newcastle City LAC · Inspector/Duty Officer Anthony JOICE, Maitland Police Station, Central Hunter LAC · Detective Senior Sergeant Debra DAWES, Professional Development Unit, Education & Training Command, NSW Police College, Goulburn 95 In defending the proceedings the Respondent accepts that it bears the onus of proving, in the absence of admissions, that the conduct alleged probably occurred (Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70). 96 The Respondent also points by way of reference to s 169(1) of the Industrial Relations Act, to the obligation on the Commission to take into account, in the exercise of its functions, the principles contained in the Anti-Discrimination Act 1977. In so doing, it is appropriate to assess the applicant's conduct against the benchmarks established by the employer's code of conduct, sexual harassment policies and legislative obligations and to determine whether there have been breaches (New South Wales Attorney General's Department v Miller (2007) 160 IR 185). 97 The provisions of the Anti-Discrimination Act to the extent applicable here, are as follows: 22A Meaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 22B Harassment of employees, commission agents, contract workers, partners etc (1) It is unlawful for an employee to sexually harass: (a) an employee, or (b) a person who is seeking employment with the employer (2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer. 98 As the Respondent submits, the test for whether sexual harassment has occurred is an objective one and is determined by reference to whether a reasonable person would consider the conduct in question likely to offend, humiliate or intimidate (Caton v Richmond Club Limited [2003] NSWADT 202; O'Callaghan v Loder & Anor (No. 2) [1983] 3 NSWLR 89; Webb v Newcastle Hire Cars Pty Ltd [2004] NSWADT 142; Leslie v Graham [2002] FCA 32 at [70]). 99 The terms "sexual advance", "request for sexual favours" or "conduct of a sexual nature" are not defined in the Anti-Discrimination Act. The terms are intended to cover a broad range of behaviours. As Mathews DCJ stated in O'Callaghan v Loder [1983] 3 NSWLR 89 (at 103): The sexual conduct of the employer can vary, on the one hand from attempts at sexual intercourse or some other overt explicit connection, through the whole range of sexual contact including kissing, touching, pinching, and can include purely verbal approaches such as sexual propositions or gender based insults or taunting. It would be wrong for this tribunal to attempt an exhaustive list, as human inventiveness would almost certainly find other activities or approaches, equally unwelcome and unpleasant, which might then be denied the label of harassment. 100 The kind of conduct that has been found to constitute sexual harassment includes: (a) proposals of sexual intimacy ( Spencer v Dowling [1997] 2 VR 127); (b) specific questions about a person's sex life ( Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503; Phillips v Leisure Coast Removals Pty Ltd (1997) EOC 92-899); (c) sexually explicit comments ( Hopper v Mount Isla Ltd (1997) EOC 92-879; Tulk v Moore (1997) EOC 92-883); (d) persistent personal invitations (cf Doyle v Riley (1995) EOC 92-748); and (e) banter and comments with sexual innuendo and sexual content ( Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 at [28] - [34]). 101 However, the conduct does not have to be a "continuous or repeated course of conduct" (Hall v A & A Sheiban Pty Ltd at 514 - 515, 532). It can be a single incident or a number of specific events. 102 In order to be "unwelcome" conduct, the conduct must not be "solicited or invited" and the complainant must regard the conduct as "undesirable or offensive" (Aldridge v Booth (1988) 80 ALR 1 at 5). Ambivalence towards a person's conduct does not necessarily defeat a claim of sexual harassment (Tenuyl v Delaney and Anor (1996) EOC 92-177). The person who is the victim need not have articulated that the conduct is unwelcome in nature (Johanson v Michael Blackledge Meats [2001] FMC 6; Hall and Ors v A & A Sheiban (1989) 85 ALR 503). 103 Conduct can amount to unlawful sexual harassment even where the person who commits the conduct at issue did not intend to sexually harass. In Johanson v Michael Blackledge Meats [2001] FMCA 6, Driver FM found: The test here is objective and it does not matter whether the perpetrator intended to act in a sexual way or, indeed, was aware that he or she was acting in a sexual way (at [84]). 104 It is an objective test determined by reference to the reasonable person in the role of a hypothetical bystander rather than a reasonable person standing in the shoes of the perpetrator or victim (Leslie Graham [2002] FCA 32 at [70]). Under s 53(3) of the Anti-Discrimination Act, an employer can avoid responsibility for the actions of its employees if it can be shown that it has taken reasonable care to prevent the conduct from occurring. This places an obligation on an employer to take positive steps including developing a clear sexual harassment policy, communicating the policy to employees and making sure it is understood (D v Berkeley Challenge Pty Ltd [2001] NSWADT 92). 105 However, the development and promulgation of policies will not, by themselves, be sufficient. It also requires taking appropriate remedial and disciplinary action when it is breached including dismissal of employees who engage in serious breaches (Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 at [99]-[104]). Failure to take a complaint seriously and cause it to be properly investigated may be the basis for a finding of liability against an employer (NSW Breeding and Racing Stables Pty Ltd v V and X [2005] NSWCA 114 at [33]). Policies and Procedures 106 The Respondent has a number of policies and procedures concerning sexual harassment and inappropriate conduct in the workplace. These include the Commissioner's Statement of Professional Conduct, the NSW Police Code of Conduct and the NSW Police Force Gender Based and Sexual Harassment Policy. The NSW Police Force Sexual Harassment Policy defines "sexual harassment" in the same terms as the Anti-Discrimination Act. However, it amplifies the circumstances where sexual harassment can arise and specifies examples of the kind of conduct which may constitute sexual harassment. In this sense, the NSW Police Force Sexual Harassment Policy establishes the benchmarks and provides guidance about the application of the policy to practical situations. 107 Relevantly, the NSW Police Force Sexual Harassment Policy states: Conduct of a sexual nature includes a statement (orally or in writing) of a sexual nature to someone or in their presence. Behaviour is unwelcome if the individual alleging sexual harassment perceives it to be. It is irrelevant that the behaviour does not offend others or has been an accepted part of the work environment in the past. 108 Sexual harassment is stated in the Policy to include verbal, non-verbal or physical conduct. An extensive list of examples is set out in the Policy of sexual favours, inferences for sexual favours, persistent questions about someone's private life and the use of sexual language which is not suitable in the workplace. Similarly, the Code of Conduct and Ethics and the Standards of Professional Conduct contain fundamental statements of principles and standards of behaviour prohibiting sexual harassment in the workplace. The Code of Conduct and Ethics states specifically that a police officer cannot harass or discriminate against colleagues for any reason including gender and sets out examples of harassment. The Statement of Professional Conduct sets out the personal obligations of police officers in fulfilling the obligations under the Code of Conduct and Ethics and explicitly requires that police officers obey the law both on and off-duty and not to engage in conduct publicly or privately that brings the NSW Police Force into disrepute. The Ronalds Report 109 The Respondent submits and it is not disputed that the import of the Ronalds Report is that sexual harassment is not a mere matter of paying lip service to compliance with legislation. There is a real and practical relevance to the NSW Police Force. There have been various reported and unreported incidents of sexual harassment in the NSW Police Force that indicated the matters which were not treated with sufficient seriousness (see, for example, Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168 at [74]-[78]; Hollingsworth v Commissioner of Police [2004] NSWADT 17). In 2006, the Respondent requested Chris Ronalds SC, to undertake an inquiry into sexual harassment and sex discrimination in the NSW Police Force. On 22 December 2006, Ms Ronalds SC produced her report entitled Report of the Inquiry into Sexual Harassment and Sex Discrimination in the NSW Police Force (the Ronalds Report). 110 The Ronalds Report found that serious incidents of sexual harassment occurred within the NSW Police Force. However, there was a widespread lack of knowledge and understanding about the sexual harassment complaints procedure. As a result, even though there were genuine complaints of sexual harassment, many were not raised formally or informally and very few formal complaints were made. The Report stated that a large part of the problem was that, in many cases where there is disciplinary outcome imposed on a perpetrator, the outcome was inadequate for the serious misconduct established and therefore deterred police officers from making a formal complaint. Ms Ronalds concluded that the Respondent had been overly cautious about dismissing police officers on the ground of sexual harassment because of a number of previous decisions of the Commission reinstating perpetrators. It had led the Respondent to wrongly being coy in dismissing police officers and imposing a lesser penalty even though dismissal would be objectively justified. 111 The Report recommended that the Respondent take tougher action to correct the perception that sexual harassment is not taken seriously within the NSW Police Force. It strongly recommended that the Respondent should dismiss police officers for serious sexual harassment (para 2.49). Importantly, the Report concluded: Currently there is potential for a police officer to argue that she or he was unaware that their serious misconduct could result in dismissal. There must be clear and unequivocal leadership demonstrating that this is not a valid argument. There needs to be a clear "line in the sand" drawn by the Commissioner and publicly supported by all senior managers that there is zero tolerance of all forms [of] discrimination, harassment, bullying or victimisation (para 2.51). 112 The Ronalds Report makes a number of recommendations including some guidelines for determining the kind of conduct which should warrant dismissal. Relevantly, the Report states that "serious act(s) of sexual harassment...should result in dismissal...[including] a single act, a pattern of repeated conduct, more than one victim or continuation in the face of repeated refusals to comply and requests to cease". Conversely, the Report sets out the type of conduct where dismissal should not occur such as "a single act with less serious ramification", "a single joke" or "one occasion of explicit sexual banter in a secluded environment where no members of the general community could hear or see". The Report's findings and recommendations have informed the Respondent's approach in dealing with sexual harassment within the NSW Police Force. 113 Consistent with the findings of the Ronalds Report, the Respondent revised and published a new policy and reinforced the proper behaviours required by providing education and training to existing and new police officers. In addition, the Respondent ensured that the seriousness of these matters was emphasised at the Goulburn Police Academy. The Applicant's knowledge about and training in the NSW Police Force Sexual Harassment Policy 114 The Applicant acknowledged receiving, reading and signing for the NSW Police Force Code of Conduct and Ethics, Statement of Professional Conduct and Sexual Harassment Policy. In her contract of employment, the Applicant acknowledged that she had read, fully understood and would comply with the NSW Police Force Code of Conduct and Ethics and her appointment may not be confirmed for any breach. The Applicant also attended sessions about these matters during her training at Goulburn Police Academy. The Applicant was handed a copy of the NSW Police Force Sexual Harassment Policy on a number of occasions during her probationary period including 15 June 2007 (from Senior Sergeant Gorman), 28 September 2007 (from Sergeant Payne) and 12 October 2007 (from Sergeant Campbell). 115 The Respondent submits that the Commission would have regard to the new standards and culture prompted by the findings and recommendations of the Ronalds Report and given effect by the publication of new policies and codes and training provided to police officers. In light of the Ronalds Report, the Respondent had an obligation to ensure that it implemented the recommendations and complied with the strict legal obligations under the Anti-Discrimination Act. 116 The Commission's duty to take into account the principles of the Anti-Discrimination Act under s 169(1) must involve having regard to the Respondent's policies and procedures designed to give effect to and comply with its legal obligations. The Respondent must show it has taken all reasonable steps to prevent sexual harassment occurring in the workplace. As the Ronalds Report identifies, an important aspect of satisfying this requirement is that the NSW Police Force takes appropriate action against perpetrators including dismissing police officers for serious acts of sexual harassment. 117 Turning then to the various allegations which underpinned the Respondent's decision to dismiss, it is appropriate to deal individually with them in order to determine whether in each case the Respondent has discharged its onus of proving to the requisite standard that the misconduct occurred. Issue 1: Sexual harassment &/or inappropriate conduct concerning Witness A 118 In the Order, the Respondent determined that the Applicant had engaged in sexual harassment or inappropriate conduct in relation to Witness A on two occasions: (a) In or about May 2007, the Applicant said words to the effect: Are you happy in your marriage? Your marriage won't last and you will end up with me because everyone knows that you're supposed to fall in love your buddy, and [When Witness A declined your advances]: What is wrong with you? I am a nineteen year old girl who is here for you and you won't do anything.... You only said that because I won't sleep with you. (b) In or about June 2007, the Applicant said words to Witness A to the effect: [I would] take it any hole. I just want to fuck you. Can't we just fuck? Can't we just have an affair? I won't tell anyone. I have gone [?] days without sex; do you know how hard that is? Why, aren't I good enough for you? What is wrong with you? I am a nineteen year old girl what is wrong with you? Most blokes would love to have a nineteen year old. You know you want to fuck me. I will give you two days...two days until you start to think of me. I bet you think of me when you wank.

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121 In relation to the June 2007 comments, the Applicant emphatically denied in her recorded interview with Inspector Joice, ever making such comments to anyone. She made similar denials in her response to the Show Cause Notice. In her affidavit, she states that she did not say the words alleged and that any conversation with sexual innuendo or detail between herself and Witness A was without serious intent and "without the purpose of offending or upsetting him". In cross-examination after the difference between denying and not recalling whether the words were spoken was explained to her, she chose the latter. Again, I found her evidence to be equivocal. 122 This is in contrast to the evidence of Witness A which was given in a candid and forthright manner and in my opinion, it is to be preferred to that of the Applicant. It follows that I am satisfied to the requisite standard that the Respondent's allegations in relation to Witness A have been made out. I am supported in that conclusion by the fact that Witness A, who was the Applicant's Field Training Officer when she commenced duty at Waratah Command, expressed concerns to Team Leader Senior Sergeant Gorman about the Applicant's overtly sexual conduct towards him. 123 This occurred within a period of weeks after the Applicant commenced at Waratah and it caused Senior Sergeant Gorman to counsel the Applicant in Witness A's presence, as to the inappropriateness of such conduct. It cannot be suggested, in the light of evidence, that the matter was not taken seriously by Witness A or that Witness A solicited, invited or acquiesced in the conduct or that there was undue delay on the part of Witness A in dealing with it. 124 In my view, the Applicant's conduct towards Witness A constituted sexual harassment and breached the NSW Police Code of Conduct and Ethics and I find accordingly. Issue 2: Sexual harassment and/or inappropriate conduct concerning Senior Constable Craig Leonard 125 As earlier set out, the Respondent's determination in relation to this issue is in the following terms: I am satisfied that on or around 15 June 2007, during your conversation with Senior Sergeant Gorman, he handed you a copy of the Sexual Harassment Policy. I am also satisfied that during that conversation you gave an undertaking to Senior Sergeant Gorman that you would not make any further inappropriate comments. On or around 19 June 2007, you had a conversation with Sergeant Heather Campbell in which you informally were counselled about the need to ensure that you did not make inappropriate comments of a sexual nature to male officers, including suggestive remarks. The Sexual Harassment Policy again was discussed with you. On or about 11 August 2007, while off duty, you went to a race meeting at Broadmeadow with work colleagues. Afterward, with a number of work colleagues, including Senior Constable Craig Leonard and Constable Matthew Hill, you went to the 'Exchange Hotel'. I am satisfied that, while at the hotel, you approached Senior Constable Leonard and offered to give him a " head job " in the toilet. I am satisfied that when this offer was declined, you then suggested that he should go with you to the car park to have sex. This advance also was declined. Senior Constable Leonard told another officer about the offers you made and that another officer told you to leave Senior Constable Leonard alone, because he was married. In the circumstances, I am satisfied that your conduct towards Senior Constable Leonard was contrary to the Sexual Harassment Policy. Further, or in the alternative, and noting that your conduct towards Senior Constable Leonard occurred after you had been reminded that you were not to make inappropriate comments or comments of a sexual nature to male officers, I am satisfied that your conduct was contrary to the Code of Conduct, which relevantly states: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty... 4. An employee of the NSW Police must treat everyone with respect courtesy and fairness... 5. An employee of NSW Police must comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction.

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126 The factual background to this allegation is contained in the following extract of Senior Constable Leonard's response to a directive memorandum served upon him by Inspector Joice on 24 October 2007: Some time in August or September this year Mat HILL had organized a day at Broadmeadow Races to celebrate his birthday. I along with several members of Team C & A attended the day. As I am a member of the Race Course I was able to organize tickets for some people to attend the Members area, with the remainder of the group being in the public area. Jessica PARFREY was out in the Public Area. I am not sure who invited Jessica to the Races. During the course of the day I was able to get my hands on further members tickets and I was able to get everyone, except Jessica and her sister into the members area. Due to certain members of Team C disliking Jessica, I did not obtain Members Tickets for her or her sister. Later Jessica turned up in the Members Area. Someone told me that Jessica or her sister purchased tickets to the Members. Let me say that although I thought Jessica is very outspoken and way too confident for someone with her experience I did not dislike or like her. She is simply a work colleague. After the races the majority of the group, including Jessica and her sister, attended The Exchange Hotel. During the course of the evening I became aware that Jessica was well intoxicated. I was dancing with a few girls from Waratah and a friend of my wife's, Mel Maguire, who works at Newcastle Police Station. I would describe my level of intoxication during the night as moderate. At some stage during the night I became aware that Jessica was taking an 'interest' in me. I say this as she came over and started dancing with me. She tried to dance close with me, in a way that I would call provocative, that is she was attempting to grind herself against me. I thought that this was rather strange as I was not in any way paying her attention or giving her the indication that I might be interested in her. Somehow she has ended up dancing with me in a group. After we finished dancing she started following me around. At first I didn't think too much of it as I thought she was just drunk and being friendly. Later Jessica has indicated to me that she was interested in me sexually. She did this by offering to give me a 'Head Job' in the toilets at the Hotel. She also suggested that we could go out to the car park and have sex. I told her I wasn't interested and nothing was going to happen between us. I also reminded her that I was married. I wasn't abusive or angry with her, I was a bit embarrassed to be truthful, Jessica is a 19 year old girl and I am 40. 127 Senior Constable Leonard recounted the above incident to other police who were present at the Exchange Hotel that night namely, Constable Alison McMillan, Constable Lyndal McOnie and Senior Constable Melanie Maguire each of whom gave evidence about the matter in corroboration of Senior Constable Leonard's version of events. I say in corroboration even though the others did not actually overhear the Applicant's remarks to Senior Constable Leonard because they each observed her manner of behaviour towards him that night and the fact of his recounting her comments to them contemporaneously with their making, permits Senior Leonard's words to them to form part of the res gestae rather than be regarded as inadmissible hearsay (Vocisano v Vocisano (1974) 130 CLR 267 at 273). Both Senior Constable McOnie and Constable McMillan remonstrated with the Applicant about her behaviour and suggested she leave the gathering. 128 I see nothing in the evidence of the Respondent's witnesses, thoroughly tested as it was in cross-examination, which would cause me to doubt its accuracy and reliability and I am comfortably satisfied that it is to be preferred to the exclusion of the Applicant's evidence in relation to this allegation. 129 For her part, the Applicant gave implausible evidence that Senior Constable Leonard touched her inappropriately whilst they were on the dance floor at the Exchange Hotel and that Constable McMillan "intimidated" her and "stalked" her, pushed her on more than one occasion and attempted to provoke a fight. Both Senior Constable Leonard and Constable McMillan strenuously deny behaving in that manner towards the Applicant and it is a question left unanswered in my mind as to why the Applicant failed to mention these matters when interviewed by Inspector Joice. I agree with the Respondent's counsel that one would have at least expected such detail to have been included in the Record of Interview. I did not find the Applicant's evidence in relation to this allegation to be plausible or convincing. In my view, her conduct towards Senior Constable Leonard constituted sexual harassment and breached the NSW Police Code of Conduct and Ethics and I find accordingly. Issue 3: Sexual harassment and/or inappropriate conduct concerning Constable Matthew Hill. 130 In relation to this issue the Respondent reached the following conclusion: I am also satisfied that, on or about 11 August 2007, while at the 'Exchange Hotel', you approached Constable Matthew Hill, rubbed his left arm and said words to the effect, "I know you want me Hilly". I am satisfied also that a few days later, you exchanged text messages with Constable Hill. In these messages, Constable Hill mentioned to you that he thought your sister was attractive, to which you responded "You know you don't want her, you want me Hilly". When Constable Hill replied "I'm sorry but I fucking don't want you", you responded, "Yeah sure Hilly, I know you do". In the circumstances, I am satisfied that your conduct towards Constable Matthew Hill was contrary to the Sexual Harassment Policy. Further, or in the alternative, and noting that your conduct towards Constable Matthew Hill occurred after you had been reminded that you were not to make inappropriate comments or comments of a sexual nature to male officers, I am satisfied that your conduct was contrary to the Code of Conduct, which relevantly states: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty.. 4. An employee of the NSW Police must treat everyone with respect courtesy and fairness... 5. An employee of NSW Police must comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction. 131 The factual background to this allegation is contained in the following extract of Constable Matthew Hill's response to a directive memorandum served upon him by Inspector Joice on 24 October 2007: On Saturday 11 August 2007 I attended the Newcastle Race Course for a social race day which I had organised to celebrate my birthday. A number of police officers were in attendance as well as a number of police partners. P/Cst PARFREY attended with her stepsister. After the race day a number of us went to the Exchange Hotel in Beaumont Street Hamilton. Also present was my fiancée. My fiancée sat with a number of my work friends and their partners. Senior Constable WICKS and I went to play the poker machines in the poker machine room which is on the opposite side of the Hotel to where the others were sitting. Whilst playing the poker machine with Senior Constable WICKS, P/Cst PARFREY started rubbing my left arm saying "I know you want me Hilly". I said I was not interested. The comments continued and I was getting frustrated as it was annoying me when I was trying to play the poker machines so I turned to P/Cst PARFREY and said "Just fuck off, I am trying to play the pokies". P/Cst PARFREY started showing me text messages from her mother asking her when she would be home, she told me to reply so I did thinking that if I was rude then maybe she would leave me alone so I replied something along the lines of "I am trying to find a bloke". I thought this would make P/Cst PARFREY angry but it didn't, she laughed and stayed standing around Senior Constable WICKS and I. Eventually my fiancée came into the poker machine room after I texted her and told her what P/Cst PARFREY was doing. My fiancée sat with me while we played the poker machines. P/Cst PARFREY left and I did not have any more contact with her that night. I thought that this may have been a result of P/Cst PARFREY drinking too much throughout the day and night. On Monday 13 August 2007 I exchanged a number of text messages with P/Cst PARFREY. From my recollection I texted P/Cst PARFREY to see if she had enjoyed her first police social outing. During these text messages, P/Cst PARFREY stepsister came up in topic and I made mention that I thought her sister was attractive from what I remember. Within a number of text messages, P/Cst PARFREY started texting things such as "You know you don't want her, you want me Hilly". At first I ignored these comments. The texts continued so I nicely told her that I was not interested in her. It got to the point where one of my replies was "I'm sorry but I fucking don't want you". I remember P/Cst PARFREY replied but I cannot recall exactly what was said but it was words to the effect of "Yeah sure Hilly, I know you do". I spoke with Cst SLADE who is a good friend of mine, about the text messages and how I could get the message across without being mean. He told me just to not write back. I took this advice. After sometime without replying to P/Cst PARFREY text message, I received a text message saying words to the effect of "It's ok Hilly, I don't want you anyway, I go for good looking guys". Once again I did not reply to the text message. Sometime later in the night I received a text message from P/Cst PARFREY asking where I was, I replied and told her I was at work. She then proceeded to text me asking if she could speak with me about a job (Fatal on 9/8/07 which a number of team C member had attended). I did not feel comfortable talking to her about it so I spoke with Sgt BUGGY and advised him of the above and also that P/Cst PARFREY may need to speak with a peer support officer or EAPS. 132 As with earlier allegations, there are variations and inconsistencies in the Applicant's evidence which cause me some disquiet. In her Record of Interview, the Applicant said she did not recall rubbing anyone's arm. She neither admitted nor denied making the comments. In her Response to the Show Cause Notice, she said it was "conceivable" that such comments were made but would have been part of a light hearted banter in a context where Constable Hill was making suggestive comments about her stepsister. 133 In her affidavit the Applicant admits to making the comments but gives as a reason for doing so that Constable Hill was being unfair to his fiancée and in an attempt to divert him from commenting about her stepsister. 134 Constable Hill's evidence, whilst attended by a certain amount of ambiguity, was that discussion about the stepsister occurred after the applicant had made sexual advances towards him and was intended to divert the Applicant from further pursuing him. Certainly, there is evidence of such discussion in the form of transcribed text messages between Constable Hill and the Applicant the day following the Exchange Hotel gathering and I think on balance, that Constable Hill's consistent explanation as to his reasons for discussing the Applicant's stepsister in the way he did, gives his evidence a more general reliability than the Applicant's evidence which has a ring of ex post facto justification to it as I am disposed. No motive was put to Constable Hill to concoct his evidence as to the Applicant's sexual advances towards him and I accept his version of events in preference to the Applicant's version. 135 In saying that I do not accept as the applicant would have it, that Constable Hill's generic text the next morning to all who had attended the Exchange Hotel was in any way an invitation to the Applicant to engage in further inappropriate contact with him. 136 I am of the view that the Applicant's conduct towards Constable Hill insofar as it involved sexual advances towards him both at the Exchange Hotel and later by text message, was both uninvited and so plainly unwanted as to constitute sexual harassment and a breach of the NSW Police Force Code of Conduct and Ethics. Issue 4: Sexual harassment and/or inappropriate conduct concerning Senior Constable David Collier 137 In relation to this issue the Respondent's conclusion is as follows: I am satisfied that, while off duty on or around 27 September 2007, between around 5.00pm and 10.00pm, you attempted to call Senior Constable David Collier in 12 occasions, and that you sent six text messages to him. I am satisfied also that when you finally spoke to Senior Constable Collier, you asked him what he was wearing, and that you told him that you were "lying in bed in just underwear". Senior Constable Collier told you that he was married. You responded by saying that "all guys tell girls that", before asking if he really was married. I am satisfied also that you suggested that he could have an affair with you, and that you could help him study by you "taking an item of clothing off for each question" that he answered correctly. I note that at 9.12am on 28 September 2007, you sent a text message to Senior Constable Collier which stated: Congrats again on the interview.... sorry if I was inappropriate last night. I was a dick.... now you've got one up on me. Sorry. In the circumstances, I am satisfied that your conduct towards Senior Constable Collier was contrary to the Sexual Harassment Policy. Further, or in the alternative, and noting that your conduct towards Senior Constable David Collier occurred after you had been reminded that you were not to make inappropriate comments or comments of a sexual nature to male officers, I am satisfied that your conduct was contrary to the Code of Conduct, which relevantly provides: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty..

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An employee of NSW Police must comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction. 138 The factual background to this allegation is contained in the following extract from an email message sent by Senior Constable David Collier to a colleague on 28 September 2007. The message was eventually passed on to Inspector Joice and formed part of his investigation report which was finalised on 11 January 2008: Background Since Jess came to Waratah, she was advised by John Low (my old partner) from the Terrace, that if she needed any help etc, I'm a good bloke to talk to etc. Since then, apart from meeting her and the general quick chat at the station I've had two at length conversations with her, the first about a traffic matter and some general chat, one arvo, and the other earlier in the week, which was general about Lowy, me my business etc. It was during this time that I mentioned how I'm networking with a number of models and photographers on MySpace. She brought up her friend, a model, and later that night I added Gerbs, Boj, Jess and others as friends on MySpace for networking (that was Wednesday night). On Thursday the 27th (HWP night out), the text messages/calls happened as outlined below. I was trying not to be rude, and responded three times with my responses being in red. Text msgs 5.22pm (Totally added you :) your my top friend!) 7.52pm My response (Yee hah! Didn't know if you'd get it so soon, I'm such a techno non-nerd. I'm on a HWP night out, look out newie. Cheers) 8.24pm (Thanks for the invite) 8.29pm Missed call 8.30pm (Call me later, when your free...) 8.35pm Dismissed Call 8.36pm Dismissed Call 8.36pm (Fine, Ignore me!) reference to the two calls you say me dismiss 8.42pm My response (Good on ya! Sorry can't talk at the moment. Way noisy. Cheers. :) ) 9.05pm Missed Call 9.07pm Missed Call 9.08pm Missed Call 9.11pm Missed Call 9.12pm Missed Call 9.13pm (Dave msg me! I'm in town if you want a drink!) 9.16pm Missed Call 9.17pm (Oh where are you? I could come out for a minute!) 9.20pm Missed Call 9.21pm (Yeah, thanks a lot. You hang up was on way to catch up..) 9.25pm Missed Call 9.27pm Missed Call 9.48pm My Response (Hey, just left restaurant, sorry haven't heard phone all night. Heading home to do some study for negs interview tomorrow. Cheers) 9.48pm I answered phone, didn't look at number as I was about to drive, and Jess was on the other end. I talked for about 10 minutes during which time she repeatedly asked me to go out for a drink that night, suggesting that she'd drive into town to meet me. I told her I was going home a number of times and she persisted. She sounded like she'd had a few drinks (slurred speech) which concerned me as well, thinking that she was serious about driving. I then started heading home and couldn't get off the phone. I didn't want to be rude, but tried a number of times to get off the phone politely. It was during this conversation, I was asked, what I was wearing, she told me she was naked, later told me she was lying in bed in just underwear. She spoke about my MySpace site and brought up me mentioning that I'm happily married, before asking me if I was really was a number of times. She then suggested that I could have an affair with her, a couple of times, to which she was told that I was married. Later in the conversation, during which time I told her heaps of times that I was going home to study for the Negs interview, she suggested that she could come and help me study, by taking an item of clothing off for each question I got right. Further to this she told me that if I needed a hand to study over the coming weeks for my Sergeants interview, that basically she could do the same, even suggesting this Saturday. I was then able to end the call 28/09/07 9.12am Text Message (Congrats again on interview....Sorry if I was inappropriate last night. I was a dick...Now you've one up on me. Sorry). 139 When asked by Inspector Joice to explain these calls, text messages and conversations with Senior Constable Collier, the Applicant indicated that she was persistent because she was aware that Senior Constable Collier was out for drinks with colleagues and due to high levels of background noise, may not have heard his mobile phone ringing. This does not explain the content of the text messages to or the ultimate conversation with Senior Constable Collier that night and quite frankly, the Applicant's stated inability to recall (when asked by Inspector Joice) what she said to Senior Constable Collier and later her denial in that regard are at odds with her message of apology to him the next morning. I do not accept as credible, the Applicant's evidence as to why she proffered that apology. 140 Similarly and in complete contrast to Senior Collier's evidence about the nature of their relationship, the Applicant gave the following responses to Inspector Joice: Q56: How many times had you spoken with this officer at all before this night? A: We spoke regularly. Every time we see each other we would have long conversations. We have a mutual friend and we have always got along so we have always talked about everything. Q57: How long have you known this officer? A: Since I started work at Waratah - 6 months Q58: Have you ever spoke with this officer whilst he was off duty before that night? A: Um...yeah, he'd text me his number and said something about the weather was in HWP and that he'd wished I was there Q59: When did you get this message? A: Before that night - I don't remember the date Q60: How would you describe the relationship between yourself and this officer? A: We are very close. We talked about everything - from work to what was going on in our private lives. We talked about everything - we were quite close. 141 For his part, Senior Constable Collier said he agreed as a favour to a friend and colleague who was acquainted with the Applicant, to be available by way of peer support if the Applicant needed advice or guidance when she commenced at Waratah Command. He denied the close relationship between them as portrayed by the Applicant. He said he provided the applicant with his mobile phone number at her request after a conversation with her indicating she was having some issues at work and he described her uninvited conduct towards him, as a married man with a young child, as causing him to feel uncomfortable and embarrassed. 142 On the evidence as it stands, I have little hesitation in accepting Senior Constable Collier's account of what transpired. This is particularly so given among other things the absence of anything being put to him that he had invented his evidence or his motive for doing so and the fact that he reported the conduct the morning after it occurred. It follows that I do not accept the Applicant's denial and/or explanations in that regard. 143 I am satisfied that the Applicant's suggestive comments were plainly invitations to Senior Constable collier to engage in marital infidelity and were of an inappropriate sexual nature. Senior Constable Collier did not invite or encourage the comments and he was made to feel uncomfortable and embarrassed by them. I find therefore that the Applicant's conduct towards Senior Constable Collier breached the sexual harassment provisions of the Anti-Discrimination Act and the NSW Police Force Code of Conduct and Ethics. Issue 5: Inappropriate and unprofessional comment 144 In relation to this issue, the Respondent concluded as follows: I am satisfied that, while on duty with Constable Lyndal McOnie, a member of the public approached you and stated that he had just witnessed a van turn into a side street with its headlights off. It appears that you and Constable McOnie then identified an empty van that the person thought to be the driver appeared to be intoxicated at the time. Constable McOnie states that she considered requiring this man to undergo a roadside alcohol breath test. This man responded that you were not permitted to do so. Constable McOnie telephoned Sergeant Tull, who confirmed this to be the case. Constable McOnie stated that you told the man that he was to be arrested for refusing to provide a breath sample. Constable McOnie told you that you couldn't do that, because you had not witnessed the man driving the vehicle. I am satisfied that you later said to Constable McOnie words to the effect; "I would have run with it. I would just say that I saw him driving it around the corner". Constable McOnie responded in words to the effect: No, because if it ends up in court and I'm asked if we saw him driving the van, because that's what you stated, I'm put in a position of either having to drop you in it, or say that you lied or I have to lie to court which I'm not prepared to do. Either way it puts me in a bad position. In the circumstances, I am satisfied that your conduct was contrary to Code of Conduct, which relevantly provides: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty...

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An employee of NSW Police must comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction. 145 The factual background to this allegation is contained in the following extract from Constable McOnie's response to a directive memorandum served upon her by Inspector Joice on 24 October 2007: A. One night I was working with Jessica when we were stopped by a member of the public at Broadmeadow Rail Station. He asked if we were looking for a van, as he had just witnessed a van duck into a side street with its headlights off. Jessica and I drove into the street and saw a van parked on the side of the road with no one in it. I saw a man standing in front of a car yard on the corner about 100 metres away. I walked over to him and asked if it was his vehicle. He stated that it was and I asked him to return to it, which he did. I could smell that he had been drinking. When back at the van I asked Jess to get the alcoliser out of the police vehicle. The owner of the van said, "you can't breathalize me, I know my rights" (which is correct, as we had not witnessed him driving the van. I phoned Sgt Tull from the scene and asked if there was anything we could do, and Sgt Tull said no.) When I walked back to where the man was standing Jessica told him that he was going to be arrested for refusing to give a breath sample. I pulled Jessica aside and said that we couldn't do that, as we hadn't witnessed him driving the van. Later Jessica said, "I would have run with it, I'd just say that I saw him drive it around the corner". I said "No, because if it ends up in Court and I'm asked if we saw him driving the van because that's what you've stated, I'm put in the position of either having to drop you in it and say that you lied, or I have to lie in Court, which I'm not prepared to do. Either way it puts me a bad position". Later at the Station I was aware that Jessica had spoken to other officers about the matter, including HWY. The next shift Jessica approached me and told me that we should have arrested him. I said that if she wants to bat on with stuff like that in future that's fine, but not when she's working with me. I was annoyed that not only had she not listened to my advice, but she had asked other officers and then told me that I was wrong. This is what I mean by her not listening, and for this reason I would rather not work with Jessica. 146 The Applicant recalled the incident at Broadmeadow but denies that she used the words "I would have run with it, I'd just say I saw him drive it around the corner" and she denied the response alleged by Constable McOnie "No because if it ends up in Court...etc". The Applicant and Constable McOnie further differ as to whether it was a member of the public or a security guard who flagged them down that night and further yet about whether the Applicant asserted to Constable McOnie that the suspected van driver could be arrested and charged on the evidence of the security guard. Constable McOnie denies the Applicant said words to her to that effect. 147 The Applicant's evidence is also squarely challenged by Senior Constable Collier who denies giving advice to the Applicant, as the Applicant asserts, that she should have proceeded by way of a DUI offence that night. The advice actually given by Senior Constable Collier was that if the Applicant had a witness who could positively identify the driver, and if she was satisfied with that identification, then she could have proceeded with a breath test and PCA charge. 148 If one accepts the evidence of Constable McOnie and Senior Constable Collier, as I am inclined on balance to do, then there was considerable merit in the decision not to arrest the person that night and if the Applicant put forward the proposal attributed to her, as I am inclined to think she did, then it becomes a much more serious matter than a simple learner's error. It is to be noted here that no suggestion was made to Constable McOnie that she invented her evidence and there was nothing in her evidence or manner of giving it which cause me to doubt its accuracy and reliability. In fact, the opposite was put to Constable McOnie in cross-examination, that the Applicant had "floated" the idea and Constable McOnie had "disabused" her of the thought. 149 Even though the Applicant adhered to her version of events, the Applicant's submission appears to proceed on the premise that it does not really matter that she is not believed, the Applicant made a mistake and had been properly rebuked, her comment was simply part of the learning process. This submission in my view cannot be accepted. The issue here is not whether reasonable grounds existed to secure a conviction. Rather, the issue is that the Applicant stated that she would have been prepared to "fabricate" evidence to gain a conviction. That is not part of the learning process but involves something much more fundamental: the Applicant's honesty and integrity. It goes to the very heart of the values of the police officer to be candid, to follow due process and to uphold the rule of law. 150 Even assuming that the Applicant had simply made an error of judgment by thinking aloud about something she did not propose doing, the Applicant's submission that her conduct should be excused or ignored would only have merit if the Applicant had confessed to and expressed regret for making the comments. However, the Applicant did the opposite. She acknowledged that Constable McOnie's evidence was significantly different to her account but maintained that her version of events was still true. 151 The Applicant's conduct casts grave doubts about her suitability to be a police officer. Making statements indicating a preparedness to fabricate evidence to gain a conviction is not a trifling matter. It is an indicator of the Applicant's state of mind and likely future behaviour. The Respondent was entitled to be concerned about such comments. Issue 6: Inappropriate and Unprofessional Comment 152 In relation to this issue, the Respondent concluded as follows: I am satisfied that on or around 16 September 2007, while on patrol with Constable Matthew Bowman, and after being requested by a dispatcher at police radio VKG to look out for a well known offender, you said to Constable Matthew Bowman words to the effect: We'll find him, and I will get in his face and piss him off until he hits me and I will get my HOD [Hurt on Duty insurance claim] and you will get an easy lock up. I am also satisfied that, on occasion, you had a conversation with Constable Bowman in relation to officers attending the scenes of fatal motor vehicle collisions, during which you said to Constable Bowman words to the effect: I wanna go see that. Stuff like that will fuck up my head and I can write how it affected me for my HOD [Hurt On Duty insurance claim]. In the circumstances, I am satisfied that your conduct was contrary to the Code of Conduct, which relevantly provides: 1. An employee of the NSW Police must behave honestly and in a way that upholds values and the good reputation of the NSW Police whether on or off duty.. 153 The brief factual background to these allegations is set out in Constable Bowman's evidence primarily in the form of contemporaneous entries in his Police Academy notebook. He explained when asked, that he chose to make a precautionary written record of inappropriate conduct on the Applicant's part (which he directly observed) because he had heard concerns expressed by other officers about the Applicant's alleged unprofessional conduct. 154 During her recorded interview with Inspector Joice, the Applicant said she had no recollection of the first event. Later in her response to the Show Cause Notice, she recalled the incident but denied the words attributed to her by Constable Bowman. She further denied the words attributed to her in relation to fatal accidents. In cross-examination, the Applicant asserted for the first time that Constable Bowman was reluctant to look for the well-known offender "because it would lead to an arrest and it was paperwork that he didn't need and he would much rather just go to a different area so we didn't find him". She also asserted that the person was wanted for breaching bail curfew. 155 Constable Bowman recalled, contrary to the Applicant's evidence, that the VKG message in relation to the person was simply to keep a look out for him as he had been seen in the vicinity; that he was not a wanted person and that there was no operational imperative to search for him as the Applicant urged. 156 Constable Bowman's credit was not challenged and it was not put to him that the contemporaneous notes he made were in any way a false or inaccurate record of events. To the extent that Constable Bowman's version of events is at odds with the Applicant's version, I prefer the former to the exclusion of the latter. I am satisfied that the Applicant did make the comments attributed to her and I do not accept, as submitted, that her comments were nothing more than manifestations of immaturity or passing statements of bravado. To the contrary, they are yet another adverse reflection on her professionalism and her likely behaviour in the future which the Respondent was entitled to take into account in determining her suitability as a police officer. Issue 7: Exclusion from the Associate Degree in Policing Practice 157 In relation to this issue, the Respondent made the following observations in the dismissal order: In or around September 2007, you failed subject PPP231 (Police Practicum) in the Associate Degree in Policing Practice (ADPP) at Charles Sturt University. As a result, you were placed on a Probationary Constable Performance Development Plan for a period of 12 weeks. That plan included the following acknowledgment by you: I also acknowledge that failure to meet the required assessment standards could result in further action being taken, including dismissal. Notwithstanding this, on 26 October 2007, it became apparent that submission of your Duty Book for review already was overdue. In or around December 2007, the Duty Book component of PPP231 was assessed by your Education Development Officer as unsatisfactory. The result was that you failed the subject PPP231 (Police Practicum) a second time On or around 17 January 2008, you were informed by a representative of the School of Policing Studies, Charles Sturt University, that you were excluded from the ADPP for a period of two years from 15 January 2008. 158 The Respondent acknowledges later in the order that the Applicant's exclusion from the ADPP was reversed on appeal and in expressly indicating that the exclusion is not determinative of the decision to dismiss, the Respondent describes it as a matter necessary to consider in reaching a conclusion as to the Applicant's suitability for continuing employment as a police officer. 159 I agree with the Respondent in such circumstances, that the issue has been given far too much prominence by the Applicant in the approach taken to and the attack launched upon the role played by Sergeant Heather Campbell. 160 Sergeant Campbell was at all material times the Education and Development Officer for the Newcastle City Local Area Command and in that role, she supervised and co-ordinated the education, training and assessment of probationary constables within the Command. In the nine or ten years she carried out that role she had assessed, counselled and supervised in excess of one hundred probationers. It was her function to provide advice, guidance and support by various means to address identified shortcomings and on the evidence as it stands, that is precisely what she did in the Applicant's case albeit without success. Her role was not of a disciplinary character but was of necessity informed by knowledge which came to her about the Applicant's performance in the field. 161 It was in this context that Sergeant Campbell engaged with the Applicant well before any disciplinary investigation commenced in an attempt to ensure that the Applicant understood that concerns had been raised and to provide her with feedback about the appropriate protocols and standards of behaviour expected of her. 162 There is no basis in the evidence, as I am disposed, for the Applicant's submission that Sergeant Campbell was biased against her, or produced misleading material upon which the Respondent acted or that she had a desire to see the Applicant fail but it must be readily acknowledged that some of the objective assessments and judgment calls made by Sergeant Campbell were both adverse to the Applicant as well as displeasing to her. Simply put, Sergeant Campbell did her job as Education and Development Officer. 163 In any event, the Respondent did not rely upon Sergeant Campbell's report and its reasons for dismissing the Applicant were bound up in the findings of misconduct set out in Inspector Joice's investigation report. Sergeant Campbell's involvement in performance managing the Applicant did not taint the investigative process and to elevate Sergeant Campbell's involvement to any higher level would be to give it more weight than the Respondent did in deciding to dismiss the Applicant. 164 The following passage from the "Conclusions" section of the order speaks for itself in that regard: In all the circumstances described in this Order, I have decided that, especially given your status as a probationer, the alarming attitude you took towards colleagues and your conduct towards and lack of respect for them, even after being directed to change your attitudes, display an absence of the standards of integrity expected of a police officer. Your conduct convinces me of your unsuitability to be confirmed as a constable of police. On this basis alone , I consider that dismissal would be appropriate. The other issues in this Order reinforce my decision. (emphasis added) 165 Similarly, I am not persuaded as the Applicant submits that Inspector Joice's investigator's report is flawed by a lack of independence or the inclusion of hearsay material. There is no proper basis for this proposition given the thorough and transparent nature of the investigation. To suggest, as the Applicant does, that Inspector Joice and Sergeant Campbell used the investigation to justify or confirm the concluded views they had already formed about the Applicant, is without foundation in the evidence or any inference to be reasonably drawn from it. It is more the case, as I am disposed, that the investigator's statutory power to direct responses from individual police facilitated the provision of factual information in a form which permitted its use in dealing with the Applicant's misconduct. Plainly on the evidence of a number of the witnesses, that information may not otherwise have been forthcoming in a way which enabled the Respondent to act upon it notwithstanding that the Applicant's conduct was to put it neutrally, well known within the Command. 166 As to the proposition for which the Applicant contends namely, that the Commission would not be satisfied that the conduct which occurred out of working hours bears the necessary link to the employment, it seems to me that the contrary is overwhelmingly the case. 167 The principles that generally apply where conduct is outside the workplace were enunciated in Rose v Telstra Corporation Limited [1998] IRCommA 1592 and commented upon by the Full Bench in NSW Attorney General's Department v Miller [2007] NSWIRComm 33 at paragraph 52, where it was said: It is clear that in certain circumstances an employee's employment may be readily terminated because of out of hours conduct but such circumstances are limited. · The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee: or

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· The conduct damages the employer's interests; or · The conduct is incompatible with the employee's duties as an employee. In essence the conduct complained of must be of such gravity or importance as to indicate an objection or repudiation of the employment contract by the employee. 168 In my opinion, each of those tests have been comfortably met on the evidence in this matter and moreover, as the Respondent correctly submits, the obligation on the Applicant to comply with the NSW Police Code of Conduct whilst off-duty finds statutory expression in the Police Regulation 2008 in the following terms: 9 Responsibilities of off-duty police officers (1) A police officer who is off-duty (whether rostered off-duty, on annual leave, suspended or otherwise absent); (a) is subject to the provisions of this Regulation and the Police Code of Conduct, and (b) will be held responsible for any misconduct by the officer while off-duty, and (c) unless on sick leave, may be recalled to duty as if the officer were on duty. 169 In coming to the ultimate question whether the Applicant's dismissal was harsh, unreasonable or unjust in the light of the totality of facts found, I respectfully adopt the following observations of Boland J President in Alexander v Commissioner of Police [2009] NSWIRComm 3 at [45]-[47]: The Force's credibility in the community as a body charged with the maintenance of law and order depends upon the community knowing that police officers are persons of integrity; that they will be honest and truthful in their dealings with each other and with the public. The need to maintain a high standard of integrity is a powerful consideration in favour of dismissal where a probationary constable fails to meet the standard. Further, as Walton J, Vice President observed in Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [249]: The power of the Commission to order the reinstatement of an employee should always be exercised with caution (see Slonim v Fellows (1984) 154 CLR 505 at 515), particularly where the case involves a public position such as that of a police officer. 47 The Commissioner of Police is entitled to expect that a probationary constable, who is, after all, 'on trial' as to his or her suitability, will observe the Police Code of Conduct and Ethics and the values of the Police Force and, if the constable does not, to give serious consideration to whether the necessary degree of trust and confidence has been so undermined as to justify separation 170 In this matter, I have taken the view after careful consideration, that the proven misconduct of the Applicant is such as to render the Respondent's decision immune from intervention by this Commission and I dismiss the application accordingly.

Jessica Parfrey v Commissioner of Police

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Judgment (36 paragraphs)

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