Incident involving Constable Lodge (LMI 1103491)
27The incident that triggered the process leading to the Commissioner's decision to make the Order demoting the applicant involved further communications by the applicant with a serving police officer, junior in rank to the applicant, regarding the conduct of Constable Jessica Lodge. On this occasion, however, the communications were not made over police communication systems, but rather on the social media website, Facebook, outside normal work hours.
28On 16 June 2011, a security guard caught Constable Lodge urinating on steps at the War Memorial in Hyde Park late at night, off duty. At 4.45 pm on 17 June 2011 the Police Force issued a Media Release announcing that an off-duty female police officer (no name) would face court after committing an offensive act on the War Memorial. Newspaper articles reporting the incident were also published on 17 June 2011, but did not name the officer. The evidence included comments dated 17 June 2011 downloaded from Facebook regarding the incident. Constable Lodge was not named.
29Constable Lodge was charged under s 8(3) of the Summary Offences Act 1988 with "Commit offensive or indecent act in or on war memorial". On 21 July 2011, Constable Lodge pleaded guilty and was found guilty, but without proceeding to conviction and was directed to enter into a good behaviour bond.
30The applicant's evidence was that not long after he commenced his shift (at 6.00 am) on 17 June 2011 he was told by other police officers on duty that a police officer from their region had been charged after urinating on the War Memorial. He said he checked the news sites on his mobile phone to see if there was any report of the incident and found a report. No one mentioned the name of the person involved. At that time, the applicant said he did not know the identity of the officer.
31Shortly after, the applicant heard a news announcement on the radio that a female police officer had been charged after urinating on the War Memorial. She was not named, he said. At about midday, the applicant said more than one officer told him that the police officer charged was Constable Lodge. She was stationed at Redfern LAC. During the afternoon, the applicant said police officers reported for duty who had been on duty the night before. He said those already on duty had been talking about the charge against Constable Lodge and the police officers who reported for duty during the afternoon joined in the conversation. The applicant stated:
Before I left duty that evening the television in the supervisor's office was on showing the news. There were present in the supervisor's office about 10 officers, including those who were on dayshift and the oncoming nightshift. They included Inspector Roptell, other Sergeants, Senior Constables and myself. I do not remember whether there were any constables in the office. ... One or more of the persons present said, "You wouldn't pick Jess as someone to do that", "She will be lucky to keep her job". Other remarks to a similar effect were made about her. When I left the station to go home I noticed that there were constables watching the same news program on the television at the front office.
32The applicant said that after going home he logged on to his computer at about 7:30pm and noticed that a friend of his, Probationary Constable Rebecca Walsh, also stationed at Redfern LAC, was logged on to Facebook. He said he knew that she was not working on shift and that she could not access Facebook from a computer at work. The applicant said he had a private Facebook discussion with Constable Walsh "via a portal accessible only by the persons communicating with one another." The discussion centred on the War Memorial incident and the identity of who the offending officer might have been. Constable Lodge was not named in the discussion but the applicant later admitted that what he had said was sufficient for Constable Walsh to identify the offender as Constable Lodge.
33Constable Lodge returned to work on 19 June 2011. She ascertained that Constable Walsh had rung and messaged a number of people on 17 June and informed them of what had occurred in relation to the War Memorial incident. Constable Walsh informed Constable Lodge that the applicant had informed her (Constable Walsh) about the incident. On 25 July 2011, Constable Lodge submitted a report regarding the matter. Constable Lodge said she was distressed and upset and felt that the applicant and Constable Walsh had "exploited the situation and took it upon themselves to make me the centre of office gossip". She said "I am aware that my work colleagues would have found out eventually, but it was quite upsetting to be confronted with the gossip so quickly after the event".
34Inspector Jeff Dean investigated the matter. He sought a report from Probationary Constable Daniel Cole who stated that Constable Walsh had informed him at his home on Friday, 17 June 2011 about the Facebook chat between Constable Walsh and the applicant. Constable Walsh was asked about the chat and consequently downloaded a copy of it for the Investigator. The relevant excerpt is set out below. "He said" is a reference to the applicant. "She said/I said" is a reference to Constable Walsh:
He said, "Was there a bit of drink last night"
She Said, "Good effort, was a great night"
He said, "Anyone do something really stupid?"
I said, "No not really"
He said, "Oh ok"
I said, "Ha ha sorry no goss"
He said, "No goss...turn the news on..."
I said, "I cant be bothered to turn the news on just tell me instead"
He said, "Off duty female cop from the CMR pees on war memorial"
I said, "WTF, what kind of trash does that"
He said, "Think of who you were out with"
I said, "Huh"
He said, "I'm sure you can figure it out Bec"
I said, "No way, explain"
He said, "Yeah, its on the news website"
I said, "That doesn't have a name"
He said, "No it doesn't"
I said, "What more info do you have that your not saying"
He said, "Ha ha, well that ruins the guess who game"
I said, "I am not playing guess who cause I prob don't even know who your talking about"
He said, "Ah, that's no fun then. Though I suppose it is not funny. I'll leave it at that"
I said, "Ha ha, yeah the act itself not funny at all, that's just disgraceful and trashy. How could someone do that"
He said, "Don't know, if she's not suspended you can ask her at work"
I said, "Your not joking are you"
He said, "Nope"
I said, "No way"
He said, "No way what exactly"
He said, "I can't believe you don't know. It's a girl from your drink last night. Anyway I better drop it"
I said, "Well I'm not stupid. I know what your leading towards. I haven't heard anything since this convo and just don't want to believe it"
He said, "Oh, so you can guess who"
I said, "Well the guess part yeah considering there wasn't that many females out. But I find it very hard to believe"
He said, "Yeah, who were the girls"
I said, "Only me, Trudie, Parker and Lodge"
He said, "Well I think it wasn't you. And you can safely count out Trudie"
I said, "But what makes you think it was any of us"
He said, "I don't just think I know"
I said, "Did you work today"
He said, "You haven't realised yet that the cops is a massive rumour mill"
I said, "I'm aware of that. Just still find it hard to believe. So that would explain why both you and Sewelly asked me if anyone got into trouble"
He said, "Yep"
I said, "Are you 100% not lying to me cause that's just fucked"
He said, "I'm 100% not lying"
I said, "Fuck"
He said, "Yeah, I'd say they will be lucky to survive especially if it gathers momentum in the media"
I said, "That's so fucked"
I said, "So when did you start to find out"
He said, "Information started seeping through this arvo. Then some guess work. The guesswork confirmed"
I said, "How confirmed"
He said, "Those that knew. A 'recently confirmed Constable'. You can't do anything in the cops without everyone finding out"
I said, "Could be a recently confirmed Constable from another LAC"
He said, "Oh no, we knew it was Redfern"
I said, "How do you know it was Redfern"
He said, "Their Duty Officer called our Duty Officer. Reports go through to the region Commander and probably the Commish. That's a lot of assistants that find out stuff. A lot of gossip around coffee cups. Then people who know people"
I said, "Oh okay, just curious. What happens now"
He said, "I closed the article, but its like the 5th of August or something that she goes to court"
35The applicant was the subject of a Directed Police Complaint Interview on 5 September 2011 regarding the Facebook chat with Constable Walsh. On 23 November 2011, the applicant received the following copies of various documents under cover of a three-page document giving notice of possible further action under the Police Act and providing the opportunity to respond (the applicant was not provided with the papers in respect of LMI 1102728 (Constable Shaun Cole incident), purportedly so as to protect the identity of the complainant and the source of information):
(1) With respect to LMI 1005649 (use of Police Chat System):
Evidence based in the investigator's report 9 February 2011;
Record of police complaint interview Sergeant McDiarmid 4 February 2011;
Record of use of the chat communication system.
(2) With respect to LMI 1103491 (Lodge Incident):
Resolution outcome report 7 September 2011;
Record of police complaint interview Sergeant McDiarmid 5 September 2011;
Record of police complaint interview Probationary Constable Walsh 5 September 2011;
Report of Constable Daniel Cole 22 August 2011.
36On 24 November 2011, the applicant sent an email to the Commander's Executive Officer, Ms Lee-Anne Ferguson, with a copy to Superintendent Freudenstein, regarding the absence of papers concerning Constable Shaun Cole's complaint. He was advised by return email that only LMI 1005649 and LMI 1103491 were being referred to the Internal Review Panel ("IRP").
37Sergeant McDiarmid responded to the material on 14 December 2011. The response included several character references from police officers and other persons.
38It was not until three months later, on 13 March 2012, that the applicant met with A/Superintendent McCusker and received notification of an Interim Management Plan in respect of LMI 1103491. The applicant's evidence regarding the conversation was in the following terms:
I had the following conversation with A/Superintendent Leanne McCusker:
McCusker:"The IRP [Internal Review Panel] met on 8 March and decided on your punishment. You are going to be demoted to Senior Constable but it will not be taking effect until after any appeal processes take place".
"There will be an Interim Management Plan to put you back on the truck (by which I understood her to mean I was to be part of a general duties crew manning a police van) and you will not be undertaking any supervisor duties at all".
Me:"The earlier management plan is finished?"
McCusker:"Yes it has finished and we are going onto this one now".
39The applicant said that later in the day on 13 March he was handed a copy of the Interim Management Plan stating that it commenced that day. Amongst other things, the Interim Management Plan stated that the complaint, the subject of the investigation had "been sustained".
40It was the applicant's evidence that when the A/Superintendent gave him the Interim Management Plan he said:
The total action is harsh, particularly the Interim Management Plan, I am being punished for gossiping by being made the subject of everyone's gossip. Stopping me supervising is not the goal of the IRP's actions as there is no restrictions on me supervising, just the demotion. A Senior Constable can still supervise.
41On 30 March 2012, the applicant received a further notice from A/Superintendent McCusker stating that the Redfern LAC Commander was considering making a reviewable order against him pursuant to section 173(5) of the Police Act "referable to ... LMI 1103491". The notice referred to "1st Complaint - LMI 1005649". Under that heading two issues were identified, namely, "Inappropriate use of the NSW Police Email system" and "Breach of the NSW Police Force Use of Resources Policy". The second complaint referred to was LMI 1102728. The issue raised under that heading was, of course, the discussion in the muster room concerning Constable Shaun Cole. The third complaint concerned LMI 1103491: "Breach of Code of Conduct and Ethics".
42In a section on the notice headed "Consideration" it was stated:
Consideration
I am deeply concerned about your continuing behaviour and lack of accountability and acknowledgment of your own actions. This concern has not lessened having read your Response dated 14 December 2011.
I note in relation to LMI 1005649 that to the best of your knowledge "there were never any official instructions or policy on who could use the chat system or how it was monitored." Your ignorance of the Electronic Messaging Policy which encompasses instant messaging such as 'chat' does not absolve you of your misconduct. Your continued assertion that the chats were between yourself and close friends does not make the content any less offensive, inappropriate or against policy. Your belief that the investigation was based on opinion and your answers were ignored is mistaken.
I note that you have chosen to systematically respond to each point raised in the Investigator's Report completed by Inspector Fownes. These include your comments on CMF, Detectives taking bribes, political comments, and the sexually explicit and inappropriate comments. Your use and content of the instant messaging system contravened various NSW Police policies. Your justifications do not change this.
In fact, your reasoning shows a lack of understanding of your core role as a supervisor. For example, in your response to the failure to attend a priority one incident. You say you are loading up CAD to check on the job. The NSW Police Handbook states that a priority one incident is one that requires an officer to respond immediately as the matter is life threatening and the actual danger is still present. You chose not to respond thus setting a poor example for the other police on duty. You say that one car crew reluctantly attended but did so at your request. Your actions weaken your assertion that you are a committed supervisor.
Another example which is concerning, is your assertion that your comment, "and I already know what aboriginals are and what ACLOS do (fuck all)" has a legitimate basis. The comment is highly offensive and had the potential to bring the NSW Police Force into disrepute. That you try to justify the comment by referring to my own remarks that the ACLO's need to be supervised is staggering and reveals a distinct lack of maturity and understanding on your behalf. Not only are you being disrespectful to your colleagues, you appear not to respect the community you are serving and you see no issue with conveying these beliefs to a junior officer. These are not the characteristics that are expected from a sergeant of police, particularly one attached to the Redfern Local Area Command.
In relation to LMI 1103491 you provide further explanations or excuses about your behaviour. You fail to acknowledge that you have done anything wrong. What concerns me further, are your repeated attempts to distance yourself from any wrong doing. During the initial interview into this matter it appears you were less than fully frank about your knowledge of the incident until presented with a transcript of the conversation. At this point you agree that the facebook chat made it quite apparent that the incident involved Constable Lodge. In your Response you again try to distance yourself from this admission stating, "It was clear that there was a choice of two different junior Constables but nothing I said would have directed Probationary Constable Walsh to assume (it) was Constable Lodge over Constable Parker". This reversal of your answers has potentially undermined your integrity.
I note that you disagree with Inspector Deans comment about your supervisory competence. You state, "After reading the report I do not see how this complaint reflects on my supervisory competence. I acknowledge that Probationary Constable Walsh is a junior member of the Police Force, however, I was talking to her as a friend, out of work, on a private chat system not owned by the New South Wales Police Force. She is a mature officer and capable or (sic) handling herself. I regret ever having the conversation with her, and I regret placing the trust I did in her. I had no idea that she would contact, and reading between the lines, harass, Probationary Constable Daniel Cole about the incident, nor did I have any idea that she would tell that I told her who it was."
This last comment demonstrates your failure to understand the inappropriateness of your actions and their ramifications. If you did not pass on the information there would not have been the subsequent conversations amongst the junior officers that led to the investigation. You fail to contemplate that as a role model to junior staff your actions provide a template of expected behaviour. Your discussion on facebook provided a poor illustration of professionalism. Your belief that it was a private conversation does not remove the fact that it should never have occurred.
It appears that you do not hold yourself accountable to the standards of behaviour that is expected by the NSW Police Force. Rather, it depends on how you perceive the circumstances you find yourself in, as to how you believe you should act. This attitude has prevailed despite being strongly advised by not only myself on more than one occasion, but also by the Region Commander, that the NSW Police Force expects police officers to abide by the Code of Conduct and Ethics and the Statement of Values.
You have continued to display poor decision making ability as to how you conduct yourself as a Sergeant. You have repeatedly failed to accept that you have let yourself and your colleagues down by continuing to behave in a manner that does not comply with the NSW Police Force Code of Conduct and Ethics and the Statement of Values. Despite management action you have failed to grasp the importance of a supervisor's professional relationship with other police. Nor does it appear you understand what a supervisory position means within a range of contexts, in particular when you deal with junior staff members both on and off duty. You have been given ample opportunity and support to understand and fulfil your responsibilities.
In all the circumstances, I consider there are grounds upon which it could be concluded that your conduct in relation to these matters has fallen well below the standard expected by the community and the NSW Police Force of a sworn officer.
I hereby give you notice that I am considering making a reviewable order against you in the following terms:
That, pursuant to subsection 173(2) of the Police Act 1990, your increment be reduced to; Senior Constable Level 6.
You have seven (7) days from the date of service of this notice to indicate to me that you intend to make written submissions. You have twenty-one (21) days from the date of service of your notice of intention to respond, to forward that written submission to me.
Any such submission should be delivered to me personally at the Redfern Local Area Command.
I will then take into account your written submissions (if any) and make a final determination concerning the making of the subject section 173 order. Should I determine that such an order is to be made, you will be served with a copy of the order formalising that decision.
43The applicant said in his evidence that when he was handed the notice the applicant looked through it and then the following conversation occurred:
Me:"This notice does involve the complaint from Shaun Cole. I was told that it didn't.
McCusker:"Who told you that?"
Me:"Mr Freudenstein and I have an email about it from Lee-Anne [Ferguson]"
McCusker:"Can you forward it to me? I'll follow it up and get back to you by the end of the day"
Me:"Yes. I will forward it to you straight away.
If I accepted the demotion in theory I could walk downstairs and supervise.
The Interim Management Plan says that I cannot supervise at all but the order being made against me will only demote me not prevent me from supervising"
McCusker:"Even though 'no supervision' is not part of the action being taken against you, no commander will believe you are suitable to relieve due to the action being taken against you for at least the short term."
Me:"What is the short term?"
McCusker:"There is no time limit"
Me:"The Interim Management Plan is above and beyond the actual scope of what is intended in the order and unfair.
If I do accept the demotion, there is no chance that I will get the rank of Sergeant again"
McCusker:"You can reapply"
Me:"Yes I can. I could do the test, I could do the interview, but when it came to the probity check they wouldn't give it to me"
44The applicant formally responded to the notice under s 173(5) of the Police Act on 16 April 2012. On 14 May, Superintendent Freudenstein met with the applicant and served him with a copy of an order under s 173(2) of the Police Act. The Order referred to the circumstances in LMI 1103491. The notice stated that it appeared there were grounds on which it could be concluded that the applicant's conduct was in breach of the Police Act and relevant NSW Police Force policies and procedures, namely s 7(a), (c) and (h) of the Police Act, items 1 and 4 of the NSW Police Force Code of Conduct and Ethics and the excellence, accountability and leadership obligations in the Statement of Values. Under the headings "Consideration" and "Order" the notice stated:
Consideration
In the circumstances, I am satisfied that your misconduct has fallen below that which is expected by the community and the NSW Police Force of a sworn officer. In particular, I am concerned about your continuing behaviour that demonstrates a lack of leadership and understanding of the role as sergeant.
In your Response you state that you have learnt from the two earlier complaints and the management action that was subsequently taken. In regards to LMI1005649 you say that you have disabled the instant chat system and do not intend to use it in the future. There is no issue with you using the system; it was the manner in which you used it. As a supervisor you should have realised that your conduct was not what was expected from you and breached the NSW Police Force Email and Internet Policy, NSW Police Statement of Values, Code of Conduct and Ethics and other NSW Police Force Policies.
In regards to LMI 1102728 you say that you have not discussed any matters involving other members of staff since receiving advice and guidance. As a leader you are expected to use appropriate interpersonal styles of communication to inspire and guide other officers. Becoming involved in an open conversation where derogatory remarks are made about a fellow officer is not the example that the NSW Police Forces (sic) wants any officer to create and reflects poorly on your understanding of your role and position.
The current complaint while in yet another context, still directly relates to the other two complaint issues. It again demonstrates your lack of understanding of your role and how your actions, whether on or off duty undermine your ability to be a supervisor. It is not the chat itself, but the inappropriateness of what you say and who you are saying it to. In all three complaints, it has been your actions that have let you down. You have not conducted yourself like a supervisor. You have not realised what you were doing was wrong and while you regret what has occurred, it still appears from your continuing conduct and parts of your Response that you have not yet grasped why your conduct was not acceptable. You have not shown the qualities that are expected of a sergeant of police, despite being given ample notice and support to understand and fulfil your responsibilities.
I have taken into account that you now acknowledge that you should not have had the conversation with Probationary Constable Walsh. You say that you have now come to realise the importance of a supervisor's professional relationship with other police. I further acknowledge that a number of your colleagues have written character references in your support.
Order
In all the circumstances, I have formed the view that your misconduct has been shown to be improper and that you should be subject to the action proposed in the Notice.
I therefore order the following action:
That pursuant to section 173(2) of the Police Act 1990, you be subject to a reduction in rank to Senior Constable Level 6.
You have the right to seek a review of this Order by the Industrial Relations Commission on the grounds that the Order is beyond power, or is harsh, unreasonable or unjust. You have twenty-one (21) days to lodge your application for review from the date of service of this Order. There is also provision for administrative review by the Supreme Court. You may seek independent legal advice in relation to your rights and obligations.
This Order takes effect twenty-one (21) days from the date of service upon you of this Order or, where an application for review is filed, when the application is finally determined.
45In his affidavit, the applicant deposed as to the effect of the order on him:
Most officers with whom I have dealings at the Redfern LAC have let me know that they are aware of the section 173(2) Order against me and the circumstances in which it was made.
The circumstances I have experienced, referred to above, have caused me distress and anxiety which have manifested themselves in various ways including:-
(a) Although I have not been absent through sickness, I have felt reluctant to go to work and have lost enthusiasm for my work; prior to the private Facebook Chat Disciplinary Investigation I enjoyed my work and gained satisfaction from it;
(b) I have had difficulty sleeping and have had nightmares, neither of which I suffered from before the Investigation;
(c) I now regularly suffer from lethargy which I did not previously experience;
(d) My days off have been spoiled because of my anxiety about what I was to experience when I returned to work.
(e) Each day I attend work I am apprehensive that I am to be summoned to the Superintendent's office about some alleged infraction even though objectively I believe that I have no reason to think that;
(f) The lengthy delay in processing the complaint against me has added to and extended stress and anxiety I have suffered;
(g) In the first few weeks after the Order was made, I noticed that I was quick to anger, suffered from irritability and lacked patience.
(h) I have become particularly sensitive to, and distressed by, incidents and memories with which I had previously been able to cope. For example, I am now more distressed than I previously was when dealing with people living in squalor or found dead in the course of my duties. In addition, recollection of sad events in my past life distresses me in a way that I did not previously experience;
(i) I have felt isolated at work. I was not now a supervisor nor a member of the team. The Interim Management Plan requires me not to gossip and that has made it difficult for me to communicate with other Police Officers when we are working together;
(j) I have avoided participation in social activities and have been pre-occupied about what has happened to me. When I have engaged in social interaction I have been conscious of a tendency to monopolise the discussion by talking about what has happened to me and failing to allow others to interact with me by talking about things that interest them;
(k) I am concerned about my financial position (including my possible loss of pay because of my demotion and the legal expenses that I am incurring in relation to these proceedings) and its effect on my ability to maintain my mortgage payments and other recurring expenses;
(l) I am uncertain about the domestic plans that my partner and I have made which is also causing her distress;
(m) I have been humiliated by having to seek references from friends and colleagues ... to respond to the Investigator's Report referred to above in this affidavit.
46In his affidavit, Superintendent Freudenstein (who was not required for cross-examination) deposed to the following:
In the order I referred to my belief that Sergeant McDiarmid did not appear to realise that his conduct was wrong and did not appear to understand why the Commissioner of Police would consider that his conduct was not acceptable. Had Sergeant McDiarmid demonstrated that he realised that what he had done was wrong and not acceptable, then consideration would have been given to taking the same action but for a period of 12 months only, with the intention that he would return to Sergeant Level 3 on satisfactory completion of the Conduct Management Plan extended for 12 months.
...
When I stated in the order that Sergeant McDiarmid had not conducted himself like a supervisor I did so taking into consideration the rank, age and position of those Sergeant McDiarmid communicated with on the chat system, and Facebook. Generally they were Probationary Constables, Constables, or Senior Constables, all bar one being female.
A sergeant supervises a team of perhaps 10 or dozen officers and is responsible for their performance management plans and also the supervision of their discipline. A sergeant is generally unmonitored in their day to day activities, and a high standard is expected of them in the way they perform their duties as seen by their team members. It would be difficult for a sergeant to discipline a junior officer for matters of poor conduct in breach of policy if, in their day to day engagements with those officers, they did not have a reputation of meeting those standards themselves.
A sergeant needs to have the credibility to take on their team members if there is a need to rein in their conduct or behaviour. It is a necessary aspect of support for the chain of command within the NSW Police Force that sergeants have the respect of those they supervise.
If junior police officers were sexually harassed or have malicious rumours spread about them, in particular females, they should be able to seek advice and some surety that action would be taken in reporting their issues to a supervisor. I do not believe an officer, particularly a junior female officer, would report sexual harassment or malicious rumours to Sergeant McDiarmid if they knew or heard about what he says about females and how he participated in a guessing game with a junior female officer about another junior female police officer who had committed an offence.
The NSW Police Force is comprised of members of the NSW Police Force such as Constables, Senior Constables, Sergeants, Senior Sergeants, Inspectors, Chief Inspectors, Superintendents, Chief Superintendents, Assistant Commissioners, Deputy Commissioners through to the Commissioner.
The NSW Police Force is structured by rank. Officers are ranked as follows, in ascending order, Probationary Constable, Constable, Senior Constable, Sergeant, Senior Sergeant, Inspector, Chief Inspector, Superintendent and Chief Superintendent.
The NSW Police Force is historically based on a paramilitary system, which is based on subordinates being required to follow directions given by senior officers. There is a chain of command in that officers are to comply with all lawful orders of their superior officers. The chain of command sets in place a workable system whereby officers know who they must obey when directions are issued. Without such a chain of command, the NSW Police Force would not be an effective organisation, particularly in times of crisis and during operational matters where the chain of command is important to the efficient and timely performance of duties.
In my view the conduct of Sergeant McDiarmid the subject of the Order under section 173 of the Police Act 1990, related to his professional relationship with other police and was conduct that could undermine the chain of command.