Mahoney and Commissioner of Police [2003] NSWIRComm 67 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

Mahoney and Commissioner of Police [2003] NSWIRComm 67

[2003] NSWIRComm 67

Industrial Relations Commission (NSW)|2003-07-01|Before: Sams DP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Sams DP

Catchwords

04/29/2003 DATE OF JUDGMENT: 05/29/2003

Source

Original judgment source is linked above.

Catchwords

04/29/2003 DATE OF JUDGMENT: 05/29/2003

Judgment (161 paragraphs)

[1]

CITATION : Mahoney and Commissioner of Police [2003] NSWIRComm 67 APPLICANT: PARTIES : Phillip Mahoney RESPONDENT: Commissioner of Police FILE NUMBER: 6372 of 2002 CORAM: Sams DP Review of disciplinary action against police officer - s173 order under the Police Act 1990 - Commission's powers of review - reviewable and non reviewable action - whether order harsh, unreasonable or unjust - onus on applicant - admissions of untruthfulness and forgery of superintendent's signature - misconduct over a long period - loss of increments - Conduct Management Plan - whether removal from EDO duties to general duties constitutes reviewable action - officer involved in major traumatic incidents - personal and family traumas - effect on health - police psychologist's report - other medical evidence - applicant's contrition - past record - bravery awards and commendations - lesser penalty than originally proposed - applicant "worth saving" - Conduct Management Plan not implemented - failure to provide all documents relevant to decision - legislation and principles - relationship to Industrial Relations Act - public interest - interests of applicant. CATCHWORDS : Held, definition of harsh, unreasonable or unjust same as found in Industrial Relations Act - link to s181E of the Act - consistent medical evidence - psychologist's report not given sufficient weight - deep sense of remorse and contrition - character witnesses persuasive - meritorious record - applicant's onus discharged - public interest not affected - other matters taken into account - unnessecary to decide if removal from EDO duties constitutes reviewable action - applicant unable to return to EDO duties - medical clearance required and completion of Conduct Mangement Plan - recommendation that applicant be returned to EDO duties when appropriate - loss of increments order revoked. LEGISLATION CITED : Industrial Relations Act 1996 Police Act 1990 Bankstown City Council v Paris (1999) 93 IR 209 Burrows v Commissioner of Police [2001] NSWIRComm 333 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Cassel v Commissioner of Police [2003] NSWIRComm 73 Container Terminals Australia v Xeras (1991) 23 NSWLR 214 Electricity Commission of New South Wales v Crump (1993) 48 IR 296 Heape v General George Carpets Pty Ltd[2002] NSWIRComm 146 CASES CITED : Jankowski v Excellent Management Services Pty Ltd[2003] NSWIRComm 32 Kennedy v Cumnock No.1 Colliery Pty Ltd (2001) 104 IR 378 Laird v Commissioner of Police [2001] NSWIRComm 253 Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) 73 AR 231 Newton v NSW Police Service (1999) 87 IR 66 Outboard World v Muir (1993) 51 IR 167 Regina v Maxwell NSWCCA 23 December 1998 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Wells v Commissioner of Police (2000) 100 IR 106 HEARING DATES: 04/28/2003; 04/29/2003 DATE OF JUDGMENT: 05/29/2003

[49]

47 Dr Clark's clinical opinion was as follows: The man developed Anxiety Disorder, specifically a Post-traumatic Stress Disorder, following exposure to severe trauma. This has gone on to a chronic anxiety depression or Dysthymia. He is tearful, an insomniac and has lost his libido. However, I note he has never been suicidal. He has an underlying personality structure known as an Anancastic Personality or Obsessive-compulsive Personality and this has held him in very good stead during his work. However, since the increase in the anxiety level, he becomes overwhelmed by an obsessive inability to make decisions. That is, we have a man who has underlying good traits of carefulness, perfectionism and conscientiousness, who has developed a Post-traumatic Stress Disorder. However, following the development of the disorder, he did not actually have any treatment apart from a group session for an hour after the disaster. He still has the anxiety signs of a Post-traumatic Stress Disorder, he has this hyper vigilance, he has become easily startled, he does not like loud noises, and he is easily irritated. For example, he keeps the windows closed now. Any reminders of the events get to him and were enough to push him to tears through the interview. It is important to distinguish in these disorders between independent trauma and what might be called dependant trauma or life events. He certainly had many independent trauma and the last two, the Thredbo landslide and the Barracks Flat fire were independent. That is, nothing to do with his self directed problems. He has been through many 'dependant trauma' in his life, his divorce and his brother's problems for example, and he had no distressing reaction. It is only since the Barrack's Flat fire that the home events or 'dependant' situations have become intolerable. That is, there is a link between the two, in that he now cannot cope with home as he used to, because of the work related injury. This, rather that the other way around, as implied by the other account given by Antoinette Harmer. Antoinette Harmer stated - It is reasonable to conclude that this was due to the accumulation of a series of extreme personally distressing incidents and the accumulation of stressful work related incidents. She does not draw the distinction between dependant and independent events and one can see that the more recent personal incidents are dependant on the original Barracks Flat fire and the Thredbo incident. In answer to your specific questions: You ask that I assess Mr Mahoney and provide a medical report containing an assessment of his condition and the impact of his condition on his conduct, particularly -

[132]

126 These considerations are also found in s181F(3) of the Act. His Honour Grayson DP observed that the public interest considerations under s181 are apposite to proceedings under s173 of the Act. He relied on the comments of his Honour Walton VP in Van Hussitede to this effect: The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interests and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. The subsection also makes clear that the public interest is only taken to "include" the public interest in the integrity of the police Service. The public interest will seldom be unitary in nature. The removal of a police officer from his employment, as with many other issues which come before the courts, presents the possibility of many, and often competing, public interests. In Re Queensland Electricity Commission; Ex Parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 395, for instance Mason CJ, Wilson and Dawson JJ indicated (albeit in a different statutory context): Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree. In this case, there are many factors, which the public may have an interest in upholding, including the interests of maintaining the integrity of the Police Service. Not the least of these will be the importance of ensuring that public officials who are conferred responsibilities by the Parliament, the exercise of which may affect the rights or reputation of individuals, carry out those responsibilities in a manner which is both just and reasonable.

Mahoney and Commissioner of Police [2003] NSWIRComm 67

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Judgment (161 paragraphs)

Cases Cited (17)

Cited By (5)