Mahoney and Commissioner of Police [2003] NSWIRComm 67

APPLICANT: Mr B Docking of counsel SOLICITOR: Ms A McRobert (Jones Staff & Co Solicitors) LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel INSTRUCTED BY: Ms A Gray (NSW Police Service)

JUDGMENT: - 40 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 28 May 2003 Matter No IRC02/6372 Phillip Mahoney and Commissioner of Police Application under section 174 of the Police Act 1990 for a review of an order of the Commissioner of Police DECISION [2003] NSWIRComm 67

1 This is only the second occasion the Industrial Relations Commission ('the Commission') has been required to review, by way of arbitrated decision, an order made by the Commissioner of Police ('the Commissioner') under s173 of the Police Act 1990 ('the Act'). The first such decision was Laird v Commissioner of Police [2001] NSWIRComm 253; a decision of his Honour Grayson, DP published 22 October 2001. I shall refer to his Honour's decision later.

2 These proceedings were initiated by Sergeant Phillip Mahoney ('the applicant'), by way of an application, pursuant to s173 of the Act, filed on 12 November 2002. The order, subject to review, was made by Acting Superintendent Martin Wookey, Monaro Local Area Commander on 22 October 2002 (Mr Wookey is now a superintendent). The order of Supt Wookey was expressed as follows: That your increment from Sergeant level one, Step one to Level one, Step two; and your increment from Sergeant Level one, Step two to Level two, Step one; both be withdrawn.

3 It was agreed during the proceedings (Ex 13) that the financial impact of the loss of two increments was $3147.00 p.a. and that it would take two years for the applicant to return to his current level within the Sergeant's rank.

4 The s173 order arose from an investigation by the Police Service ('the Service'), under Pt 8A of the Act, of allegations of misconduct by the applicant. Shortly expressed, the allegations concerned the applicant forging his commander's signature (Supt Sanderson) on an approval form to attend a course at the Police Academy and his lying to other officers and his supervisors about the matter. The applicant subsequently admitted the misconduct, but believed it was as a result of psychological problems he was experiencing at the time.

5 Arising from the investigation, Supt Wookey took the following additional action: 1. the implementation of a Conduct Management Plan 2. the removal of the applicant from his Education Development Officer ('EDO') role and his placement on general duties.

6 It was accepted by the parties that the applicant's loss of two increments was 'reviewable action' under s173 of the Act and that the Conduct Management Plan was 'non-reviewable action.' However, it was argued by the applicant's counsel, Mr Docking, that the applicant's removal from his EDO role was also 'reviewable action,' within the meaning of the Act. Mr Reitano of counsel, for the Service, contended that such action was 'non-reviewable' as it was not a disciplinary transfer resulting in a loss of income. The action had more to do with protecting the public than with disciplining the applicant. I shall return to this issue later.

7 Pursuant to s 176 of the Act, the Commission convened private conferences with the parties on 18 December 2002 with a view to seeking a settlement of the applicant's claim. Following these conferences, I formed the view that 'all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful.' The Commission thereupon proceeded to issue directions for the arbitration of the claim.

8 The effect of the relevant provisions of the Act and the relationship between this Act and the Industrial Relations Act, 1996 was the subject of some debate during these proceedings. I shall return to these matters later.

10 The applicant commenced his police career in October 1989 after three years as a Transit Police Officer. In March 1993 he commenced working at Jindabyne Police Station as a First Class Constable. In February 1995 the applicant became an operative with the State Protection Support Unit ('SPSU') and two years later was appointed team leader.

11 During his period at Jindabyne the applicant was the subject of a number of charges relating to untruthfulness concerning the use of a police vehicle for private purposes. He was fined $150 over this incident. In cross examination, the applicant agreed there were other issues of misconduct around this time involving secondary employment and his failure to make a diary entry.

12 The applicant agreed that there had been a complaint against him from a female support person in which he was alleged to have raised his voice and shook his finger at her. While the complaint was proven, the applicant said this was an issue of customer service in which the female phone operator refused to give her name when answering a call. It was a requirement to do so.

13 In January 1996 the applicant was transferred to Queanbeyan Police Station, where he is currently to be stationed. In October 1996 the applicant became Patrol Education Development Officer. In late 1999 the applicant was promoted to Sergent and won the position of Education Development Officer. This role involved the education and development of 140 police officers and support staff.

14 During his police service the applicant has received 28 awards for policing including commendations for brave conduct. He has also carried out a number of other roles such as Community Accountability Conference Convenor, Incident and Emergency Management Instructor, Field-training Officer, Specialist Youth Officer and Certified DNA Forensic Procedure Tester. These roles required attendance at a number of training courses.

15 The applicant gave evidence of his involvement in a number of major incidents. He was in attendance at the Thredbo landslide disaster and was required to assist with distraught friends and relatives of the victims. One of the victims had been a close friend. He recalled the moans and screams for help from dying victims. He felt totally helpless and frustrated by being unable to recover them because of the dangers for rescue personnel on the site. The applicant deposed that he was extremely affected by the Thredbo disaster - suffering flashbacks and dreams of people trapped and dying. He said that while he helped organise counselling for his team, he didn't undertake counselling himself.

16 In July 2000 the applicant was involved in the search for four missing snowboarders. He said he lost confidence and doubted his abilities when the deceased snow boarders were eventually located in his initial search area.

17 In August 2000 the applicant attended with three other officers a house fire and murder scene at Barracks Flat Drive, Queanbeyan ('Barracks Flat Fire'). He was the senior officer in attendance. The applicant rescued two small children from the burning house. Their parents had been brutally murdered and another child had been shot in the head. The applicant said he was very affected and traumatised by this incident. There had been only one 'debrief' with the police psychologist. After the incident the applicant said he started having bad dreams - waking up imagining he was breathing smoke. The applicant deposed that he did not seek further assistance because he didn't want to appear weak or to let anyone down. Two of the other officers involved in this incident currently remain on long term sick leave suffering Post Traumatic Stress Disorder.

18 The applicant said he had experienced a number of personal traumas during the last few years. In December 1999, his 13 year marriage broke down and he was divorced in 2001. He has full custody of both children from the marriage.

19 Just prior to the misconduct, the applicant had found his partner's father dead in the grounds of the German Embassy. He tried to resuscitate him, but to no avail. He then had to break the news to his partner and her family.

20 In 2001 the applicant deposed that his daughter developed a severe eating disorder and his partner's son developed Attention Deficit Hyperactivity Disorder (ADHD). His own son was experiencing emotional problems at school. The applicant said he found it increasingly difficult to deal with personal trauma.

21 In March 2002, the applicant was interested in attending a training course in July at the Police Academy in Goulburn. After being pressed for written approval from the course convenor, the applicant filled in the application and forged his commander's signature. The applicant said he believed his commander would have signed the application, had he been available. He later conceded that he didn't know where Supt Sanderson was on that day.

22 Initially the applicant denied forging the signature. However, when questioned for a second time, he admitted he had done so and that he had lied at the initial interview. He apologised for his actions and conceded that it was a stupid thing to do. He said he felt trapped by the pressure he was under and wasn't thinking clearly. The applicant emphasised that he was very sorry for his actions and regretted the impact they had on himself, his friends, colleagues and family. He felt ashamed and embarrassed.

23 The applicant accepted that there were four allegations of untruthfulness against him involving Superintendent Sanderson, Inspector Eastman, Michelle Auld and Sergeant Kerrie Hartley from the Academy. He accepted these were very serious matters and acknowledged that the untruthfulness began around 12 March 2002 in the first email to Kerry Hartley at the Academy.

24 Five weeks later, when Michelle Auld had asked for written approval, the applicant deceived her when he said he had the approval and that the documentation would be sent.

25 The applicant was asked for an explanation as to why he didn't seek Supt Sanderson's approval. In oral evidence he denied that it was because he thought he and his friend, Matt Barry, would be denied approval to attend the course. He also denied that he had done so knowing the Superintendent was soon to retire and it wouldn't be found out. The applicant agreed that Supt Sanderson was approachable and he had no difficulty in contacting him about other matters.

26 The forged document was subsequently sent on 2 May 2002. The applicant accepted that his dishonesty was over an extended period involving a series of dishonest steps from 12 March to 2 May. He conceded his actions were premeditated (Tp.37). However in re examination the applicant said he didn't realise at the time there was a medical reason for his actions. The applicant said he had a problem of thought process at the time and could not make simple decisions.

27 In May 2002 an investigation was commenced into the applicant's misconduct. In June the applicant was transferred from his EDO duties to general duties while the investigation was conducted. Before transfer, the applicant trained another officer to carry out the EDO functions.

28 On 16 August 2002 the applicant received a notice under 173(5) of the Act reducing his rank from Sergeant to Senior Constable Level 6. He said he had prepared a response to the notice without legal advice or advice from the Police Association as he felt ashamed and disillusioned. In his response, the applicant suggested alternative punishments. However, he never intended that he would permanently be removed from his EDO role. He said he loved the EDO role as it gave him an incredible feeling of worth and job satisfaction.

29 The applicant said he wanted an opportunity, through a performance management plan under guidance, to get well and return to his EDO duties. If it was not appropriate for him to return after supervision and assessment, then it shouldn't happen. He believed that this should be the only form of punishment for his misconduct.

30 On 22 October 2002, the applicant was served the order now subject to review (see para 2). After receiving it, the applicant asked Supt Wookey about his EDO role, and was told it was to be advertised and filled. The applicant said he felt devastated by this and believed the EDO position should be filled temporarily until his own progress and suitability were assessed.

31 As to the other action Supt Wookey took under s173, he said it was necessary to put in place a Conduct Management Plan, having regard for the serious issues of integrity involved in the allegations and in order to ensure the applicant conducted himself appropriately.

32 The twelve month Conduct Management Plan involved monitoring, training and development, increased supervision, personal development and restriction of duties including relieving the applicant of his EDO duties.

33 Supt Wookey said that initially the applicant would not sign the Conduct Management Plan, as he wanted to consider it. Supt Wookey had agreed to this and it was signed on 14 November 2002.

34 As at 13 March 2003, the applicant said there had been no weekly meetings, no monitoring and no monthly feedback sessions in accordance with the Conduct Management Plan he signed on 14 November 2002 (Ex 2 Annex D). Nothing had happened with the Conduct Management Plan, except for some short training. As part of the Plan, the applicant had to give a presentation on ethics to 10 or 12 Highway Patrol Officers. He said he found this experience to be humiliating and degrading.

35 Supt Wookey conceded that he had not seen the monthly reports required by the Plan. To his knowledge they did not exist, nor had the officer responsible for the reports, Sgt Ahern, completed them. Supt Wookey said to his knowledge no quarterly reports had been made either.

36 As a result of a conflict of interest, Supt Wookey said he had handed over the Plan to the Complaints Management Team on 17 November. He did not know if an officer was placed in charge of it. The documents relevant to this transfer were not annexed to Supt Wookey's statement.

37 The applicant deposed that his professional relationship with Supt Wookey had not been good for some time. He said despite Supt Wookey's support for his role as EDO and his admissions to the Superintendent of his work and family pressures, the applicant now felt the Superintendent was trying to punish him.

38 Supt Wookey strongly denied the suggestion that he was 'out to get the applicant.' He said they had been friends for many years and he was close to the applicant's family. He had supported the applicant when his partner's father had died.

39 When the forgery issue arose, Supt Wookey said he spent considerable time at the applicant's house discussing the issue. He had encouraged him to put more information in his reply to the Internal Review Panel so as he could take this additional information to the Panel.

40 Supt Wookey said that the original penalty of demotion to Senior Constable was not implemented. Supt Wookey did not take this action because of the applicant's remorse and because he believed the applicant was "worth saving." He felt it was more likely the applicant could make a comeback if he was not demoted. Accordingly, his rank was not reduced. Supt Wookey added that he never had a performance issue with the applicant and believed the applicant had "a lot to offer the organisation."

41 In re examination, Supt Wookey confirmed that the action against the applicant proposed by the first Internal Review Panel was demotion to Senior Constable. He was not bound to accept this advice and didn't do so. He said it was his decision alone to make.

42 Under the Employee Assistance Program (EAP), Supt Wookey referred the applicant to a police psychologist, Antoinette Harmer in June 2002. Supt Wookey said he had not referred the applicant to an outside psychologist. Antoinette Harmer acted as a 'filter' on these matters. The applicant had six sessions with Ms Harmer, which he said he found very helpful. However, he felt that six sessions were insufficient, as he needed ongoing help. This was all the Police Service provided.

43 Supt Wookey described the EAP as a 'filter' for employees with a problem. The sessions are limited in order for the problem to be identified and for the person to be referred on to other assistance. Supt Wookey said he had some issues with this, because it was often difficult for Ms Harmer to cut people off when she has built up a good relationship with them. Ms Harmer was a person he held in high regard and with whom he was often in contact.

44 Ms Harmer's report, dated 12 September 2002, gave the following opinion and recommendations: It is my opinion that when Phil Mahoney inappropriate (sic) forged his commanders' signature and initially denied his actions, he showed a lack of good judgment and consequential thinking. 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, primarily the Thredbo incident and the Barracks Flat fire. Throughout this time Phil was not aware of the build up of stress and did not employ effective coping strategies or recognise the need for additional support to help him cope. I have assisted Phil to understand the impact of these series of stressors and provided relevant treatment to address symptomatic relief. In addition, we have discussed the important role of re-establishing effective coping strategies to deal better with future stressors. This includes recognition of stressors at an earlier stage and seeking appropriate supports. At this time Phil remains stressed as a result of difficulties sleeping, worry about the implications in regard to his work and has difficulty dealing with stressors in general because he feels so frustrated and disillusioned. Phil would benefit from ongoing support and treatment to address his chronic work-related stressors (including trauma) and regain his self-reported previously confident and 'stable' self. I am able to give further opinion in relation to this client in line with his consent.

Dr Thomas Clark 45 Dr Clark is a consultant forensic psychiatrist. Dr Clark has about 20 years experience in the police field, including giving evidence in criminal trials. Dr Clark holds the following qualifications: Registered qualifications in New South Wales. Diploma in Psychological Medicine (London). Masters Degree in the Neurophysiological Basis of Behaviour (London) Membership of the Royal College of Psychiatrists in England. Membership and Fellowship of the Royal Australian and New Zealand College of Psychiatrists. Certified Forensic Psychiatry course run by the New South Wales Institute of Psychiatry. Certification course through the University of Sydney as an approved PIRS examiner for the Motor Accident Authority.

46 Dr Clark saw the applicant on 21 February 2003. The Doctor had been provided with all the background to the matter, including all allegations and relevant history in a bundle of documents sent to him by the applicant's solicitor, Jones Staff and Co. (Ex 5). Dr Clark gave evidence that he had considered the documents in the bundle and discussed the matters with the applicant.

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 -

1. Whether the culmination of a series of distressing work and personal incidents could have impacted on Mr Mahoney's judgement and, if so, the extent of this impact This is highly likely. People with Obsessive-compulsive Personality Disorder in their anxiety often become impulsive. One sees this in accountants who gamble, careful professionals who are impulsively indiscreet and conscientious policemen who risk the rules for petty gain.

2. The effect of Mr Mahoney's failure to employ coping strategies on his conduct He has never been able to seek help. He belongs to the strong man macho element, where seeking help is regarded as a 'weakness.' He has changed however, the very mistake he made has led him to seek help and thus be able to regain self-confidence. It is the Workplace Principles of Care that effective counselling has to be made available, simply because the process is therapeutic. Thus, he now can avail himself and will recover.

3. Whether in my assessment, Mr Mahoney experienced a closed period of difficulty which presents as an aberration This is indeed the case, as outlined above (Extracted from Ex 5)

48 In oral evidence, Dr Clark described the applicant's state of mind at the time of the misconduct as "folly dilute" - a condition in which a person cannot make up their mind about simple things. Dr Clark said that in discipline type services, where care and conscientiousness is paramount, people can be vulnerable to cover up and stupid behaviour because of an excessive inability to make decisions.

49 Dr Clark described traumas in the course of life, such as a death of a relative as "expected" or "dependant" and that most people can handle these situations. However, independent traumas, such as those experienced by the applicant, can have a big psychological effect which might require medical treatment over a period of time. This treatment is a recognised field of therapy.

50 Dr Clark described the applicant's conduct as "petty" in the overall scheme of criminal conduct. Dr Clark didn't regard the period of untruthfulness as that important. He said what was important was that the applicant got into a state where he couldn't make decisions, faltered and panicked. Dr Clark said the applicant probably panicked when he forged the signature. He said someone in this state knows they will get caught. The whole period was part of the process from the original trauma of his experience arising from the Thredbo disaster and the Barracks Flats fire. To him it appeared the applicant was getting worse.

51 Supt Wookey rejected Dr Clark's opinion that forgery and dishonesty could be described as "petty" for a police officer. The conduct demonstrated a serious lack of integrity. Supt Wookey also rejected the Doctor's reference to the "macho orientated police service" and "tall poppy syndrome."

52 The applicant agreed that the issue of telling lies to Insp Eastham and his disciplinary history were not mentioned in Dr Clark's report. However, he had told the doctor of all the previous allegations against him. Dr Clark said he was aware of the applicant's misconduct in 1994, but didn't explore it in any detail. He regarded it as a minor disciplinary matter. He had not discussed the other incidents of misconduct with the applicant.

53 The applicant commenced seeing a Canberra based psychiatrist, Dr Knox, in April 2003. He agreed he could not return to EDO duties until he was medically fit to do so and had been cleared by his doctors. In oral evidence, the applicant deposed that he was now slowly improving after continued counselling from Dr Knox in Canberra. He was trying to understand his actions and rebuild his shattered life.

54 In oral evidence the applicant deposed that he was not provided with a number of documents annexed to Supt Wookey's affidavit until 24 April 2003. These were: a) A report from Supt Wookey requesting the convening of an Internal Review Panel (8 July 2002) b) A confidential report for Inspector Eastham from Gary O'Dell A/Chief Inspector, Police College 22 May 2002. c) Memo from Supt Sanderson to Inspector Eastham. d) Correspondence between Inspector Paul Eager and Inspector Eastham. e) Two page email from Inspector Eager to seven other senior offices dated 29 April 2002. f) Handwritten statements of SC Barry 22 May 2002. g) Memo to Inspector Eastham dated 21 May 2002 signed by the applicant. h) Document headed "Attribute rating". i) Complaints assessment form dated 16 May 2002 j) Recommendation of Supt Sanderson dated 17 May 2002. k) Receipts from Jo Anne Henry dated 17 July 2002 (Check)

55 It also emerged during the arbitration that the applicant had not been provided with the minutes of the Complaints Management Team of the 13 June, which disclosed that the applicant was to be rotated out of his EDO duties to general duties (Ex 10). He was also not provided with the minutes of the Internal Review Panel of 5 August 2002 (Ex 11) and 19 September 2002 (Ex 12).

56 Supt Wookey gave evidence that he saw no reason why the minutes of the Complaints Management Team and Internal Review Panel meetings were not provided to the applicant. However, he had not been asked to produce the documents.

57 Sergeant Matthew Barry and Sergeant David Cheatham provided statements in support of the applicant.

58 Sgt Barry joined the Police Force in January 1992. He became friends with the applicant and his family when they were both stationed at Queanbeyan. Sgt Barry described the applicant as a very competent team leader who was concerned with the welfare of officers in his team and compassionate towards offenders and victims.

59 Sgt Barry had acted in the EDO role and described the position as very challenging and demanding, particularly where mentoring and welfare issues are involved.

60 Sgt Barry had attended the Thredbo disaster with the applicant. He said that the applicant was part of the decision making process to close the site for safety reasons. The applicant had spent eight days at the site assisting the families of the deceased, including the family of a friend who had been killed in the disaster. Sgt Barry and the applicant had discussed the Thredbo disaster on a number of occasions.

61 Sgt Barry described the affect of the Barracks Flat fire on the applicant and the other officers involved. He had learnt about the incident from the COP's event and after talking to other officers, including the applicant. Sgt Barry also described another incident in 1999 where the applicant had been involved in a police chase. He had learnt about this incident from news reports.

62 Sgt Barry was aware of the applicant's personal circumstances. He said the applicant's separation from his wife was bitter and emotional. Sgt Barry said he and Supt Wookey visited the applicant soon after the incident involving the death of his partner's father. He said the applicant was visibly upset.

63 Sgt Barry referred to the incident involving the female support staff who had refused to answer the phone in an appropriate manner. Sgt Barry had observed her direct behaviour, but had not witnessed the incident. He described her as rude and a person who refused to comply with directions.

64 Sgt Barry believed that the applicant's misconduct was a result of cumulated distress and a "cry for help." When the applicant confided in Sgt Barry he had expressed remorse, embarrassment and disgust for what he had done. Sgt Barry had phoned Supt Wookey and informed him of the incident.

65 Having worked closely with the applicant for eight years, Sgt Barry described him as an effective, efficient and trustworthy officer with a high degree of integrity. He said the applicant was widely respected for his educational role and was a loyal, trustworthy and unselfish supervisor, mentor and mate. Sgt Barry believed this experience had been a valuable lesson for the applicant.

66 Sergeant David Cheatham has known the applicant since 1995 in Queanbeyan. Originally, the applicant had been one of six beat police officers under Sgt Cheatham's direction. He described the applicant as a tireless worker in the EDO role, who had taken it from a part time to full time role.

67 Sgt Cheatham worked with the applicant on many occasions and said he found him to be a person to be relied upon at all times. In 2000 both the applicant and Sgt Cheatham were relieving duty officers for the Monaro Local Area Command. These duties required sound tactical and strategic decisions. In this role Sgt Cheatham said the applicant was reliable, dependable and most competent. Later as Field Supervisor for the SPSU, the applicant displayed advanced skills in leadership, decision-making and tactics. Sgt Cheatham said the applicant was extremely competent and knowledgeable. His greatest attribute was to lead by example. He was well liked and respected and was a person of integrity, honesty and reliability. Sgt Cheatham said that the adverse findings against the applicant had done nothing to diminish his respect for him, or his opinion of the applicant's qualifications. He regarded the applicant as a valuable member of the Command.

68 After perusing the s173 order, it was Sgt Cheatham's view that the reason for the applicant's misconduct was a consequence of the anxiety and depression he was suffering from at the time. Sgt Cheatham knew the applicant had a number of personal, family and work related problems. He was aware of the Barracks Flat fire incident for which the applicant received a bravery medal.

69 In oral evidence, Sgt Cheatham said he did not believe it was a good idea for the applicant to be allocated to work with Sgt Ahern, as Supt Wookey had proposed. He believed they were adversaries and were likely to clash. He raised these concerns with the Superintendent. However, it ended up that the applicant was allocated to Sgt Ahern. In cross examination, Sgt Cheatham agreed there were only two senior officers to whom the applicant could have been allocated - Sgt Ahern or Sgt Ide. Sgt Cheatham agreed that there might be difficulties with Sgt Ide. Supt Wookey had expressed concern about allocating the applicant to Sgt Ide.

70 It was Supt Wookey's evidence that other officers were not senior enough and only Sgt Ahern and Sgt Ide were considered suitable. He had ruled Sgt Ide out because he considered it would create an "explosive" situation. In oral evidence, Supt Wookey said he had learnt from Sgt Ahern that the applicant had continued to act as a supervisor in a drug operation. Sgt Ahern had also told him the applicant was a disruptive influence. Supt Wookey said that the applicant should not have acted as tactical team leader in the drug operation. To do so was in breach of his express direction to Sgt Ahern.

71 At the time of the s173(5) order, Supt Wookey was the Acting Superintendent of the Monaro Local Area Command. He had been a member of the Police Force since 1982 and was recently promoted to Superintendent and Commander of Chifley Local Area Command.

72 Supt Wookey's statement dealt with the reasons for his decision to issue the applicant with the s173 order. Attached to Supt Wookey's statement were the documents referred to in para 55 and other documents, including the transcript of the applicant's interview with Insp Eastham on 20 May 2002, in which the applicant denied he had signed Supt Sanderson's name; transcript of interview with Insp Eastham and Supt Wookey on 31 May 2002 in which the applicant admitted he lied in the previous interview and had forged the Supt Sanderson's signature; and emails to the Police Academy indicating that the applicant had the necessary approval to attend the course.

73 Supt Wookey said the matters set out in the Conduct Management Plan were not regarded as a disciplinary transfer. The Plan was designed to assist the applicant re-establish his credibility and to assist the Force in being able to track and monitor his performance and conduct.

74 Supt Wookey said it was not appropriate to allow the applicant to perform EDO duties as they involve little or no supervision and would require the applicant to demonstrate high integrity standards. Supt Wookey did not consider the applicant to be an appropriate person to monitor and implement corruption prevention strategies or mentor other personnel.

75 Documents were shown to Supt Wookey in which the expression "rotated out of his EDO role," was used (Complaints Management Team meeting 12 June 2002). Supt Wookey didn't know at this time whether such action was 'reviewable' and he had sought advice about it. Nevertheless, it was an action which he believed was necessary. The advice was that he had the power to deploy staff within his command as appropriate.

76 Supt Wookey said he knew a disciplinary transfer was 'reviewable action' but in the applicant's case it wasn't a disciplinary transfer. The applicant had not moved house or left Queanbeyan Police Station. He was simply reassigned and given a different SAP number so as to provide him with greater supervision. Supt Wookey agreed that the EDO role has a specific SAP number.

77 In cross examination Supt Wookey said the term "restriction of duties" had been included on his draft statement by his legal advisors. Nevertheless, he regarded it as appropriate to use in his statement.

78 Mr Ball from Court and Legal Services had given advice in the meeting on 5 August meeting that a warning could be given. However, warnings were no longer issued (since early 2003). Supt Wookey agreed there was no reference to the term 'restricted duties' in the Internal Review minutes.

79 In reply to the applicant's statement, Supt Wookey had said in his statement that the applicant was not responsible for the education and development of support staff. In oral evidence the Superintendent later acknowledged he was wrong about this. He had accepted the applicant's evidence on this point without checking it with anybody.

80 Supt Wookey said he was not qualified to reject either Doctor Clark or Antoinette Harmer's opinion of the applicant's psychological state.

81 Supt Wookey gave evidence of a conversation he had with Antoinette Harmer prior to the issuance of the s173 order. He said Ms Harmer had been careful, for reasons of confidentiality, not to discuss the sessions she had with the applicant. Supt Wookey did not disclose to the applicant that he had the conversation and he made no notes it.

82 Supt Wookey agreed that, in most circumstances, details of a psychologist's opinion and assessment derived from consultations with a patient, couldn't be obtained without consent from the officer concerned.

83 In oral evidence, Supt Wookey said when he asked Ms Harmer whether the applicant's behaviour was a result of the incidents he had experienced and whether he was "worth saving," she had not answered "one way or the other." He gained the impression from her, that while the applicant's stress had influenced his behaviour, the misconduct was a conscious decision over a length of time in which the applicant made choices along the way. Despite this impression, Supt Wookey said that he did not get back to Ms Harmer to discuss the contents of her report.

84 The 19 August 2002 minutes of the Complaints Management Team disclosed that the applicant had raised the psychological problems he was having as a result of the Barracks Flat fire and his partner's father's death. Supt Wookey attended this meeting.

85 Mr Docking submitted that the removal of the applicant from his EDO duties was action correctly characterised as a disciplinary transfer and therefore constituted 'reviewable action.' He said this was so because: a) the action was not a transfer within the meaning of s67 of the Act. b) Schedule 1 includes a non-disciplinary transfer as an example of 'non reviewable action.' On the other hand, it follows that it was intended by the legislature that a disciplinary transfer was 'reviewable action.'

c) it is a well established principle that what cannot be done directly cannot be done indirectly; See Container Terminals Australia v Xeras (1991) 23 NSWLR 214. The Service cannot impose a disciplinary transfer under the guise of a Conduct Management Plan.

86 Mr Docking developed this submission by noting that the first time the term 'restriction of duties' was used was when the Services' legal advisors put it in Supt Wookey's draft statement. Earlier documents refer to the expression 'rotated out of his role as EDO to general duties.' It is plain, Mr Docking said, that there was no 'mixing up' of the recommended actions. The removal from EDO duties was distinct and separate from the Conduct Management Plan. It was incorrect and misleading to now characterise it as part of the Plan.

87 Mr Docking referred to the Minister's Second reading Speech on the Police Service Amendment (Complaints and Management Reform) Bill dated 21 October 1998. He quoted from the speech "Sanctions of reduction in rank or grade, reduction in seniority and deferment of an increment will be available for the more serious cases in which some form of personal penalty is required to act as a deterrent." Mr Docking said the applicant's conduct did not fall within this definition of serious. While the applicant's dishonesty was conceded, it was not at the high end of the 'criminal calendar.' There was no need for a deterrent.

88 Mr Docking put that Supt Wookey had accepted the integrity of the applicant. This was demonstrated by his acceptance of the applicant's evidence that he did supervise support staff, which Supt Wookey accepted without checking with anyone else. Further, the applicant gave a presentation on integrity to a group of Highway Patrol Officers.

89 Mr Docking argued that the penalty imposed on the applicant was too harsh and disproportionate to the gravity of the misconduct. See Laird v Commissioner of Police, Wells v Commissioner of Police, Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) 73 AR 231 and Electricity Commission of New South Wales v Crump (1993) 48 IR 296.

90 Mr Docking put that the applicant had to bear the brunt of the worst possible work stresses imaginable - the Thredbo disaster and the Barracks Flat fire. He also had to deal with other personal and family problems. Mr Docking referred to the applicant's show cause response in which he described himself on the brink of a mental breakdown. Scant regard was given to this applicant's health and welfare. See Wells v Commissioner of Police.

91 Mr Docking referred to the oral evidence of Supt Wookey concerning his impression of what Ms Harmer told him about the applicant's psychological state and what later emerged in her report. Mr Docking submitted that, whatever perception Supt Wookey had, it could not survive once the report was received. It followed that Ms Harmer's opinion was not given appropriate weight.

92 The Commission now had Dr Clark's evidence. This evidence was not challenged and was entirely consistent with Ms Harmer's opinion. See Kennedy v Cumnock No.1 Colliery Pty Ltd (2001) 104 IR 378. The other additional information included the statements of Sgt Cheatham and Sgt Barry. Such evidence of good character, should be taken into account. See Regina v Maxwell NSWCCA 23 December, 1998.

93 Mr Docking highlighted the applicant's past good conduct and police record including twenty-eight awards. His past record militated heavily in favour of the applicant.

94 Mr Docking put that the s173 order has not only impacted on the applicant financially, but he had been humiliated and embarrassed. Further, the warning to the applicant for the future was very clear.

95 Mr Docking criticised the failure of the Service to provide to the applicant all documents relied upon in making the s173 order, as required by s174(5) of the Act. There was a positive duty on the Service to do so. See Newton v Police Service (1999) 87 IR 66.

96 Mr Docking also criticised the failure of the Service to follow up and implement the Conduct Management Plan as evidenced by the admissions that no monthly or quarterly reports were prepared. He said the only person 'crying out' for a proper Conduct Management Plan, was the applicant.

97 Finally, Mr Docking submitted that the applicant's proven medical condition warrants the s173 order to be revoked without qualification. However, the applicant would accept an order that he be returned to his EDO duties subject to a medical clearance from either his treating psychiatrist or an independent psychiatrist.

98 Mr Reitano opened his submissions by putting that this case was not about the Service not providing documents; it was not about Supt Wookey or the failure of the Service to offer counselling or to conduct monthly reviews. The case was about the applicant's dishonesty, untruthfulness and fraud amounting to misconduct over a long period of time.

99 Mr Reitano put that, even if all of the action taken against the applicant was reviewable, the misconduct was of such seriousness that the Commission ought not intervene.

100 The action taken against the applicant was moderate, reasonable and fair in the circumstances. He was not a junior officer but an officer of senior rank.

101 Mr Reitano noted that the misconduct may have attracted a harsher penalty, including dismissal. However, Supt Wookey had considered all relevant factors, including the psychological report and the applicant's contrition. It had been "his call" to impose a lesser penalty than demotion to Senior Constable. Supt Wookey said the applicant was "worth saving."

102 Mr Reitano referred to each aspect of the action taken against the applicant. The withdrawal of increments has a punitive and financial impact. It is a punishment and acts as a deterrent. It is clearly 'reviewable action.'

103 Mr Reitano put that the Conduct Management Plan was not reviewable. It was designed to offer assistance to the officer to rehabilitate and improve. It has no financial effect. The removal of EDO duties was focused on protecting the public interest.

104 On reviewing the legislation, Mr Reitano submitted that the applicant's transfer to general duties involved a 'restriction of duties' and was a non disciplinary transfer. It was necessary action taken by Supt Wookey to ensure the efficient conduct of the Police Service. Mr Reitano rejected Mr Docking's submission concerning s67 of the Act. Supt Wookey received and acted upon advice that, as Commander, he was entitled to redeploy his officers as he saw fit.

105 Mr Reitano contended that the applicant would be eligible to reapply for his EDO role if the position became available, if he was fit to do so and if he had satisfactorily completed the Conduct Management Plan. Supt Wookey has made it clear that this was not a performance issue but an integrity issue. If the applicant could prove himself capable of supervising staff, then there was no reason why he could not reapply for an EDO position.

106 As to the medical advice, Mr Reitano accepted that the evidence had not been challenged. The medical evidence was accepted and taken into account by the Internal Review Panel and Supt Wookey. The evidence went to moderating the penalty, particularly where there was a previous example of the applicant's untruthfulness (1994). He said medical evidence must be balanced against the seriousness of the misconduct.

107 Mr Reitano submitted that all of the matters which Mr Docking highlighted as militating in the applicant's favour, had been taken into account and resulted in a lesser penalty.

108 As to the Commission's power under the Act, Mr Reitano said this was not an unfair dismissal case. The task here is more difficult and subjective. It would be open for the Commission to vary an order, or impose a harsher penalty on the applicant.

109 Mr Reitano responded to the criticism of the Service for not providing all documentation to the applicant. He said that this did not result in any unfairness or prejudice to the applicant. In any event, no one had asked for the documents.

110 Mr Docking reminded the Commission of the applicant's role in the Thredbo disaster and the Barracks Flat fire and the affect these incidents had on him. Supt Wookey had rejected Ms Harmer's opinion without having any medical qualifications or experience. He should not have done so. See Burrows v Commissioner of Police [2001] NSWIRComm 333. Supt Wookey knew the applicant had said he was on the verge of a mental breakdown.

111 Mr Docking rejected the suggestion that the applicant could reapply for his EDO duties. The position had been advertised and would be filled. The applicant would not get his position back.

112 Mr Docking said that this was not a case where weight can be given to the medical evidence. As it was not challenged the Court must accept it.

113 Pt 9 Div 1 of the Act confers jurisdiction on the Industrial Relations Commission to review certain disciplinary action taken against police officers by the Commissioner of Police for reasons of misconduct or unsatisfactory performance.

114 Two categories of disciplinary action are identified at s173 of the Act - 'reviewable action' and 'non reviewable action.' 'Reviewable action' is defined at s173(2): The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate.

115 In this case, the withdrawal of the applicant's two increments was accepted as 'reviewable action' for the purposes of the exercise of the Commission's jurisdiction under this division of the Act.

116 'Non reviewable action' is defined in Schedule 1 as: coaching mentoring training and development increased professional, administrative or educational supervision counselling reprimand warning retraining personal development performance enhancement agreements non-disciplinary transfer change of shift (but only if the change results in no financial loss and is imposed for a limited period and is subject to review) restricted duties recording of adverse findings

117 Plainly, the Commission cannot review the action listed in Schedule 1. In this case, as already mentioned, the requirement for the applicant to undertake a Conduct Management Plan is 'non reviewable action' and therefore not able to be reviewed by the Commission. However as I apprehend it, this case raises for the first time the question of whether action taken by the Commissioner to remove EDO duties from a police officer's responsibilities is 'reviewable action' for the purposes of Pt 9 Div 1 of the Act. For reasons I shall later expound upon, it is unnecessary for me to determine this question.

118 Section 175(2) of the Act places the onus on the applicant to establish that the Commissioner's order was either 'beyond power or is harsh, unreasonable or unjust.' The expression 'harsh, unreasonable or unjust' is also to be found at s181E of the Act; that section dealing with the Commission's power to review an order of the Commissioner of Police for the removal (dismissal) of a police officer. In my opinion, the expression 'harsh, unreasonable or unjust' can be defined in the same way where it appears in both sections of the Act, even though one section deals with disciplinary action and the other deals with dismissal.

119 Obviously the effect of whether an order is 'harsh, unreasonable or unjust' will likely be very different in circumstances of dismissal as distinct from disciplinary action. That merely demonstrates the point that the application of the principles of whether an order is 'harsh unreasonable or unjust' will very much depend on the facts and circumstances of a particular case.

120 There can be little doubt that the principles which have been established in unfair dismissal cases under Pt 6 ch 2 of the Industrial Relations Act, lay at the foundation of the tests to be applied under s181E and F of the Police Act. Indeed, there is particular reference to the unfair dismissal provisions of the Industrial Relations Act in s181G of the Police Act. As the Full Bench said in Newton v New South Wales Police Service: The effect of s181G of the Police Service Act is that the provisions of the Industrial Relations Act which ordinarily apply to applications brought under s84 apply to s181F review proceedings, subject to the there specified modifications.

121 The expression 'harsh, unreasonable and unjust' has been considered on numerous occasions in decisions of the Commission under Pt 6 ch 2 of the Industrial Relations Act, (See discussion in Jankowski v Excellent Management 2003 NSWIRComm 32 and Heape v General George Carpet 2002NSWIRComm 146, where I refer to the definition of 'harsh, unreasonable and unjust' citing Byrne & Anor v Australian Airlines (1995) 61 IR 32, Outboard World v Muir (1993) 51 IR 167 and Bankstown City Council v Paris (1999) 93 IR 209).

122 These same considerations, including those pertinent to issues of procedural fairness, have been applied in recent decisions of the Commission under the review provisions for dismissal under the Police Act (See Wells v Commissioner of Police (2000) 100 IR 106, Van Huisstede v Commissioner of Police (2000) 98 IR 57, Starr v Commissioner of Police [2001] NSWIRComm 226 and Cassel v Commissioner of Police 2003 IRComm 73). I note that these matters were extensively canvassed at Full Bench level in Newton v NSW Police Service.

123 Grayson DP considered the definition of 'harsh, unreasonable or unjust' in Laird v Commissioner of Police. His Honour said at paras 46 and 47. Further yet, the sanction if imposed would be harsh in its consequences for the personal and economic situation of the applicant or because it is disproportionate to the gravity of the misconduct (see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 which was applied by Peterson J in Wells v Commissioner of Police (2000) 100 IR 106. These are matters, which, in my opinion are well supported by the evidence of this applicant who was an impressive witness in his own cause as I am disposed.

124 It seems eminently sensible and consistent with authority for me to similarly apply the generally understood and well held principles of what constitutes 'harsh, unreasonable or unjust' to the facts and circumstances of this case.

125 When determining a claim under Pt 9 Div 1, "the Commission may take into account such matters as it considers relevant" (s175(3)) and must have regard to ss(4): (a) the interests of the applicant, and (b) the public interest (which is taken to include the fact that the Commissioner made the order pursuant to section 173).

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.

127 A further matter under section 174(5) of the Act arose in these proceedings. The section is expressed as follows: Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant, for inspection and copying, all of the documents and other material on which the Commissioner has relied, or to which the Commissioner has had regard, in deciding to make the order to which the application relates.

128 Mr Docking successfully established that a number of documents relevant to the Commissioner's order were only made available to the applicant four days before the arbitration in annexures to Supt Wookey's statement. Mr Docking's submissions on this point are well made. On its face, s174(5) of the Act was not complied with. However, in my opinion this deficiency was not decisive to a finding of whether the applicant was denied due and fair process. It is, however, one of the matters I consider relevant to the ultimate determination of this case.

129 Under s177 of the Act, the Commission is to determine an application: (a) by revoking the order, or (b) by revoking the order and making such other order as it considers appropriate, whether or not an order that the Commission is empowered to make under section 173, or (c) by upholding the order, or (d) by dismissing the application.

130 The Commission has arrived at its determination of this matter because I do not consider sufficient weight was given to Police Psychiatrist Antoinette Harmer's report of the psychological state of the applicant at the time of his misconduct. Ms Harmer conducted a number of sessions with the applicant. Her opinion was that: 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, primarily the Thredbo incident and the Barracks Flat fire. Throughout this time Phil was not aware of the build up of stress and did not employ effective coping strategies or recognise the need for additional support to help him cope.

131 It was Supt Wookey's evidence that he had a different impression of his earlier conversation with Ms Harmer before her report was written. However, he made no attempt to reconcile the said inconsistencies with his impression and what Ms Harmer ultimately concluded. While I accept that Supt Wookey only had Ms Harmer's opinion, his evidence was that he held her in high regard and valued her advice. If he had any doubts, it would seem reasonable for him to have checked with her.

132 I concur with Ms Harmer's opinion that it was 'reasonable to conclude' that the applicant's misconduct was due to "a series of extreme personally distressing incidents and the accumulation of stressful work related incidents." In my view, Ms Harmer's opinion left open for Supt Wookey to accept that the misconduct of the applicant had a psychological basis for which ongoing treatment and assessment was necessary.

133 Moreover, while a second opinion was not sought or asked for, it is apparent that Dr Clark's opinion in March 2003 is substantially in accord with what Ms Harmer had earlier found. In any event, there is no alternative medical evidence which contradicts either Dr Clark or Ms Harmer.

134 Supt Wookey was well aware of the applicant's view of why he had misconducted himself. The applicant's defence before the Complaints Management Team on 19 August 2002, was that he was suffering from psychological problems brought on, in part, by the Barrack's Flat fire and his partners fathers' death (See Ex 10). Supt Wookey had participated in this meeting.

135 The applicant described his situation more desperately in his show cause response of 9 September 2002. I believe a culmination of the above stresses over the past years have brought about the unfortunate events that have taken place both in my professional and personal life. I just couldn't cope; I felt a real need to get away, a desire to run from the system and the constant feeling of confusion. Subconsciously I was calling out for help, wanting others to recognise my need for help. I knew I needed help but felt to (sic) weak and insecure to ask, I had no one to turn too (sic), I was lost and confused. I was alone, there was no support network for me, and I had no faith in the system to ask for help. I believe I was on the brink of a mental break down; I refused to admit this to myself, as I was always the strong one, the one to stand and take the pressure. I thought by lying in the memos and signing the report I would get the relief from work I desperately needed, I could not be seen to be weak or venerable (sic) by my peers or management. I saw an opportunity to attend the Police College with my trusted friend Matt Barry; it became my whole focus, both at work and home. Matt was a man that would not judge me or think I was weak, getting away from reality, would be my release. The College provided an informal and comfortable setting away from work and the pressure associated with it. I was a desperate man, and had only one purpose, to escape from work and run away from the problems that were engulfing my life.

136 Accordingly, I do not believe the opinion of Ms Harmer was given sufficient weight by Supt Wookey. In the result, I am satisfied that the s173 order was unreasonable for the purposes of s174 of the Act and the applicant has discharged the onus he bears under s175(2) of the Act.

137 In so finding, I hasten to add that I do not accept the proposition that Supt Wookey bore any ill will towards the applicant. A number of the Superintendent's actions bear out this observation. It was the Superintendent who invited the applicant to provide more detail in his show cause response in order to bolster his case. More importantly, it was the Superintendent who made the ultimate decision, notwithstanding the recommendation of a harsher penalty and the contrary views of other senior officers during the investigation.

138 I turn now to the matters the Commission is required to consider under s175(4) of the Act. In considering the interests of the applicant, I am satisfied that he has demonstrated a deep sense of remorse and contrition for his actions. This was clearly evident from his written evidence and from my observations of him in the witness box. I am satisfied that his personal standing and reputation have suffered enough from this experience. In my judgement further penalty will not serve him or the Police Service any useful purpose.

139 It is trite to observe that the public expects its police officers to demonstrate a high degree of integrity and complete honesty. In this regard, I found the supporting evidence of the applicant's fellow officers particularly impressive and persuasive. In light of their evidence, and the applicant's meritorious conduct on many occasions, I am led to conclude that this is an officer in whom the public can have trust and pride. As I said earlier, the reasons for his misconduct are explainable by his psychological state.

140 That being so, I have no doubt that the public interest would not be compromised by revoking the Commissioner's order, or put in the alternative, it would be in the public interest for the order to be revoked (s175(4)(b)). I propose to do so.

141 In deciding this matter I have also taken into account a number of other matters I consider to be relevant (s175(4)(3)).

142 Firstly, the Conduct Management Plan was proposed in October 2002. Despite some initial misgivings, the applicant signed the Plan on 14 November 2002. The evidence makes plain that the applicant received no monthly or quarterly reports of his performance, as required by the Plan, from November 2002 to March 2003. Supt Wookey deposed that to his knowledge no monthly or quarterly reports were ever made. The only aspect of the Plan implemented was a rather crude self confessing session the applicant was required to give to a group of Highway Patrol Officers.

143 Supt Wookey took no action to ensure Sgt Ahern completed the monthly reports. Supt Wookey had handed over the Plan to the Complaints Management Team on 17 November. Nothing further seems to have occurred and no officer was appointed to oversee the Plan. The Plan was simply not put in place. As Ms Harmer said, the applicant needed additional support to help him cope. None was provided.

144 Secondly, the applicant was not informed that Supt Wookey had spoken to Ms Harmer and he was obviously not informed of what information passed between them. In my view, the failure to disclose to the applicant the nature of these discussions denied the applicant an opportunity to respond to what Supt Wookey later regarded as an inconsistency between what Ms Harmer had told him and what her report concluded.

145 Thirdly, it was acknowledged that all documents relied upon by the Service in taking the action it did, were not provided to the applicant as required by s174(5) of the Act. It was somewhat disingenuous to suggest that the documents were not provided because they were not asked for. In my view, s174(5) of the Act requires a positive action by the Service to make available all documents and material relied upon by the Service for an order under s173.

146 It seems to me that it would be inappropriate to have a police officer, undergoing a Conduct Management Plan, supervising junior officers or performing EDO duties. On the other hand, I see no reason why an officer, having successfully completed a Conduct Management Plan, should not be able to resume or undertake supervisory or EDO duties - assuming the officer is otherwise eligible to do so.

147 There is no doubt that the applicant's removal from his EDO duties was related to the disciplinary inquiry into the allegations concerning the forged signature. Equally, there can be no doubt that the applicant, on his own admission and on medical advice can not return to his EDO duties at the present time. There was no indication of when he might be fit to do so. I cannot speculate, when, or if, the applicant will be able to do so.

148 Given these circumstances, I would not be inclined to review this aspect of the Commissioner's action - even assuming I had the power to do so; that is assuming that the Commissioner's decision removing the applicant from his EDO duties was 'reviewable action' under s173 of the Act.

149 That being so, and notwithstanding the persuasiveness of Mr Docking's submissions, it is unnecessary for me to decide whether such action was 'reviewable action' for the purposes of the Act. I would add, however, one final comment.

150 Consistent with my earlier observations, the Commission would recommend that when, and if the applicant is considered suitable to resume his EDO duties then favourable consideration should be given for him to do so. I believe that the applicant's skills and experience would be wasted if he did not return to his education role as soon as practicable.

151 This opinion accords with the recommendation of Inspectors Eastham and Sanderson dated 4 June 2002 in which it was said that the applicant's "duties may be reviewed after this period"; that is after 12 months from being transferred from EDO to general duties (see C15 File Number 0200/000).

152 I appreciate Mr Docking's criticism that there will be no position for the applicant to return to, because the EDO role will have been filled. However, as Supt Wookey recognised, I believe the applicant has much to contribute to the education of younger and less experienced officers, particularly in light of his own police career including, might I say, this unfortunate experience. It is an opportunity that should not be squandered.

153 For the reasons expressed herein and pursuant to s177 of the Police Act 1990, the Commission revokes the order made against Sergeant Phillip Mahoney on 22 October 2002 by A/Supt Martin Wookey acting on behalf of the Commissioner of Police.

154 Application IRC02/6372 is determined and concluded accordingly.

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