Little v Commissioner of Police

APPLELLANT Mr E Wasilenia of counsel Solicitor: Mr K Rodgers Brock Partners Solicitors

RESPONDENT LEGAL REPRESENTATIVES: Mr J J Graves SC and Mr J H Pearce of counsel Solicitor: Mr M North Holmes Solicitor Court &Legal Services NSW Police Service

JUDGMENT: - 51 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: Wright J, President Walton J, Vice-President Boland J Monday 29 April 2002

GEOFFREY BERNARD WILLIAM LITTLE v THE COMMISSIONER OF POLICE Application for Leave to Appeal and Appeal against a Decision of Justice Peterson given on 8 March 2001 in Matter No IRC 256 of 2000

DECISION OF THE COMMISSION [2002] NSWIRComm 52

1 This matter concerns an application for leave to appeal and, subject to leave being granted, an appeal from a decision of Peterson J given on 8 March 2001 in Little v Commissioner of Police [2001] NSWIRComm 9. The proceedings at first instance concerned an application for review brought pursuant to s181E of the Police Service Act 1990 of an order made by the Commissioner of Police under s181D of that Act removing Geoffrey Bernard William Little from the New South Wales Police Service. In the decision given on 8 March 2001, his Honour concluded that the removal of the appellant was not harsh, unreasonable or unjust and dismissed the application.

Relevant Statutory Provisions 2 The relevant provisions of the Police Service Act for this matter are sections 181D to 181G respectively. Those provisions are in the following terms: 181D. Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the Police Service if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the Police Service. (5) The removal takes effect when the order is made. (6) (Repealed) (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the Police Service under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the Police Service. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 181E. Review generally (1) A police officer who is removed from the Police Service by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F. Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the Police Service, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the Police Service is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to section 181D (1)). 181G. Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision.

3 It should be observed here that s181G provides that the provisions of the Industrial Relations Act 1996 shall operate with respect to an application for review "in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act" subject to a number of modifications.

4 The provisions of that Part of the Industrial Relations Act are relevantly as follows: 83. Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or (b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). (1A) This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if: (a) the person is entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or (b) the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Workplace Relations Act 1996 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)). (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task, (b) employees serving a period of probation or qualifying period, (c) employees engaged on a casual basis for a short period, (d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances, (e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of: (i) their particular conditions of employment, or (ii) the size or nature of the undertakings in which they are employed. (3) This Part does not apply to the dismissal of any such employee who is an apprentice or trainee (within the meaning of the Industrial and Commercial Training Act 1989) or any such employee who is an executive officer to whom Part 2A of the Public Sector Management Act 1988 or Part 5 of the Police Service Act 1990 applies. (4) This Part applies to the dismissal of an employee even though it occurred in the course of an industrial dispute and the Commission is otherwise authorised under this Act to order the reinstatement of the employee. (5) In this Part: "dismissal" includes: (a) the threat of dismissal, and (b) in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee. "Federal award" means an award within the meaning of the Workplace Relations Act 1996 of the Commonwealth. "industrial instrument" includes a Federal award or other Federal industrial instrument. 84. Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. (2) An application may be made on behalf of the employee by an industrial organisation of employees. (3) An industrial organisation may make one application on behalf of a number of employees who were dismissed at the same time or for related reasons. However, this subsection does not prevent the Commission from hearing a number of applications under this Part together or individually. (4) An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable. 85. Time for making applications (1) An application under this Part must be made not later than 21 days after the dismissal of the employee. (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 86. Conciliation of applications The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation. 87. Arbitration where conciliation unsuccessful (1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act. (2) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order. 88. Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 89. Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines. 90. Effect of availability of other remedies The Commission must not determine an applicant's claim by making an order under section 89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument.

5 The application for leave to appeal and appeal sought to challenge "the whole of the decision" of Peterson J. It identified the following questions as being raised on appeal:

1. What is the test for determining when a dismissal was harsh, unreasonable or unjust for [t]he purposes of s181E of the Police Service Act. 2. Whether the meaning of harsh, unreasonable and unjust has less significance for the purposes of s181E of the Police Service Act. 3. Whether there are competing public interest considerations between procedural fairness and the decision of the Respondent to dismiss the Applicant. 4. Whether an Applicant for Review pursuant to s181E of the Police Service Act is to be denied procedural fairness.

6 The grounds of the appeal (which were relied upon for both the application for leave to appeal and the appeal proper) were:

The Commission erred and misdirected itself in holding that the nature of penalty has less significance in the context of a Review pursuant to s181E of the Police Service Act. 2. The Commission erred that in holding that a finding of harsh, unreasonable and unjust dismissal would defeat the object of the statutory provisions of section 181D, E and F of the Police Service Act. 3. The Commission erred in finding that it had no jurisdiction to receive an undertaking in proceedings pursuant to s181E of the Police Service Act. 4. The Commission failed to properly or adequately consider the interests of the Applicant pursuant to s181F of the Police Service Act. 5. The Commission erred in finding competing public considerations as described in paragraph (16) of Mr Justice Peterson's reasons. 6. The Commission erred in finding that procedural fairness was not material to the concept of a harsh, unreasonable and unjust dismissal. 7. The Commission erred in its evidentiary findings 8. The proceedings were an abuse of process.

7 The relief sought in the application was that the first instance decision be set aside and that the applicant be reinstated to the Police Service or, alternatively, that the matter be remitted to another member for determination according to law.

Background 8 On 13 October 1999, the Commissioner signed a notice, pursuant to s181D(3)(a) of the Police Service Act ("the Notice"), which was served on the applicant on 20 October 1999. That Notice was in the following terms: The Commissioner's Confidence provisions allow for the Commissioner of Police to remove an officer where he has lost confidence in their suitability to remain a Police officer. This is determined by the Commissioner on the basis of one or more of the following criteria: conduct, integrity, performance or competence. In accordance with Section 181D(3)(a) of the Police Service Act 1990, I hereby give you notice that I do not have confidence in your suitability to continue as a police officer taking into account the criteria of your integrity, conduct, performance and competence and on the following grounds: 1. On 18 February 1992, whilst off duty, you revisited the home of a woman you had seen during your shift that day. You then accompanied this woman to a hospital where you professed your views on the woman's condition. Your conduct in this matter was found to be inappropriate and you were counselled accordingly.

On 1 June 1993, you were found to be negligent in your duty, in that you failed to maintain strict vigilance whilst escorting a prisoner.

In June 1994, a meeting was held during which 4 female work colleagues complained that sexual and suggestive comments were made by you towards them. As a result you received counselling from the EEO branch.

On 24 June 1994, a meeting was held in relation to concerns raised at North Sydney Police Station regarding your competence as a supervisor. These concerns resulted in a complaint being initiated and as a result you were removed from your duties as a shift supervisor.

In September 1994, you disobeyed a direction not to have any form of conduct with four female officers as a result of an internal investigation. You were departmentally charged with disobedience however this was withdrawn due to new management practices that have been adopted by the Service.

Between the 20 October 1995 and 24 November 1995, whilst working at the Mosman Patrol on supervisory duties, five incidents were identified by your work colleagues as being of concern with regard to your approach to officer safety and your lack of knowledge or disregard for police procedure. 7. In March 1995 you breached the copyright of the Police Service Weekly be reproducing and then circulating an article originally published in the Police Service Weekly. On 12 October 1995 you intentionally promoted yourself through the "Smiling Policeman" character in an article published in the Mosman Daily. These acts were contrary to a Directive Memorandum from the North Region Commander, dated 27 September 1994 and acknowledged in writing.

8. You failed to obtain the approval of the Patrol Commander, Dee Why prior to being interviewed for an article which appeared in the Sunday Telegraph on 17 March 1996 contrary to the Directive Memorandum given by the Acting Commander, Dee Why which you had acknowledged in writing.

9. On 17 May 1996, you made a press release concerning a visit to 1996 Convention of the International Police/Law Enforcement Fellowship of Rotarians which included your photograph in uniform. This article appeared in the Northern Beaches Weekender on 17 May 1996. This action was in contravention of a direction given to you by Acting Patrol Commander.

10. On 11 September 1996, you attended a meeting of the Kuring-gai, Evening V.I.E.W. Club at the Killara Golf Club where you narrated your role as the smiling policeman and distributed promotional literature. This action was a contravention of a direction given by the Acting patrol Commander Dee Why that you were not to address any community organisation in you (sic) capacity as a member of the New South Wales Police Service without the written consent of the Patrol Commander.

11. In August 1998, you engaged in conversation on two occasions with a female officer at Harbourside Local Area Command which caused her discomfort. Your actions on these occasions were contrary to Superintendent Jacobsen's direction that you were not to engage in any conversation with female officers which could be misconstrued. 12. Between 7 November 1996 and 27 September 1998, you made four unlawful computer accesses relating to Ms Elizabeth T. . . . nee C . . . . in the New South Wales Police Service Computer System.

13. On 27 November 1998, you were untruthful to Superintendent JACOBSEN when you stated to him that you did not hand a 'Smiling Policeman' card to a member of the public. 14. On 8 December 1998, you were untruthful to Inspector WOOLCOTT when you stated during a Record of Interview that you did not recall whether you made any previous accesses to Ms Elizabeth T ... nee C …prior to the 27/9/98. You are hereby notified that I am considering making an order for your removal from the New South Wales Police Service under Section 181D of the Police Service Act 1990. In accordance with section 181D(3)(b) of the Police Service Act, 1990, prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so. Attached is a copy of your Service history and the facts relating to the matter. Your submission should be delivered to my Office, Level 18, Police Headquarters, 14-24 College Street, Darlinghurst 2010.

9 The applicant provided an extensive written reply of some 24 pages to the Notice either denying the allegations or providing justification for his conduct.

10 The Commissioner signed the order removing the appellant from the Service on 14 December 1999. The order was in the following terms: I, Peter James Ryan, Commissioner of Police, having considered your integrity, conduct, performance and competence, do not have confidence in your suitability to continue as a police officer. By this Order, remove you from the New South Wales Police Service. In reaching my decision, I have taken into account a submission prepared in relation to you, the Notice served upon you pursuant to section 181D(3)(a) of the Police Service Act and the written submissions furnished by you through your solicitors. I have carefully considered the matters raised by you in response to the grounds particularised in the Notice.

The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'. Your removal takes effect from the date of this Order.

11 The Statement of Reasons, referred to in the order, was in these terms: There are fourteen grounds set out in my notice to you under s181D(3)(a) of the Police Service Act, 1990. These grounds relate to your conduct and behaviour over the past seven years. I have considered the following matters and taken them into account in reaching my determination. I have grouped the issues as they appear in the Notice, submission and your written submissions into general categories and I will deal with each category separately. Issue A - Improper Conduct. This matter arose as a result of a written complaint by a doctor at Royal North Shore Hospital following your accompanying a female patient to the hospital after visiting her home, when you had completed your rostered duty. I have read your explanation of this incident, however I do not accept your conduct as appropriate. You placed yourself in a compromising position, becoming involved in a domestic situation off duty, which an officer of your experience should have been aware, was inappropriate. This resulted in you being counselled by your District Commander concerning the prudence and commonsense of your actions. I have not given this particular aspect a great deal of weight in my determination, however, it tends to discloses (sic) a lack of judgment on your part.

Issues B, D and F. Neglect/Incompetence. The escape of a prisoner whilst under your direct supervision. I have noted your comments in your written submission in which you assert that the design, construction and maintenance of the cell complex was the primary cause for this person escaping. I do not concur with your suggestion. It would appear to me that your failure to exercise due care and diligence was the primary cause for this person's escape. This resulted in you being admonished and directed to attend an in service course in respect to the responsibility of having custody of prisoners. However, I have given only limited weight to this aspect in making my decision.

Your lack of competence as a supervisor and lack of ability to properly relate to staff, which led to the an affect (sic) on morale. Your assertions in your written submissions are in conflict with those provided by a number of supervisors at the then North Sydney Police Station. Your explanation fails to convince me that you have the aptitude and necessary skills to carry out the role of a supervisor. Your commander at that time caused you to be removed from supervisory duties and this tends to affirm the doubts I have identified concerning your suitability.

There are further issues in relation to your competence, which causes me concern. You were loaned to Mosman Patrol and again placed on supervisory duties. This resulted in five separate issues, where it is claimed that your actions completely abrogated your role as a supervisor by placing either yourself or other junior officers working with you in jeopardy. Your procedures were outside accepted Service practice and guidelines. I have noted your explanations in your written submissions and I reject those. The complaints about your conduct and the manner in which you carried out your duties come from various officers. You suggest they are all wrong and you are right. However, the matter was referred to the Service Solicitor who conducted an independent review of these matters, which led to a recommendation that you be considered for action pursuant to s181D. A recommendation of this nature supports the claims made about your lack of suitability and as mentioned, these matters weigh heavily upon my decision.

Issues C and K. Sexual Harassment. There is material before me that suggests your dealings with female officers are completely inappropriate. The claims range from innuendo to outright sexual harassment and involve a number of different officers over an extended period of time. This has caused embarrassment and discomfort to these female officers. You have provided comments in your written submissions that deny or discount these claims of sexual harassment. I do not accept your denials. The material arrayed against you by various officers, supports these contentions, particularly when the EEO Branch, which is external to your command, raises concerns as does your commander about your conduct. I have placed reasonable weight on this aspect in making my determination.

Issue E. Disobedience in respect to the previous issue of Sexual Harassment. An additional factor is that you were directed not to have contact with the female officers involved in the sexual harassment claim. You assert in your written submissions that this further contact was inadvertent However, I do not accept that assertion. I note that disciplinary action be taken against you. This harassment issue causes me concern.

Issues G, H, I and J. Disobedience to directions. There is material before me that suggests you refuse to obey clear directions from your superiors concerning your involvement in the 'Smiling Policeman'. This was not on one occasion but continued over a number of years. You have attempted to explain the reasons for your involvement in this matter. I do not accept that your reasons explain your continued disobedience to clear directions that you not be involved. It displays, in my view, a complete disregard for discipline and the authority of your various commanders over a period of time. I have given this aspect a reasonable amount of weight in making my determination.

Issue L. Unlawful Computer Access. There is material before me that suggests you unlawfully accessed the police computer system on a number of occasions in respect of Ms C, who was known to you. You have denied this allegation. I reject your denials on the basis that an investigation was conducted and audits made of your computer access which revealed these accesses. I reject your claim that you had lawful reason to conduct those accesses. I find this aspect disturbing, particularly your lack of acceptance that you acted inappropriately.

Issues M and N. Untruthfulness. There is material before me that discloses that you were untruthful, firstly to your commander who challenged you about handing over a smiling policeman card to a person at the police station counter. Secondly, in relation to your answers to questions asked during an interview in respect to your computer access. You have denied these claims of untruthfulness and discounted them as a lack of recollection. I do not accept your denials on the basis, that after initially denying the allegation, shortly after admitted what you had done. Also, having accessed Ms C's details on six occasions is something that a person would tend to remember, therefore I believe the answer provided in your interview was untrue on that basis.

I note in your written response that you claim you have not been afforded a fair opportunity to respond to the grounds in my Notice. I do not agree, as legislation provides a period of at least 21 days to respond and I have allowed you 46 days to provide your written submissions.

Having considered the material contained in your written submissions, I believe you have failed to negate the issues raised in the grounds and I do not accept them as a valid rebuttal of the issues raised in respect of you. I have formed the view, based on weighing up the material provided to me, in contrast to your denials, that you have, over an extended period displayed a lack of competence to carry out the duties of a senior police officer. You have shown an inappropriate attitude and demeanour towards female officers, shown a continued disregard to the orders of your superiors and abrogated your responsibilities as a police officer. For these reasons I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service.

12 Having set out the legislative provisions and the factual matters referred to above (although his Honour did not set out or refer to s181G in the decision), Peterson J noted that the Notice was "served some 10 months following the last incident alleged" against the appellant. His Honour then turned to deal with the complaint made by the appellant in this regard, and stated (at [8] - [9]): 8 I turn first to the aspect of the applicant's case which criticises the approach of the Commissioner in relying upon an accumulation of events over a long period of years as justifying the formation of his relevant lack of confidence. It seems to me that to expunge the applicant's history in the context of a case such as this is quite impossible. It may be, in an appropriate case, that a reference to history is uninstructive. However, where over the years it is seen that there has arisen a continual series of events, each of which may have required and received appropriate attention at the time, there may be a culmination of that history in events which cause a re-examination of it as a whole. Even though each incident might, arguably, not warrant dismissal, there may remain room for the formation of a view that the person has demonstrated repeatedly failings which cause, and justify, a loss of confidence. This may be the more so where the nature of the incidents is similar. 9 Nevertheless, certain issues were not relied upon, I think correctly, by the Commissioner as contributing much weight to the reasons for dismissal. I do not intend to gainsay that view. The matters of substance which arise justify an examination of them in isolation. If they support dismissal the other matters are not required as additional matter justifying dismissal; if they do not, the other matters will not achieve the result sought by the Commissioner.

13 His Honour noted that the recent events relating to the alleged improper use of the "COPS" computer system had essentially given rise to the reassessment of the appellant's position within the Police Service. His Honour considered the allegations against the appellant to be "matters of substance" and that they were "not trivial issues for all of which the applicant had an acceptable explanation". 14 Before dealing with the specific allegations made against the appellant, his Honour set out some matters of a more general nature concerning the operation of the Police Service Act in the following terms, which statements of law and principle gave rise to the primary grounds of complaint by the appellant: 11 Before dealing with the particulars of these events, it is necessary to consider, in general terms, the nature of the problems advanced and their juxtaposition with the relief available should the applicant succeed. The problems raised against the applicant relate to his conduct, his relationships with female police officers, his supervisory abilities and insofar as the evidence given in the case is concerned, his honesty. The evidence on the matter of supervision satisfies me that the applicant had serious and repeated difficulties with the supervision of staff under him such that I would not order his reinstatement into a supervisory position, were there any other course available, without appropriate remediation. Counsel for the applicant and the Police Commissioner agreed that the power to order reinstatement in these proceedings would not include the power to order reinstatement in a position below that occupied at the time of dismissal. That is to say, if the Commission were persuaded that reinstatement were necessary but that it were preferable to a rank without supervisory responsibilities, such an order would not be available as a matter of jurisdiction. It follows that were the applicant successful in the proceedings but found seriously wanting in respect to supervision, the only remedy involving reinstatement would be to order reinstatement to his former position leaving the Police Commissioner to take such steps as he might be advised with respect to, in effect, demotion. 12 The consequences for the applicant of dismissal from the Police Service are considerable indeed. His age of 53 years obviously affects his future prospects of finding suitable work. Apart from any difficulties in that regard, however, there would be experienced a substantial reduction in the superannuation benefit which would otherwise operate should he be able to remain in the Service until age 60. He would then receive either a fortnightly pension of $1,606.40 or lump sum benefits totalling over $484,000. However, as a dismissed officer the entitlement is $103,000, a portion of which must be preserved until age 55. 13 In the ordinary course of reinstatement matters a penalty of that kind seems to me to be a most material fact in determining whether a dismissal was harsh, unreasonable or unjust (s.84 of the Industrial Relations Act 1996). However, while the same test applies under s.181E of the PS Act, such considerations seem to have less significance in the context of a statutory regime which confers upon the Police Commissioner a power to terminate the services of an officer in whom he has lost confidence . If the loss of confidence is justified, the penalty is the loss of employment with such consequences as that might visit upon the officer, variable as it may be depending upon the length of service. On the other hand, if the loss of confidence cannot be justified, the employment of the officer must be maintained. Leaving aside the matter of supervision referred to in par. 11 hereof, there does not seem to be room for a middle view that the Commissioner was justified in forming the loss of confidence in suitability to continue as a police officer but that dismissal would be harsh, unreasonable or unjust, meaning that the person be restored to the Police Service. Such a result would seemingly defeat the clear object of the statutory scheme. 14 Another matter of importance to mention in the context of relief is an undertaking offered by the applicant to resign (or retire) upon his attaining 55 years of age; this would ensure the reduction in his entitlement to superannuation would be substantially lessened. The Commissioner's submission, which I consider partly correct, is that under the statutory scheme I have no jurisdiction to receive the undertaking. I take that view because of the particular purpose of the proceedings, which is to review the Commissioner's order. In such a review it seems to me there may be 'jurisdiction' to receive such an undertaking but only where the Commission has otherwise determined to find in the favour of the applicant. 15 Section 181F(3) appears to take into account this difference with the Commissioner's confidence provisions by requiring the Commission to have regard to: (a) The interest of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the Police Service, and the fact that the Commissioner made the order pursuant to s.181D(1). 16 There are in my view at least two obvious competing public interest considerations arising in a case such as this. They are:

(1) To ensure both that police officers are not denied natural justice and that any dismissal was justified. There is a public interest in ensuring that police officers, whose role is vital to the maintenance of a peaceful and stable community, are not lightly found wanting and cast aside. (2) That persons whose conduct warrants exclusion from the Police Service are not retained after the Police Commissioner has exercised his statutory right to dismiss. Where the substance of allegations made is satisfied, it is unnecessary to resort to any examination of process and it may be that some procedural failure cannot suffice to justify any interference with the ultimate sanction.

15 His Honour then considered the evidence given on each of the 'issues' set out in the 'Statement of Reasons' accompanying the order removing the appellant from the Service.

16 As to the evidence, his Honour generally preferred the evidence brought by the respondent to that of the appellant in relation to each of the allegations made. His Honour found "much of the applicant's evidence to be internally inconsistent, less plausible and, on critical issues, unconvincing".

17 Turning to the specific allegations, his Honour dealt with each in turn. In relation to the alleged improper access to the COPS system, his Honour found, as to each alleged occasion, the applicant had made the alleged access to the system and in doing so had been acting improperly. His Honour then considered the position of the appellant, having found the allegations made out (at [24]): The nature of the breaches involved here was raised and it was submitted that they were to be considered in the scheme of the penalties able to be imposed for them, which are relatively insignificant. True that may be, they nevertheless raise questions going to the integrity of the officer involved, in the sense that they concern the willingness of the officer to adhere to his employment undertakings and not permit his personal interests to hold sway over his professional obligations. I can see no reason why the Commissioner would not be entitled to weigh these matters in considering the suitability of the applicant to remain in the Service. Should they raise doubts in that respect, in my opinion it would be silly to be required to ignore them for the reason they may have carried a different penalty in other circumstances or, indeed that they were deferred for consideration in this very context. 18 Turning to the alleged failures in relation to the appellant's capacity to supervise, his Honour noted that, in his view, the appellant's supervisory difficulties were "legion". His Honour referred to incidents at the North Sydney Station and the evidence of some of the officers with which the appellant had dealings whilst stationed at North Sydney in this way (at [28]): I have to say that the observation by Sergeant Eyre that the applicant does not seem to accept criticism was made out in the course of the applicant's evidence. It is of course not unreasonable for a person accused of particular behaviour to make a defence to the claims. Here though, the impression I gained from the giving of the evidence was that the applicant regarded himself as in step and his critics as out of step on every issue raised. There was only limited indication of any willingness to accept his errors and to move forward from that position; there was also a persistence in arguing the case, sometimes somewhat vociferously, from the witness box. That itself may not be so problematical, were it not for the fact that on so many matters I find the applicant at fault.

19 In relation to the events alleged whilst the appellant was stationed at the Mosman Station, his Honour had earlier stated (at [25]): For my part, the evidence did not disclose any solid reason for concern about the applicant's methods, save perhaps for the Zoo case; but even that is merely a disagreement about a professional question. However, the incidents do reveal a major problem of supervision which, even in the context of a disciplined service, reflects an authoritarian rule so strict as to cause a form of rejection of the applicant by the staff, with a concomitant reduction, if not elimination, of the ability to supervise and control.

20 Peterson J then came to deal with the various allegations of inappropriate interactions and attitudes towards female staff. In relation to these allegations, his Honour noted "[c]onsistently with his approach in the evidence generally, I found his evidence in respect of these matters quite troubling".

21 The evidence before his Honour was that these allegations had been raised with the appellant at a training day held in North Sydney in June 1994. His Honour noted that whilst there had been a number of complaints raised at that time, a number of which "were trivial", the Senior Constable chairing the meeting considered these allegations "had the potential to affect the efficient operation of the Station" and, as such, issued a report. This report led to a directive memorandum being issued by Detective Inspector Smith calling for details of the complaints.

22 Although it is not necessary to set out the evidence at first instance in detail, it is appropriate to refer to the way in which his Honour dealt with the allegations in his judgment. The first of those related to an alleged incident in 1986. His Honour referred to it in this way: This matter was very old and the actual words used by the applicant to the other male officer are not in evidence. Regrettably however, it was the first in what seems to have been a continuum of incidents which upset female police officers.

23 There was a series of allegations made by three female constables the appellant had worked with. Having received the detail of these allegations the Detective Inspector called for a response from the appellant. The response furnished by the appellant contained what was, in essence, either a denial that the event happened or an admission as to the incident accompanied by innocent explanation for the alleged events. These matters were canvassed in cross-examination of the appellant. His Honour dealt with these allegations in this way (at [43]): Having heard the police officers involved give their evidence of the offence to them caused by the applicant and taking into account his contemporaneous response and his evidence in these proceedings, I can only conclude that the applicant has either no capacity or no willingness to understand the difficulty which his behaviour was causing with female staff.

24 Following the receipt of the appellant's response to the allegations, the Detective Inspector interviewed the appellant. This resulted in a directive being issued to the appellant that he was not to "have any form of contact whatsoever with any of the four female police officers".

25 The evidence before his Honour disclosed a discussion shortly thereafter between the appellant and one of the complainants, Constable Watt. The conversation allegedly occurred at North Sydney Police Station when the appellant attended upon the station to collect his police appointments upon his return from leave. Whilst the appellant conceded that a conversation had taken place, the evidence before his Honour as to the circumstances in which the conversation took place and the content of the conversation differed markedly.

26 His Honour dealt with that evidence in the following terms (at [47] - [50]): I mention that the applicant was departmentally charged about this incident but the charge was withdrawn on the date it was to be heard by the Police Tribunal. The applicant had denied the charge at the time. It appears that internal advice was received by the Police Service that it was a matter which might be better managed under "the Employee Management Scheme". No further action was taken until the matter was raised in the context of the s.181D notice, some five years after the event. In the normal course one would be inclined to think that this issue was spent and that the behaviour of the Police Service in that regard could be treated as causing the incident to be de minimus, if not condoned.

However that issue relates directly to the underlying incidents the subject of complaint from the female police officers. Those incidents and the evidence surrounding them illustrate a pattern of behaviour which seems to me to have been well established. It involved often the repeated use of language which is capable of having a double meaning. I have no doubt that on each such occasion, its use was deliberate. Obviously, the behaviour of the applicant in this regard ought to have been regarded as unacceptable and requiring attention. Inappropriate as this style of conduct was, most of the incidents concerned events which were either stale, as in the 1986 incident, or tending that way. Looked at now in isolation, I consider the Commissioner would have little chance of succeeding with a termination based upon them; the prospect of a finding of harshness would then appear great.

However, the situation now faced is that there is evidence before the Commission from the two parties to the incident concerning the allegation of disobedience of orders and there arises what is an unavoidable need to resolve the matter on the basis of this evidence. My conclusion on this issue is that I prefer Constable Watt's evidence to that of the applicant.

My preference for the evidence of Constable Watt arises not merely from a preference of one recollection over another but the rejection of one version of events in favour of the other. I found Constable Watt's evidence to be plausible, unaffected by any apparent desire to be vindictive, given calmly and rationally and, most important, convincingly. On the other hand, apart from the tendency to adopt an argumentative approach in his evidence as earlier referred to, the consequence of which was that he was frequently unresponsive to questions put to him, I found much of the applicant's evidence to be internally inconsistent, less plausible and, on critical issues, unconvincing. As I have recorded, I have preferred the evidence also of Constable Brogan on an issue of substance which, indeed, provoked the inquiry into the applicant's suitability.

27 Peterson J then turned to deal with the final allegation made against the appellant, that is, his persona as the "Smiling Policeman". His Honour dealt with that allegation in this way: 51 I turn now to the final issue raised against the applicant with which I intend to deal. The applicant developed at an early stage in his police career a public reputation for his happy, smiling demeanour as a policeman on point duty within the City of Sydney. This was fostered by him over the years and utilised in the context of his activities within the Service. He used a business card which identified him, with a photo, as the "smiling policeman". This appears to have been a reflection of a desire to develop and maintain a high public profile. This caused some criticism of him within the Police Service and indeed in the evidence in this case. There are issues in the case about whether the applicant breached various directions to the effect that he not adopt or utilise this persona without specific prior approval. The specific allegation was that he was untruthful to Superintendent Jacobsen by denying he had handed out his business card to persons at the front desk of his station. Regrettably, this incident too involved a play on words of a kind which one would prefer not to see in disciplinary matters but which arose often in this case. On balance I consider a finding that his conduct did amount to lying should not be made, although I come to that view solely on the papers. It seems to me that what was accepted as a denial that he was handing out his card might have been intended to refer to a criticism he was wasting time. The subsequent admission that he had handed out the card tends to support that.

28 His Honour's judgment concluded shortly thereafter in the following paragraph: 53 The failings which have been identified in the applicant's conduct do not go only to his supervisory role as a sergeant of police. Had they done so, there may have been some reason to consider reinstatement in employment with an opportunity being provided to the Commissioner to consider retraining or demotion. However, taking into account all the features of this case, I have come to the conclusion that the Commissioner was justified in forming the opinion that the applicant should be removed from the Service. I do not shrink from stating that such a decision has been difficult to arrive at, given the good service in many respects of the applicant. Many of those features of good service were referred to in the character evidence tendered in the proceedings. There was also reference to a number of functions which did not involve supervision, such as community policing, which the applicant performed more than adequately. However, the problems which have arisen in this matter and dealt with in this decision, particularly with the issue of the applicant's contact with Constable Watt, mean that the applicant has not established that his dismissal was harsh, unreasonable or unjust and make it necessary that I refrain from making any order in the applicant's favour. Accordingly I order that the application be dismissed.

29 His Honour's findings of fact on these matters were not challenged on appeal, although submissions were advanced which went to the significance or severity of the appellant's failings. We will turn to these considerations in reviewing the appellant's submissions.

30 Mr E Wasilenia of counsel, who appeared for the appellant, submitted that the appeal raised matters of considerable significance as to the construction of the relevant provisions of the Police Service Act and, as such, raised sufficient public interest to warrant the grant of leave.

31 Counsel, in dealing with grounds 1 and 2 of the appeal, submitted that his Honour's conclusions in paragraph 13 of his decision disclosed error as to the construction of provisions of the Police Service Act. It was submitted that his Honour erred in finding that the 'consequences for the applicant' attendant upon his removal from the Service are of 'less significance' in review proceedings brought under the Police Service Act.

32 Mr Wasilenia submitted the effect of s181G of the Police Service Act was that the provisions of the Industrial Relations Act, which ordinarily apply to applications brought under s84 thereof, and the principles developed as to those provisions, applied with equal force to proceedings under s181E of the Police Service Act. He relied, in this respect, upon the Full Bench decision in Newton v Commissioner of Police (1999) 87 IR 66. It was submitted each element of the test of 'harsh, unjust or unreasonable' needed to be considered in review proceedings just as they are with proceedings brought pursuant to s84 of the Industrial Relations Act.

33 It was further submitted that the Commission is required to determine in review proceedings under the Police Service Act, whether the order to dismiss was harsh, unjust or unreasonable, not merely whether the decision was made lawfully: Van Huisstede v Commissioner of Police (2000) 98 IR 57.

34 His Honour did not need to make a finding, it was contended, as to whether or not the issuing of the order by the Commissioner was "justified". Section 181F only required that the reasons of the Commissioner be considered. The substantive basis for relief, being whether the Commission found that the removal from the Service was harsh, unjust or unreasonable, could not be subsumed by the procedural instruction "[i]n conducting a review under the Division …" in s181F of the Police Service Act. A finding by the Commissioner that some allegations levelled against the appellant were borne out did not, in the submission of the appellant, necessarily preclude a finding that the removal of the appellant was harsh, unjust or unreasonable

35 It was submitted that there was room for what his Honour considered the "middle view"; that is, that the Commissioner was justified in forming the loss of confidence but that removal from the Service would still be harsh, unjust or unreasonable. For his Honour to consider that the removal was harsh, unjust or unreasonable, and then not grant relief, would defeat the review process under s181E incorporating as it does the provisions of the Industrial Relations Act.

36 It was contended that his Honour also erred in paragraph 16 of his decision in finding that the interests of an applicant for review under the Police Service Act only concerned whether the applicant was "not denied natural justice" or whether "any dismissal was justified". His Honour, due to his construction of the Police Service Act, appeared to have considered the applicant's interests to be restricted to ensuring that his removal from the Service was procedurally fair.

37 This failure to properly have regard to the appellant's interests, so it was contended, resulted in a failure to ensure proportionality between the alleged misconduct and the penalty imposed as a result thereof.

38 Mr Wasilenia contended that the ordinary principles applicable to unfair dismissal proceedings apply equally to a review conducted pursuant to the Police Service Act: Bartlett v Commissioner of Police (1998) 87 IR 436 and Wells v Commissioner of Police (2000) 100 IR 106. As such, and having regard to the age of the appellant, his very limited future employment prospects and his potential loss of $380,000 in superannuation benefits, it was submitted that the penalty was too harsh in the circumstances of this matter. 39 It was further submitted that the interests of the appellant ought also to be viewed against a background of the removal being disproportionate to the gravity of "misconduct" in respect of which the employer acted. This was not a case of corruption or conflict of interest. Many of the allegations were "stale". Many of the allegations were not serious. Some of the allegations had been found wanting in substance. Some of the allegations could not constitute misconduct at law. The Commission at first instance did not consider these matters as grave, it was submitted, but gave disproportionate attention to the Commissioner having exercised his "statutory right to dismiss".

40 It was submitted that his Honour also erred in paragraph [14] in finding that the Commission lacked jurisdiction to receive an undertaking. There was in fact no jurisdictional constraint that precluded the receipt of an undertaking from the appellant as to his future conduct if reinstated in employment. It was submitted that such undertakings are received to assist a tribunal to come to a decision whether or not to reinstate and not only where the tribunal has otherwise determined to find in favour of the employees: Toby v Container Terminals Australia Ltd (Australian Industrial Relations Commission, Boulton J, Marsh SDP and Jones C, No. 28825/00, 24 July 2000).

41 Mr Wasilenia addressed in turn each of the items in the Notice issued pursuant to s181D. We briefly refer below to the appellant's submissions in this respect.

42 As to item 1, the attendance by the appellant upon the home of a person whom the appellant had dealings during his shift, was not an allegation of want of care in the actual discharge of his duties by way of neglect or omission. This was an allegation of poor judgment. The recommendation that was made in response to this incident was that the appellant be counselled and that no record of the matter be entered on the appellant's service register. That recommendation was carried into effect with the appellant being counselled for his actions. No further action was taken in this regard from the incident in 1992 until the issuing of the s181D Notice.

43 As for item 2, the alleged failure to remain strictly vigilant whilst supervising a prisoner (accepted as a fairly serious allegation), nothing happened following that incident for two years until in 1994 the appellant was "admonished" for his actions. The disciplinary action was one step up from counselling. No further action was taken until it was one of the matters raised in the s181D Notice. It was stressed that the appellant had apprehended the prisoner.

44 Item 4 concerned a meeting of sergeants on 24 June 1994, as a result of alleged failings in the appellant's capacity as a supervisor. Mr Wasilenia contended that nothing flowed from that meeting. No remedial training was offered and no disciplinary action was taken. The appellant remained at the North Sydney Station from June 1994 until 1995 when he was transferred to Mosman.

45 As to item 5 of the Notice, that is, the alleged breach of a directive to not have any contact with four female officers who had made complaints of sexual harassment against the appellant, no action was taken by the Service. The appellant was initially charged, however, these charges were withdrawn. It was contended that there was no question of the appellant having been counselled, admonished or otherwise reprimanded. The matter was, it was submitted, simply dropped.

46 As to the difficulties identified at the Mosman Station in item 6, no disciplinary action was taken and no remedial training was suggested. Mr Wasilenia contended that his Honour rightly considered these matters of little consequence as they amounted to, in essence, professional disagreements. 47 Mr Wasilenia contended that the alleged breach of copyright vested in the Police Service Weekly, the matter raised against the appellant in item 7 of the Notice, resulted in no disciplinary action, nor the institution of any proceedings for restraint in a civil court.

48 As to items 8, 9 and 10, that is, the alleged adoption of the smiling policeman persona in the appellant's interviews and presentations to print media and community organisations, no disciplinary action was taken by the Police Service. It was submitted, in relation to the matters raised in items 9 and 10, that this would hardly be surprising, given their "trivial" nature.

49 Mr Wasilenia submitted that, in relation to item 11 of the Notice (the alleged sexual harassment of two female officers), no action was taken in this regard by the Police Service. However, and more significantly, these matters could not be said to constitute 'sexual harassment' at law in the context of s22A of the Anti-Discrimination Act 1977. He contended that there was a fine balance between what may be considered an unwelcome sexual advance or unwelcome conduct of a sexual nature that would be inappropriate and "testing the waters" which would not be. He submitted there was no "specific unwelcome sexual advance" alleged by the respondent and the mere use of a double entendre in the circumstances was not tantamount to sexual harassment.

50 In relation to the appellant's alleged untruthfulness in items 13 and 14 of the Notice, it was submitted that neither allegation gave rise to any disciplinary proceedings. He submitted, whilst this may be explained by the issuing of the Notice shortly thereafter, nevertheless, there was no specific admonishment or otherwise for the allegations of untruthfulness.

51 Mr Wasilenia submitted that the use of the COPS system by the appellant alleged in item 12 of the Notice, was inappropriate. However, it was contended that, in the context of the access having been made for the purpose of dealing with a complaint made against him that had arisen out of a close and yet somewhat "dysfunctional" or "disturbed" personal relationship, dismissal (and the resulting consequences for the appellant) was a manifestly harsh penalty.

52 As to the question of leave to appeal, Mr J J Graves SC, who appeared with Mr J H Pearce of counsel for the respondent, submitted that leave should be refused as the decision at first instance did not disclose any errors of law nor fact and that, as such, the matter did not attract the requisite degree of importance to warrant the granting of leave.

53 Turning to the specific grounds of appeal, the respondent submitted that the appellant's attack was based on a misinterpretation of what his Honour was considering in the relevant passage. The statements contained within paragraph 13 of the first instance decision should be viewed as being limited to the facts as found in the judgment, that is, the context in which the statements were found should indicate that the observations there set out were not statements made generally but were conclusions directed to the particular factual circumstances associated with the appellant's application for review. Having regard to his Honour's findings, it was submitted that such conclusions were reasonably open and no appellable error had been demonstrated in relation them.

54 It was submitted that this must be the case as his Honour would otherwise have been departing from what he had set out a mere matter of months earlier in his decision in Wells v Commissioner of Police at [116] - [117].

55 As for the submission that the interests of the appellant were not adequately taken into account, it was submitted that his Honour had examined and specifically commented upon the circumstances of the appellant. Where a police officer is removed under these provisions there was always, it was contended, going to be hardship. These matters are to be taken into account in the determination of review proceedings. However, they are merely one of the factors that need to be considered. It was submitted that balanced against that consideration was the fact that the Commissioner had lost confidence in the appellant's suitability to remain as a police officer. His Honour at first instance took into account all relevant matters and on a 'fine balance' determined not to reinstate the appellant. His Honour's reference to these matters being of less significance in review proceedings under s181E of the Police Service Act needs to be seen in context as being a conclusion based on and limited to the factual circumstances as found by his Honour in the present proceedings and not a general statement of the law.

56 It was submitted that the statements by his Honour in paragraph [16] of his decision, that a failure to afford a fair process may not be adequate to warrant interference with the Commissioner's determination to issue an order under s181D, should similarly be seen in context and read as being limited to the circumstances as found by his Honour and not some general statement of law.

57 As to ground 3 of the appeal, the respondent submitted that his Honour's conclusion, that there was no jurisdiction to accept an undertaking of the kind suggested by the appellant due to the particular purpose of proceedings and the consequences that flow from them, was plainly correct. The subject matter of the review under s181E of the Police Service Act directs attention firstly to the reasons for the decision to dismiss, secondly the case presented by the appellant as to why the dismissal was harsh, unreasonable and unjust and thirdly, the case presented by the Commissioner in answer to the appellant's case: Newton v Commissioner of Police at 75 and Van Huisstede v Commissioner of Police at [193], [203] and [221]. It was submitted an undertaking of the kind given at first instance was not concerned with the subject matter of the review unless and until the Commission has determined that the decision to dismiss the appellant was harsh, unreasonable or unjust.

58 Mr Graves submitted that the reference by the appellant to the list of matters set out in s181D in the Notice was inappropriate. The factual matters relied upon by the trial judge in coming to a conclusion that the removal from the service was justified were limited. The first of these related to the unauthorised accessing of the COPS system. He submitted that the conduct of the appellant was of considerable significance, as indeed his Honour found at first instance. The unauthorised accessing of the system arose in circumstances where the appellant had to choose between pursuing matters of personal interest or the interests of the Service. In making the unauthorised access the appellant clearly put his personal interests above those of the Police Service. Mr Graves drew particular attention to the second unauthorised access of the system, given that it was made in the context of an investigation into the conduct of the appellant in the presence of a junior officer. It was submitted that, in considering this conduct and having regard to the experience and length of the appellant's service, it was legitimate for the Commissioner and the trial judge to take into account not simply the conduct on the day in question but the nature of the motivation of the officer in conducting himself in this way. Where his personal interest and duty conflicted, the appellant chose his personal interest.

59 It was submitted that given the findings of the trial judge in relation to the appellant's supervisory difficulties, the complaints of sexual harassment made against the appellant and, in particular, the direct disregard of directives and untruthfulness of the appellant, the exercise of discretion vested in the trial judge, properly exercised, could only have led to the conclusion reached by Peterson J. His Honour had the advantage of seeing the evidence given at trial and those findings were clearly open to his Honour. They were not challenged on appeal. In the light of the findings made against the appellant, Mr Graves contended that the dismissal of the application by his Honour was a proper exercise of his discretion.

60 It was common ground in these proceedings that the Commission's jurisdiction to hear and determine the appeal was to be found in Part 7 of Chapter 4 of the Industrial Relations Act and, in particular, s187 thereof. Having regard to the provisions of ss181G(1) and 181J of the Police Service Act, we consider that approach was well-founded and that the appeal should proceed upon the same basis as an appeal brought against a decision of a Member of the Commission made under Part 6 of Chapter 2 of the Industrial Relations Act. It follows that the appeal may only be brought with leave of the Full Bench and the nature of the appeal is that specified in s191 of the Industrial Relations Act. 61 As to the question of leave to appeal, it has been frequently stated by this Commission that leave to appeal ought not lightly be granted: Knowles v Anglican Property Trust (No.2) (1999) 95 IR 380, Box Valley Ltd v Price (2000) 97 IR 484 and Police Service of New South Wales v Batton (2000) 98 IR 154. However, we consider that the appeal raises important questions as to the operation of the provisions of Division 1C of the Police Service Act and the conduct of review proceedings by the Commission under that Act. As such we consider that the appeal raises matters of such importance as to warrant the granting of leave to appeal in the public interest

62 The appellant's challenge to the decision at first instance primarily focused upon what the appellant described as errors of law and principle. It was submitted that the errors were such as to substantially influence the reasoning process and the ultimate determination made by his Honour. The conclusions of law and principle reached at first instance which were challenged by the appellant may be broadly stated as follows: 1. In the case of the removal of a police officer under the Police Service Act, a different test is to be applied in determining the application and ultimately the exercise of discretion to make orders, than that found in s84 of the Industrial Relations Act . 2. A finding that the removal of an officer was harsh, unreasonable or unjust in the context of a review under s181E of the Police Service Act was of less significance than a similar finding made under s84 of the Industrial Relations Act as the central consideration arising under a review was whether the Commissioner was "justified in forming the loss of confidence in suitability to continue as a Police Officer". There was no room for a "middle view" in which it may be found that the basis for a loss of confidence was demonstrated but that the dismissal was nonetheless harsh, unreasonable and unjust. 3. Notwithstanding a later reference in the first instance judgment to the notion of harshness, his Honour put out of account the consequences for the applicant of the dismissal in reaching his decision, notwithstanding that his Honour found those consequences to be severe and otherwise "a most material fact" in determining an application, if it had been brought under s84 of the Industrial Relations Act .

63 We note that the respondent sought to characterise the decision of his Honour differently and contended that any findings made by his Honour in this respect were confined to the particular circumstances of this case. The respondent made submissions generally supporting the findings of law and principle made at first instance. We do not accept those submissions. We consider that His Honour reached conclusions of law and general principle in the manner as contended by the appellant that directly affected his reasoning process and the determination to dismiss the application at first instance. Those findings, in our view, constituted errors of law and principle. Our reasons for that conclusion may shortly be stated as follows.

64 We consider that the errors essentially derived from the failure to consider the terms of s181G of the Police Service Act. That section was the subject of discussion by Walton J, Vice-President, in Van Huisstede v Commissioner of Police in circumstances where the respondent had contended that the legislature intended to draw a distinction between the "removal" of a Police Officer and a dismissal at common law. It had been contended in that respect that a distinction should be drawn between an application brought under s84 of the Industrial Relations Act and a review conducted under s181E of the Police Service Act. His Honour made the following preliminary observations as to the operation of s181G: I note that the Commissioner relied upon the provisions of s181D(8) to demonstrate that the legislature had drawn a distinction between the dismissal and the removal of an officer. This contention would be usefully examined in the context of ss51 and 82 of the Act. However, it is not clear to me that a distinction has, in fact, been drawn by the legislature between 'dismissal' and 'removal' in s181D(8). Even if it did give such an indication, it does not seem, in my view, to affect the requirements of s181G (which is a key provision governing review proceedings under Division 1C of Part 9 of the Act). Section 181G applies the provisions of the IR Act in relation to the review of unfair dismissals (with some exceptions) to an application for review under the Act. Notwithstanding that the legislature expressly constrained the operation of certain aspects of the IR Act, it did not limit the Commission's general powers as to unfair dismissals, and to this extent, it may be inferred that the legislature intended that the Commissioner's decision would be reviewable in a similar manner as dismissals otherwise reviewable under Part 6 of Chapter 2 of the IR Act.

65 We consider that those observations represent the correct approach to the construction of s 181G of the Police Service Act. That provision has the effect of applying to proceedings brought under s181E of the Police Service Act the provisions of Part 6 of Chapter 2 of the Industrial Relations Act in such a manner as to import the provisions of Part 6 to the review proceedings together with the corresponding adoption of the jurisprudence of the Commission with respect to the unfair dismissal provisions of the Industrial Relations Act, except where expressly excluded by the provisions of s181G(1).

66 This much is clear, in our view, from the plain words of s181G of the Police Service Act. It also follows from a consideration of the nature of the exclusions that appear in s181G. Those provisions indicate the legislature sought to exclude only the general powers of the Commission in relation to unfair dismissals in review proceedings under the Police Service Act, to the limited extent specified in the section. We note, in this respect, in Newton v New South Wales Police Service (No. 2) (1999) 87 IR 66 at 80, the Full Bench of the Commission stated: The effect of s181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications bought under s84 apply to s181F review proceedings, subject to the there specified modifications.

67 We do not consider that the provisions of s181F of the Police Service Act result in any different conclusion. Section 181F requires the Commission to consider sequentially the reasons for the Commissioner's decision to remove an applicant from the Police Service and then the cases respectively for the applicant and the Commissioner as to whether the removal was harsh, unjust or unreasonable (see, Newton (No. 2) at 75). While this requirement may vary the procedure usually adopted in the hearing of an unfair dismissal matter under s84 of the Industrial Relations Act, the variation is not of great significance and, in any event, does not alter the test to one different to that applied in such a matter, that is, whether the dismissal was harsh, unjust or unreasonable.

68 Further, the requirements of s181F(3) are relevant to determining whether the removal of a police officer was harsh, unreasonable or unjust: see Van Huisstede at 248. However, those factors do not diminish the obligation on the Commission to determine whether the removal of a police officer was harsh, unreasonable or unjust having regard to the principles ordinarily applied in unfair dismissal matters. The provisions of s181F(3) are simply matters to which the Commission is also to have regard in making such an assessment (which, in any event, would be considerations broadly relevant in the adjudication of many unfair dismissal applications under the Industrial Relations Act) and particularly so where the proceedings relate to positions in the public sector or other areas where the public interest may have particular relevance.

69 Once this conclusion as to the statutory scheme and, in particular, the operation of s181G is reached it follows, (as was recognised by Peterson J at first instance) that any exclusion of consideration of the consequences of a removal (even if prima facie the decision was in some way said to be "justified") is erroneous as such an approach would effectively remove from consideration essential aspects of the statutory tripartite test, such as, whether the removal was, in all the circumstances, "harsh".

70 In order to illuminate this conclusion, it is unnecessary to go any further than to recall the classic exposition of principles applicable to unfair dismissal matters given by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233, which principle, whilst stated in relation to proceedings under the Industrial Arbitration Act 1940, is equally applicable to proceedings under the Industrial Relations Act. His Honour there stated: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.

71 The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate 'justification' in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act.

72 Further, the provisions of s181F of the Police Service Act point to a further reason as to why the challenged decision was in error. Section 181F(1)(b) requires that the Commission consider, in an application brought under s181E, the case presented by the applicant as to why the removal of a police officer was harsh, unreasonable or unjust. Such a case was brought by the officer in this matter, both in his submissions to the Commissioner (made pursuant to s181D(3)(b)) and before the Commission at first instance). In such circumstances, putting the consequences of the removal out of account or, to be treated in such a way as to be overborne by other considerations, such as the 'justification' for the Commissioner's basis for forming a conclusion, was, in our view, wrong. That approach was plainly contrary to the provisions of s181F of the Police Service Act, which requires that the Commission consider such matters when they arise in the applicant's case. So much would also seem to follow from the provisions of s181F(3)(a) whereby the Commission is expressly required to consider the "interests of the applicant". That consideration plainly requires that the consequences for the applicant of his or her dismissal be a material consideration.

73 It appears to us that the proceedings at first instance miscarried because his Honour imposed the test for the determination of the application as whether the Commissioner was justified in coming to the conclusion that he had lost confidence. His Honour considered that approach was consistent with the objects of the Police Service Act. We consider that the substitution of that test is wrong and should not be applied in such matters. There is no warrant to substitute that approach for the statutory criteria in s181G and s84(1) of the Industrial Relations Act as interpreted by s181G. The approach adopted by his Honour resulted in a narrowing of the consideration to an examination of the particular merits of the reasons why the Commissioner had come to a conclusion that he had lost confidence.

74 The provisions of the Act do not so confine the Commission in considering an application under s181E. It is true that the Commission is required to consider, under s181F(1)(a), the reasons given by the Commissioner. In that respect, the Commission may deal with the substance and basis for the allegations brought against an officer, including whether there is a basis in fact of the allegations levelled against a police officer. However, the Commission will consider other matters and bring into account such matters as to whether the dismissal was harsh, unjust or unreasonable, which go to the merits of the application, including a consideration of the procedures adopted by the Commissioner. These matters may transcend the particular reasons stated by the Commissioner for his loss of confidence, as the statutory directive is for the Commission to consider whether the removal was harsh, unreasonable or unjust on any relevant or reasonably available basis and not simply whether the Commissioner's conclusion was sustainable or not, although the reasons for the Commissioner's loss of confidence will be plainly a matter of particular significance in such proceedings. Whether the nature of the proceedings being a review of a decision as to a 'loss of confidence', may in some way affect the nature of any such merit review, does not arise for consideration in this matter.

75 These latter considerations then lead to a consideration of the second major aspect of the appellant's case, namely, whether his Honour was in error in concluding that, where the substance of the allegations made against a police officer were satisfied, it was unnecessary to embark on any examination of process. In substance, his Honour suggested that, in such circumstances, a procedural failure could not suffice to justify any interference with the ultimate sanction. Thus stated, we cannot agree with the conclusion reached by his Honour. The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act, laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least "a careful and punctilious regard to correct procedure", and are of significant importance to the review of a decision made under s181D of the Police Service Act. In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows at [193] to [200]: 193 In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: … it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: … a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself … That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons.

194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner.

195 As was said by the Full Bench in Bigg (No. 2) , the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision.

196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, the Full Bench stated: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of "an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss" or a failure to afford procedural fairness which causes a "substantial and irrevocable prejudice to the employee" will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

Further, the Full Bench stated (at 390): While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.

198 These comments were supported in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50.

199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion.

200 I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act. (emphasis added)

76 We nextly turn to consider whether, having regard to those errors of law and principle, this is an appropriate matter for appellate intervention. We have come to an affirmative view about that matter for two reasons.

77 Firstly, we consider that the erroneous approach had a significant bearing upon the conclusions reached by his Honour. His Honour observed that his conclusions as to the operation of the Police Service Act had the result of excluding material considerations that would have otherwise been taken into account in favour of the appellant. As his Honour's conclusions in that respect, as we have found, constituted an error of law, there is a firm basis on the principles in House v The King (1936) 55 CLR 499 for appellate intervention. Furthermore, we consider that the erroneous approach of law and principle did affect, to a substantial degree, the ultimate determination made at first instance.

78 Secondly, we consider that this matter represents no exception to the general principle that where a judgment concerning an unfair dismissal matter is overturned on appeal, the Full Bench should normally form its own view as to the application: Wilson v Department of Education & Training (2000) 100 IR 1 at [60] to [63].

79 We turn then to consider the question of whether, in all the circumstances in this matter, the removal of the police officer was harsh, unjust or unreasonable.

80 The Commissioner, in his Statement of Reasons, identified the various allegations of incompetence levelled against the appellant and provided an indication as to the weight each played in his assessment of the determination to issue the order. The weight each item played were variously described as matters which had not been given "a great deal of weight", to those which were given "reasonable weight" or "caused concern" or were "disturbing", to matters which "weigh heavily upon my decision". The Statement concludes in the following terms: I have formed the view, based on weighing up the material provided to me, in contrast to your denials, that you have, over an extended period displayed a lack of competence to carry out the duties of a senior police officer. You have shown an inappropriate attitude and demeanour towards female officers, shown a continued disregard to the orders of your superiors and abrogated your responsibilities as a police officer. For these reasons I find that I cannot have confidence in your suitability to remain a member of the New South Wales Police Service.

81 It is plain that in making the decision to issue an order the matters which primarily weighed on the Commissioner's mind were the incompetence alleged against the appellant in relation to his supervisory capacity as a senior police officer, the alleged sexual harassment of female officers, the disobedience to the various directions that had been given to the appellant and the improper access of the computer records. It is equally plain that items 1 and 2 in the Notice played little role in the removal of the appellant.

82 We propose to make an assessment of the question as to whether the removal of the appellant was harsh, unjust or unreasonable upon the basis of the findings of fact made by Peterson J. Those findings were not the subject of serious challenge before us. Whilst the submissions of Mr Wasilenia as to those matters succeeded to an extent to put the seriousness of them in context, nonetheless the essential features of the appellant's failures remain significant. In our view, the most significant aspect of these failures was the misuse by the appellant of the COPS system and his behaviour towards female employees. As was noted, correctly in our view, by Peterson J, the supervisory failures would generally point to some outcome other than the removal of the police officer.

83 The case brought on appeal requires us to consider squarely whether the removal was "harsh". His Honour did consider some mitigating circumstances. He indicated that the supervisory failures would not of themselves be enough to sustain the removal of the appellant. Further, his Honour considered that the decision not to intervene in the removal of the appellant was not without its difficulties. His Honour considered particularly the mitigating circumstances of the good service of the appellant and character references in his favour. These are clearly matters that need to be taken into account when considering unfair dismissal applications and apply equally to review proceedings such as those presently before us.

84 In this case, we note the appellant joined the Service on 13 August 1962 as a cadet. He was promoted to the rank of sergeant on 14 February 1982 and continued in that role until his removal. He has been a member of the Service all of his working life; a period of more than 35 years. Over that time he has received numerous commendations and ought be regarded as having been a hardworking and dedicated officer.

85 However, Peterson J did not, in our view, give such sufficient consideration to the consequences for the appellant. As we have earlier noted, by reason of the conclusions of law and principle reached by his Honour, his Honour did not weigh, in the balance, the entire question of the harshness of the removal of the appellant.

86 His Honour recognised that the consequences of the appellant's removal was no small matter in this case. That conclusion was, no doubt, correct. The appellant suffered a very significant reduction in superannuation benefits as a consequence of his removal. His removal occurred late in his career, with it being unlikely that he would obtain reasonably comparable employment. However, and as earlier noted, we consider that his Honour effectively put these matters out of account. This is particularly significant, as his Honour had concluded that his ultimate decision was one of a fine balancing in any event.

87 When the consequences of the appellant's removal are taken with the other mitigating circumstances that we have referred to, we consider that the removal of the appellant was, in all the circumstances, harsh.

88 Where the Commission finds that the removal of an officer or employee was harsh, unreasonable or unjust, the primary remedy available is reinstatement or re-employment. It is only in circumstances where reinstatement or re-employment are found to be impracticable that the Commission will give consideration to the remedy of compensation: see Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 342. This conclusion is, in any event, clear on the plain words, structure and evident purpose of the terms of s89 of the Industrial Relations Act.

89 The grant of any relief to the appellant in this matter needs to be considered in the light of the undertaking proffered by the appellant to the Commission at first instance and on appeal. He gave an undertaking that he would resign from the Service upon attaining 55 years of age, if reinstated or re-employed. The appellant's date of birth was 8 June 1946. In order to retire in accordance with his undertaking, the appellant would have needed to remain in the Service until 8 June 2001. The appellant was removed from the Service on 14 December 1999.

90 No real issue arises in this appeal, as to the receipt of this undertaking. Peterson J's refusal to accept the undertaking in the proceedings at first instance does not bear upon the matter, as he found, that an undertaking may be provided where the Commission has otherwise found in favour of the applicant in unfair dismissal proceedings. We agree. Whilst we do not consider it necessary to deal with the matter in detail, we note, however, that the terms of s89(8) of the Industrial Relations Act would not seem to be consistent with the limitation on the receipt of an undertaking in the manner contemplated by his Honour.

91 It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191 - 192 (which was adopted in Hollingsworth v Commissioner of Police at 341 - 342). Except for the provision of the undertaking by the appellant, we may not have considered there existed the basis to order reinstatement. The appellant had substantial difficulty in maintaining productive and harmonious working relationships over a long period of time with his subordinates and superiors. Further, the appellant had engaged in some inappropriate behaviour both with respect to the access to the COPS system (even allowing for the explanation of that behaviour given by the appellant) and his approach to female staff.

92 However, the effect of the making of an order for reinstatement will be that, having regard to the undertaking given by the appellant, he will retire rather than resume his position with the Service. In these circumstances and, having regard to the consequences of the removal, we consider that it is appropriate to reinstate the appellant in such a manner to enable the appellant to retire with the relevant superannuation benefits. 93 The Commission orders:

3. The decision of Peterson J of 8 March 2001, dismissing the appellant's application, is set aside;

4. The appellant is reinstated as an officer of the New South Wales Police Service on the following terms and conditions: (a) The appellant shall, by his undertaking to retire on 8 June 2001, so retire; (b) The appellant shall receive no payment in wages or allowances for the period 14 December 1999 until his retirement on 8 June 2001 save for monies already received by him for that period or which were paid to him upon his removal; (c) The appellant's period of employment to 8 June 2001 is taken not to be broken by his removal and the terms and conditions of his employment until that date are taken not to be otherwise affected except to the extent set out in these orders. 5. Liberty to apply is granted to the parties as to the form and detail of these orders provided such leave is exercised within 60 days of this decision.

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