Nath v Commissioner of Police

Nath v Commissioner of Police - [2024] NSWIRComm 1041 - NSWIRComm 2023 case summary — Zoe

[5]

Legal principles applying on review

Part 9 of the Police Act is titled "Management of conduct within NSW Police Force". For the purposes of these proceedings, the Part relevantly includes the following provisions: Division 1B Summary removal of police officers in whom Commissioner does not have confidence 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. … (3) Before making an order under this section, the Commissioner - (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. … Division 1C Review of Commissioner's decision under Division 1B 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. … 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows - (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to - (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).
The terms of Pt 9 Divs 1B and 1C of the Police Act were the subject of consideration in Commissioner of Police, New South Wales Police Force v Zisopoulos (2020) 299 IR 314; [2020] NSWCA 236 ("Zisopoulos"). In that case, Bell P, as his Honour then was and with whom Macfarlan JA agreed, observed: "82. The central issue will always be whether or not the decision to remove the officer was 'harsh, unreasonable or unjust'. These concepts overlap but are not synonymous. The three criteria may be established in various ways or by different means. And they are alternatives. So much is illustrated in the following well known passage taken from the joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465; [1995] HCA 24: 'It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.' 83. The nuanced nature of a s 181E review based upon the statutory criteria of harsh, unreasonable or unjust is one that the legislature has entrusted to a specialist tribunal in the form of the IRC. The IRC's review is not 'de novo' but, on the other hand, as Mr Kirk accepted in oral argument, is closer to a merits review than judicial review. Assessment as to whether a particular decision of the Police Commissioner engages the statutory criteria necessarily must have regard to the basis and reasoning employed by the Police Commissioner in any given case. 84. Depending upon the basis of the Police Commissioner's decision, as the Full Bench said at [27] citing Starr, the burden of establishing that a decision to remove a police officer is harsh, unreasonable or unjust may be satisfied in a given case by casting sufficient doubt on the Police Commissioner's reasoning process so as to justify the IRC's intervention. But it is important always to remember that 'sufficient doubt' is not 'any doubt', and the raising of a doubt, sufficient or otherwise, does not in any way alter or affect the legal burden which lies on the removed police officer to demonstrate that his or her removal was harsh, unreasonable or unjust. So also, the mere 'going into evidence' by, or the raising of an alternative hypothesis on behalf of, a removed police officer will not per se establish that a removal was harsh, unreasonable or unjust nor will it place an evidentiary or tactical burden on the Police Commissioner to justify his original decision to remove the officer. Whether or not it does will be a function of the basis of the Police Commissioner's original decision and of the strength of the evidence led by the removed officer and or the credibility of the alternative hypothesis. 85. If what the Full Bench in the present case referred to as 'sufficient doubt' is raised by the removed officer, an evidentiary or tactical burden may arise which will require the Police Commissioner to answer the doubt in order to defeat the conclusion which may have become open in light of evidence before the IRC, namely that the impugned removal decision was harsh, unreasonable or unjust."
I have also had regard to the observations of Wright J in Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 1429 at [125]-[128]. I will not reproduce those passages.
As Bell P observed in Zisopoulos at [83], the Commission's review "is not 'de novo' but…is closer to a merits review than judicial review". This is reflected in the observations of the Full Bench of the Commission in Court Session in Bradley George Hosemans v Commissioner of Police (2004) 138 IR 159; [2004] NSWIRComm 253 at [134] that "[t]he correct approach is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted. Further, that review process is to be undertaken in accordance with the provisions of s181F(1) of the Police Act…"
The Commission is not remaking the Police Commissioner's decision to make the Order, but is conducting a fresh and independent review to determine if the Order was beyond power or harsh, unreasonable or unjust: see Walsh v Commissioner of Police; Cook v Commissioner of Police [2023] NSWIRComm 1090 at [37] (observing that Commissioner Muir's observation was made in the context of a review under s 174 of the Police Act).
As to the onus borne by an applicant in proceedings under s 181E, in Tredinnick v Commissioner of Police [2016] NSWIRComm 14, the Full Bench observed: "55. …That burden falls to an applicant for review under s 181E although a closer alignment with the provisions of Divs 1B and 1C of the Act would have that conclusion expressed thus: the burden falling upon an applicant is to establish the removal was harsh, unreasonable or unjust. In the case of an applicant contending that a removal was unjust because the applicant did not engage in some or any of the 'misconduct' or infringements to the officer's duties and responsibilities (of the kind referred to under s 181D(1)), the burden falls upon the officer to prove that he is not guilty of misconduct (or 'conduct') in that respect. This may mean the provision of proof there is no basis in fact from the allegations or that the allegations involve a misunderstanding or a misapprehension of the facts."
The Full Bench went on to observe (at [61]) that an applicant "may satisfy the burden imposed by s 181F(2) if he or she satisfies the Commission that the reasons for removal provided by the respondent are flawed or defective either in a procedural or substantive sense".

[7]

Allegation 1

Allegation 1 is said to have arisen from verbal exchanges between Mr Nath on the one hand, and Mr Kumar and Ms Brightwell on the other, 18 June 2021 when Mr Nath attended premises of Amtek Pty Ltd ("Amtek") to collect a police vehicle. It is significant that the part of the premises on which the exchanges occurred was a compound under the control of Fleet Services, which is part of the Financial and Business Services Command of the NSW Police Force. To distinguish that part of the premises from the remainder of the site, and for convenience, I will refer to this as "the Fleet Services compound".
The Statement of Reasons referred to information that had been obtained from (then) Acting Sergeant Corey Lucaci, that on 17 June 2021 he requested that Mr Nath attend the Amtek premises the following day to collect a vehicle; that he informed Mr Nath to "go to the Police section" at the premises; and that Mr Nath told him that he had been there previously.
The Statement of Reasons also referred to, and traversed at length, statements that had been obtained from Mr Kumar and Ms Brightwell. Without reproducing the summary of those statements set out in the Statement of Reasons, the evidence described in the Statement of Reasons includes the following: 1. Mr Nath became agitated and was rude to Mr Kumar when he was asked to sign into the Fleet Services compound using a QR code and, when that was not possible, to provide his name and mobile number, in accordance with the site's COVID-19 protocols. Mr Nath refused to provide his mobile number to Mr Kumar. 2. Mr Kumar called Ms Brightwell to assist. 3. When Ms Brightwell attended, she introduced herself to Mr Nath as the Director of Fleet Services. She informed Mr Nath that he would need to sign in before being granted entry to the building. 4. Mr Nath unsuccessfully attempted to sign in with his mobile phone using the site's QR code, at which time he appeared to Ms Brightwell to be "very reluctant, frustrated and agitated". 5. Ms Brightwell had a verbal exchange with Mr Nath in which she requested that he provide Mr Kumar with his mobile number so that a manual check-in could be completed. Mr Nath refused, saying words to the effect: "I do not need to give you my mobile number, I am a police officer in full uniform and I do not give my personal mobile number to anyone, you have no power to request my name and phone number, I am a police officer, so I won't be doing that." 1. Ms Brightwell described Mr Nath as "dismissive and arrogant" during the exchange. She described her perceptions that Mr Nath was attempting to intimidate both her and Mr Kumar, and that he was belittling to Mr Kumar. Both Ms Brightwell and Mr Kumar described Mr Nath as talking over them. 2. At one point, Mr Nath appeared to comprehend that he was on a NSW Police Force site, after which his "attitude had changed completely from the dismissive demeanour [he] had displayed before".
The Statement of Reasons also summarised the information provided by Mr Nath in a departmental interview on 10 August 2021 and in the Response. That summary included the following: 1. The conversation described by (then) Acting Sergeant Lucaci did not happen. 2. When he arrived at the Amtek premises, Mr Nath presented to reception, where he provided his contact details in accordance with Amtek's COVID-19 requirements, before being directed to the Fleet Services compound where he met Mr Kumar. 3. Mr Nath had not previously attended that site. He had been to other premises operated by Amtek, and in fact he and his colleague, Senior Constable Jorgensen, had first attended that location on 18 June 2021 before being redirected to the Amtek premises. He was not aware that the Amtek premises included the Fleet Services compound; he understood that it was entirely operated by Amtek. 4. Mr Nath found it "strange" that Mr Kumar would ask him to provide his details, as he had "already done a check-in at the other office". 5. Mr Nath described himself as being "very polite" when speaking with Mr Kumar. Conversely, he found dealing with Mr Kumar "overwhelming", and he considered that Mr Kumar's refusal to let him enter the premises without signing in to be "unjustified" and "inconsiderate". 6. It was Mr Nath who requested that Mr Kumar escalate the situation to a more senior employee. When Mr Kumar placed the call, he misdescribed what had occurred so as to paint a false picture of Mr Nath's conduct. 7. When Ms Brightwell approached Mr Nath, she did so in an aggressive fashion, and appeared agitated and irate. She did not introduce herself, so Mr Nath was not aware of her name or position. While she was talking to Mr Nath she was "swinging her arms". Ms Brightwell did not ask for Mr Nath's version of events but instead "kept giving [him] a verbal spray and would not let [him] talk". 8. Mr Nath acknowledged that he refused Ms Brightwell's suggestion to provide his mobile number to Mr Kumar, but denied the words she attributed to him. 9. At some point in the conversation, Mr Nath came to realise that he was on a NSW Police Force site. On making that discovery, he said to Ms Brightwell: "My apologies, I didn't know I was in a government installation and now I'm happy to give you my personal details as they will be safe here." 10. After several more attempts to sign in using the site's QR code, Mr Nath said: "My apologies, once again I'm happy to give my personal details if you wish to put them on the system." 11. Mr Nath denied that he was "dismissive, rude, arrogant and belittling" as alleged by Ms Brightwell, although he accepted that both she and Mr Kumar genuinely feel that he did act in such a manner. He stated that it was possible that they misinterpreted his direct communication style, which was "firm, assertive and no-nonsense", as being "arrogant, rude and overbearing". 12. Mr Nath apologised to Ms Brightwell on three occasions during his interaction with her, "not because [he was] dismissive, rude and arrogant, but simply because [he] had misunderstood [his] location and had acted differently as a result".
The Police Commissioner determined that there were reasonable grounds for her to conclude that on 18 June 2021, Mr Nath was dismissive, rude, intimidating, belittling and arrogant towards Ms Brightwell and Mr Kumar. The Police Commissioner stated, under the heading "Consideration" in the Statement of Reasons: "In relation to Allegation 1, I am satisfied that the evidence establishes that you have treated Mr Kumar and Ms Brightwell in a disrespectful and dismissive manner while you were performing your policing duties. In fact, I note that you have acknowledged how your conduct could be perceived in such a manner, despite continuing to deny you have engaged in misconduct. You should have clearly understood, particularly in the context of your disciplinary history, that you are required to treat all your NSWPF colleagues, as well as members of the public, with courtesy and respect, and to be truthful in your dealings with them. In considering your assertion that I should prefer your version of events over both Mr Kumar's and Ms Brightwell's, I have had regard to the fact that there is no evidence available to me that would suggest either Mr Kumar or Ms Brightwell had any motivation to be untruthful when describing your conduct and demeanour towards them. … I have also had regard to the fact that your conduct was aimed towards the Director of Fleet Services. In a hierarchical structure such as the NSWPF, it is important you treat everyone, but particularly your senior colleagues such as Ms Brightwell, with the respect and professionalism required of you. I do not accept your assertion that Ms Brightwell did not introduce herself to you. Regardless, even if you were not aware of her position as Director of FMS, on your own version of events, you asked Mr Kumar to call a 'senior person' so that you could explain your situation. Lastly, even if you were unaware of who she was or her position in the organisation, this still would not excuse your behaviour. As set out in the Notice, I am disappointed that your conduct towards Mr Kumar and Ms Brightwell arose in the context of you being uncooperative when asked to sign-in to the NSWPF location via QR code, in order to comply with your COVID-19 related obligations under, not only NSWPF policy, but the relevant Public Health Order that was in place at the time. As a sworn police officer, you are expected and required to set the most exemplary standard of adherence to the law. Your actions had the real potential to bring the NSWPF into disrepute and could have caused real reputational damage for the organisation."

[8]

Allegation 2

The background to Allegation 2, as set out in the Statement of Reasons, is described as being derived principally from responses to directive memoranda provided by Senior Sergeant Wood, Sergeant Jason Cula and Sergeant Renee Samcou. The summary provided in the Statement of Reasons included the following: 1. On 29 June 2021, Sergeant Cula was Mr Nath's supervisor. He was informed by another officer that Mr Nath would be leaving work early that day. Sergeant Cula approached Mr Nath and the two had the following conversation: "[Nath]: I need to leave at eleven am, I have an appointment at eleven forty-five. Cula : Two things, one, you don't simply tell me you are leaving, while you are on a rostered shift I am responsible for you, if you require leave of any kind I need to be aware and I have to approve it. [Nath]: But I have an appointment. Cula: You made an appointment during your shift time, that is not really appropriate. I will also need to know whether it is annual leave or sick leave you are requesting. [Nath]: It will be sick leave, it is to attend my physio for my shoulder. Cula: I get that, but as with everyone else, you need to leave for any reason (sic), you still need to run it by me first, I need to know where you are and if there is anything I need to do, can you before you leave complete the P956 sick report form? [Nath]: Yes." 1. Mr Nath did not complete the leave form. 2. On 5 July 2021, Senior Sergeant Wood informed Mr Nath, in the presence of Sergeant Cula, that if she wished to leave the building he was required to consult with Sergeant Cula first. This was confirmed in an email from Senior Sergeant Wood to Mr Nath later that day. 3. On 6 July 2021, Mr Nath commenced and signed an IRMP requiring that he "Perform duties as tasked by the RDTU/TOG Supervisors or Operations Coordinator" and "Seek permission from the RDTU/TOG Supervisors or Operations Coordinator prior to undertaking any tasks other than [his] allocated duties." 4. On 26 July 2021, Mr Nath attended a meeting with Sergeant Cula and (then) Senior Constable Lucaci, during which he was told that all future correspondence between Sergeant Cula and Mr Nath was to occur by email, so as to "avoid directions from Sergeant Cula being misconstrued by [Mr Nath], and/or [Mr Nath] telling lies to avoid work". Sergeant Cula also informed Mr Nath that a witness would be present at "any lengthy verbal communication" between the two of them. 5. Mr Nath subsequently met with Senior Sergeant Wood, with his support person Sergeant Samcou. Mr Nath reported concerns about Sergeant Cula, including that Mr Nath felt that he had been bullied in the past. Mr Nath sought a transfer. Senior Sergeant Wood informed Mr Nath he would support him performing duties at a different location under the IRMP. Senior Sergeant Wood told Mr Nath to speak to Inspector Ben MacFarlane about his desire to transfer under his IRMP. 6. Mr Nath proceeded to see Inspector MacFarlane, accompanied by Sergeant Samcou. 7. After that meeting, Mr Nath had a conversation with Sergeant Samcou during which he said: "I really have a headache, I think I need to take 2 hours annual leave and go home." Sergeant Samcou responded: "You do what you need to do, I'm going to go speak with Sergeant Cula and tell him what has just happened in the meeting, go get changed and do what you need to do." 8. Mr Nath left the workplace. He did not speak to Sergeant Cula before doing so. 9. On 30 July 2021, Mr Nath submitted a P902 Incident Reporting Form which stated that he took two hours sick leave on 26 July 2021 and saw his doctor the next day, who provided him with a WorkCover certificate deeming him unfit for duty from 27 to 29 July 2021. 10. On his return to work on 2 August 2021, Mr Nath spoke to Sergeant Samcou. During the conversation, Mr Nath said: "I thought by telling you, that I was getting approval, I thought you were telling Sgt Cula I was going home that day." Sergeant Samcou stated that was not Mr Nath's supervisor. She asked Mr Nath who he had spoken to about leaving work on 26 July 2021, and he responded: "No one, I thought you told me to go when you sent me to the locker room to get changed."
The Statement of Reasons proceeded to summarised the information provided by Mr Nath in a departmental interview on 16 September 2021 and in the Response. That summary included the following: Departmental interview On 16 September 2021, you participated in a departmental interview. During this interview, you acknowledged the terms of your IRMP. You also agreed that on 5 July 2021, you had received an email from Acting Inspector Wood stating, 'if you wish to leave the building you are to consult with Sergeant Cula first'. You said that shortly after 1.50pm on 26 July 2021, you left your meeting with Inspector MacFarlane and were walking down the corridor towards the ROT Unit office when you had the following exchange with Sergeant Samcou: You I've got a migraine due to stress from todays incidents. (sic) Samcou (in a passionate voice) Yogi, you can't carry on working like this. You need to go home, get rid of your gun, go and change now. You I'll go, but I'll have to let Sergeant Cula know. Samcou Yogi, you can't carry on working like this. Get rid of your gun, change and go, I will speak to Jason Cula. You don't worry, GO. You said you did not argue with Sergeant Samcou. You said you 'didn't want to offend her by not listening to her so [you] pretty much did what she asked [you] to do'. You said you then left work at around 2.00pm. You said you assumed you would be placed on two hours of sick leave as you were rostered to finish at 4.00pm. You said you recorded this sick leave in your diary. You also said: In the past I have terminated my shift due to annual leave and sick leave and have always followed the protocols so there was no way I was not going to follow it this time as well. If it wasn't for Sergeant Samcou assuring me that she will inform Sergeant Cula I wouldn't have left without speaking to the supervisor before terminating my shift. You said your failure to think 'laterally' was due to your migraine, and that you 'just followed what Sergeant Samcou asked [you] to do'. You said, 'I was going to go to Sergeant Cula but Sergeant Samcou assured me with her words there was no need to go to Sergeant Cula and that she would speak to him'. … You said that after your return from leave, you and Sergeant Samcou had the following exchange: Samcou Yogi, did you inform Sergeant Cula about leaving on the 26th? You No, I didn't personally because I couldn't continue to work in those circumstances and you also told me that you would inform Sergeant Cula about my leaving and you assured me that you would. Samcou I'm not your supervisor, I'm not supposed to tell Sergeant Cula anything. … … You acknowledged that, in hindsight, you had not complied with the terms of your IRMP. Response to the Notice In your Response, you allege that you have been subject to continuous bullying and harassment by Sergeant Cula throughout 2020 and 2021. You acknowledge that you had arranged a physiotherapist appointment without first seeking Sergeant Cula's approval. You say you intended to obtain his approval on the day of the appointment, but Senior Constable Jorgensen spoke to Sergeant Cula about it before you had a chance to. You also acknowledge that you forgot to complete the P965 form that Sergeant Cula had asked you to complete. You said that, during your meeting with Sergeant Cula on 26 July 2021 he accused you of lying and swore at you. You refute the version of events Sergeant Cula has provided in relation to that conversation. You also admit that you failed to obtain Sergeant Cula's approval before taking two hours leave after suffering from a headache after a workplace dispute with Sergeant Cula. You admit that you had been directed to obtain Sergeant Cula's approval before leaving the workplace, and that your IRMP required you to obtain supervisor approval 'prior to undertaking any tasks'. You acknowledge that, during your subsequent meetings with Sergeant Wood and Inspector MacFarlane, and while in the company of Sergeant Samcou, you did not ask for permission to take leave that afternoon. You maintain that after these meetings, you told Sergeant Samcou that you needed to speak to Sergeant Cula before taking leave, and that Sergeant Samcou advised you that she would advise Sergeant Cula on your behalf. You say it was on this basis that you believed you did not need to personally obtain Sergeant Cula's approval before commencing leave. … While you admit to the conduct forming the basis of Allegation 2, you deny that you failed to comply with s 7 of the Police Act, cl 8 of the Police Regulation 2018, and the Code, as alleged in the Notice. You describe your failure to obtain Sergeant Cula's approval before taking leave as a 'simple mistake'." (Italics and bold in original)
The Police Commissioner determined that there were reasonable grounds for her to conclude that on 26 July 2021, Mr Nath was absent from his workplace without authorisation, in contravention of the direction given to him verbally and in writing by Senior Sergeant Wood on 5 July 2021, and the terms of the IRMP dated 6 July 2021. The Police Commissioner stated, under the heading "Consideration" in the Statement of Reasons: "With regard to Allegation 2, you have acknowledged that both your IRMP and Senior Sergeant Wood made it clear that you were to seek approval from Sergeant Cula (or at the least one of your other supervisors) before leaving your workplace. Despite this being made so clear to you twice on 5 July 2021 and again on 6 July 2021, I am satisfied that you have acted with complete wilful or reckless disregard for this requirement less than three weeks later, on 26 July 2021. I also have significant regard to the fact that you were on notice about the conduct the subject of Allegation 1, and had been placed on an IRMP as a result, very shortly before engaging in the conduct the subject of Allegation 2. Again, this causes me significant concern about your ability to comply with your obligations under NSWPF policy, and to achieve the standards of behaviour required of you. I am not convinced by your assertion that you legitimately believed you had complied with your duties by telling Sergeant Samcou of your intent to take leave that afternoon or that Sergeant Samcou had advised you that she would speak to Sergeant Cula on your behalf. I note that this is not consistent with the version provided by Sergeant Samcou… As Sergeant Samcou made clear to you, she was not your supervisor, but was merely acting as your support person, and therefore did not have any authority to approve you taking leave. While you have since acknowledged your failure to comply with your IRMP, I am very disappointed that you continue to fail to take adequate responsibility for your own actions. I consider this to be demonstrative of an ongoing pattern of behaviour from you, whereby you seek to assign blame on others for your failings. I also am not persuaded by your suggestion that this instance is an aberration, and that you had always otherwise followed protocols when taking sick and/or annual leave. Contrary to this assertion, you acknowledge that you had scheduled a physiotherapy appointment for 29 June 2021 without having sought the necessary approval to do so. Again, this demonstrates that you have displayed a lack of integrity and candour when responding to allegations against you, and that you are all too willing to place your own interests above those of the organisation."

[9]

Mr Nath's disciplinary history

The Statement of Reasons described Mr Nath's disciplinary history as follows: "Disciplinary history On 12 May 2000, you attested to the NSW Police Force (NSWPF). On 12 May 2005, you were promoted to Senior Constable. On 9 September 2008, you were counselled for breaching the Code of Conduct and Ethics, after you took a photo of a VIP customer while performing policing duties at a user pays event. On 27 November 2012, you were served with a Commander's Warning Notice, after you engaged in verbal and psychological abuse against your partner at the time and used abusive language towards an Inspector of the NSWPF serving you with an Apprehended Domestic Violence Order (ADVO). It was reinforced with you the need to act at all times in accordance with the obligations and requirements of the Police Act 1990, the NSWPF Code of Conduct and Ethics and all relevant policies and procedures. You were warned that any further unsatisfactory conduct may result in further management action under either s 173(2) or 181D of the Police Act 1990. On 17 December 2012, you commenced a three-month Conduct Management Plan (CMP), after you conducted yourself with incivility and rudeness towards a civilian. Under 'Strategy 2' of the plan, the NSW Police Standards of Professional Conduct, Code of Conduct and Ethics, the NSW Police Statement of Values and the NSW Police Customer Service Charter and Guidelines were reinforced with you. You signed your acknowledgement of each policy/guideline and participated in the relevant six minute intensive training (SMIT) exercise. On 28 October 2013, you were served with a Region Commander's Warning Notice, after you recorded a conversation with your supervising Sergeant without obtaining their authorisation. It was once again reinforced with you the need to act at all times in accordance with the obligations and requirements of the Police Act 1990, the NSWPF Code of Conduct and Ethics and all relevant policies and procedures. You were again warned that any further misconduct may result in further management action under either s 173(2) or 181D of the Police Act 1990. On 14 June 2016, you were served with a Commissioner's Warning Notice signed by former Commissioner Andrew Scipione APM, after you: • engaged in inappropriate and unprofessional conduct towards another officer and failed to follow a direction given to you regarding your conduct towards that officer; and • engaged in inappropriate and unprofessional conduct towards both a civilian child and another officer, by way of sexual comments. Former Commissioner Scipione specifically made reference to the Commander and Region Commanders' Warning Notices and emphasised that he would not tolerate any further failures to comply with the required standards of a police officer. You were warned that any further failures may result in your removal under s181D of the Police Act 1990. On 29 June 2017, as a result of your conduct above and pursuant to s173(2) of the Police Act 1990, you were: • reduced in increment to Senior Constable Level 5 Step 2 (from Senior Constable Level 6) for a period of three months, subject to your successful completion of a three-month CMP (which also commenced on 29 June 2017); and • the subject of a disciplinary transfer from the Police Transport Command to the Traffic and Highway Patrol Command. Your Commander noted that the previous Warning Notices appeared to have been ineffective in deterring your inappropriate behaviour. On 24 October 2019, you were served with another Commissioner's Warning Notice signed by former Commissioner Michael Fuller APM after you failed to: • properly secure your firearm and/or appointments on two occasions (on 1 and 2 March 2018), and were untruthful when responding to the allegations against you; and • comply with a direction given to you, not to perform operational policing duties while on restricted duties, not in uniform and/or without your arms and appointments. Former Commissioner Fuller stated that if your integrity is called into question, if you engage in misconduct, if you fail to perform your duties to the required standard or to demonstrate the competence required of you in the future, he could not see how he could retain confidence in your suitability to remain a police officer. On 26 November 2020, as a result of your conduct above and pursuant to ss 173(2) and (11) of the Police Act 1990, you were reduced in increment to Senior Constable Level 4 Step 2 (from Senior Constable Level 6). Your Commander made it clear that, going forward, there was an expectation that you would demonstrate that you are a productive and valuable member of the NSWPF and that you will not come under adverse notice again and that any further misconduct will not be tolerated." (Emphasis in original)
In the discussion regarding Allegation 1, the Statement of Reasons refers to the Response in these terms: "Disciplinary history You assert that I should have little to no regard to your disciplinary history, as it would be inherently unfair to take it into account when you have already been 'punished' for it. You continue to cavil with the facts underpinning, and investigation of, the prior sustained findings against you. With respect to some of those prior findings, you deny the conduct completely."
The Police Commissioner ultimately did place weight on Mr Nath's disciplinary history. This is seen in some of the passages from the Statement of Reasons referred to above. Further, under the heading "Consideration" the Statement of Reasons states: "As set out in my Notice, these two Allegations arise in the context of a troubling disciplinary history, where you have previously come to notice for similar misconduct and unsatisfactory performance on regular occasions throughout your career. Accordingly, these Allegations and your disciplinary history, cause me to conclude that I do not have confidence in your suitability to remain a member of the New South Wales Police Force, notwithstanding your lengthy period of service. It is unfortunate that you have not taken the 'second chance' you were given by Commissioners Scipione or Fuller to prove you could take greater responsibility for your actions and meet the standards expected. Accordingly, I am satisfied that you are either unwilling or unable to consistently perform your duties to the level expected of a Constable of Police. I have carefully reviewed all of the material associated with this matter. While you have made limited or qualified admissions to some of the conduct, you still cannot accept that you have contravened your obligations through your behaviour. Given the persistent nature of your misconduct and your failure to accept responsibility for your actions, I consider your ongoing appointment as an officer of the NSW Police Force would pose an unacceptable risk that I cannot tolerate. In those circumstances, there is no additional mitigating factor you have raised that would provide me with any basis not to lose confidence in your suitability to remain a police officer."

[10]

Conclusions

It was not in dispute that the Notice was served on Mr Nath pursuant to s 181D(3)(a) of the Police Act, and that he was given 21 days to make a written response to the Police Commissioner in accordance with s 181D(3)(b). He availed himself of that opportunity in providing the Response. Both the Order and the Statement of Reasons suggest that the Response was taken into consideration, as required by s 181D(3)(c).
In Baker v Commissioner of Police [2015] NSWIRComm 14 Kite AJ (as he then was) observed: "95. The Commissioner is obliged by s 181D(4) of the Act to give reasons. This statutory duty is an exception to the common law position in relation to administrative decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. The adequacy of the content of those reasons is to be determined, absent any express requirements in the legislation, by an exercise of statutory construction: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 303 ALR 64; 88 ALJR 52. 96. The statutory purpose may be inferred from the surrounding provisions, in particular s 181D(7) and Division 1C of the Act. One purpose which may be inferred is to inform the officer directly affected as to why the decision has been taken so as to allow that officer to decide whether to commence review proceedings. Another purpose which may be inferred is to facilitate any such review. 97. That then requires a consideration of the nature of these proceedings. As observed above, while the starting point in such proceedings is the Commissioner's reasons, the burden is upon the applicant to establish 'that the removal was harsh, unreasonable or unjust'. The Commission hears the applicant's case and the Commissioner's case in response, and then makes a 'fresh and independent review [of the] decision itself'. 98. The adequacy of the content of the reasons is to be measured in this context. The essence of the reasons is to explain why the decision has been taken. It is not necessary, in the reasons, expressly to negate every possibility: cf Lawrance at [274]-[276]. …"
The Statement of Reasons explains how the Police Commissioner determined that Allegations 1 and 2 had been substantiated. The gravity with which those findings were to be viewed was assessed in the context of Mr Nath's disciplinary history.
On its face, the Statement of Reasons provided a basis for the Order.

[12]

Allegation 1

Mr Nath denied Allegation 1. In the alternative, he contended that if he is found to have engaged in the alleged conduct, "the conduct relied upon does not constitute misconduct for the purposes of s 173 of the Police Act".
Mr Nath further submitted that the Order was beyond power or unjust to the extent that it was grounded in allegations of misconduct in respect of which he is not guilty. He submitted further that the Order is harsh, unreasonable or unjust.
Mr Nath contended that the events of 18 June 2021 needed to be viewed in the context that he was not originally aware that the Fleet Services compound, where he encountered Mr Kumar and Ms Brightwell, was a NSW Police Force site. He was of the view that the premises were wholly operated by Amtek.
Mr Nath gave evidence that when on 17 June 2021 (then) Acting Sergeant Lucaci instructed him to collect the vehicle, he had said to collect it "from Amtek". His confusion as to the operator of the premises was said to be further evidenced by the fact that he and Senior Constable Jorgensen had initially attended the wrong location, being the premises operated by Amtek which Mr Nath had previously attended.
Mr Nath submitted that this confusion explained his initial reluctance to provide his mobile number when asked to do so by Mr Kumar and Ms Brightwell. That is, he was under the impression that he was being asked to provide personal information to a third party provider. He stated that he "was not comfortable in providing [his] personal details along with [his] personal mobile number to any private organisation fearing that this could be mishandled or fall into the wrong hands".
Mr Nath stated that on his arrival at the Amtek premises, he "spoke to [the] staff at the reception where [he] was asked to complete the Check-in-Register, which [he] did by providing all the required details".
Mr Nath stated that he "maintained professionalism in [his] dealings with Mr Kumar". Conversely, he described Mr Kumar's conduct during the exchange as being "abrupt and rude" and at one stage talking "in a very aggressive voice". He considered that Mr Kumar was being "unreasonable and inconsiderate" in asking him to sign in, when Mr Nath had already done so at reception. Contrary to the information provided by Mr Kumar, Mr Nath insisted that it was he, and not Mr Kumar, who suggested that he be put in contact with Mr Kumar's supervisor or manager.
Mr Nath submitted that his recollection of the exchange with Mr Kumar should be accepted, noting that Mr Kumar was not called by the Police Commissioner to give evidence in these proceedings.
As to his exchange with Ms Brightwell, Mr Nath stated that he could not remember her introducing herself or wearing any identification. He submitted that there was doubt as to the precise circumstances regarding the introduction, in that either there was no introduction in the terms described by Ms Brightwell, or Mr Nath did not hear it. It followed, it was argued, that the evidence supports a finding that confusion existed in his mind about both his location and Ms Brightwell's position. This was said to be reflected in the fact that once he became aware that he was on a Fleet Services site, and of Ms Brightwell's position, he agreed to provide his mobile number and apologised at least twice for the confusion.
Mr Nath stated that he did not talk down to Ms Brightwell, and nor was he "rude or authoritative" towards her. Rather, he called into question Ms Brightwell's behaviour. He described her as waving her arms in an aggressive way and "giving him a spray". He stated that when Ms Brightwell explained to him that he was on Fleet Services site, "Ms Brightwell's manner had now calmed down and her tone of voice was also a lot calmer".
Mr Nath submitted that Ms Brightwell's evidence was exaggerated and "overly judgemental" against him. He challenged Ms Brightwell's reliability as a witness on the basis that her evidence was "highly subjective" and did not reflect "a fair and impartial account of the events".
Mr Nath stated that he did not intend to appear rude or discourteous to Mr Kumar or Ms Brightwell, and if he "came across that way" it could be due to the "firm and assertive" way he speaks as a police officer, coupled with the "wrong choice of words". It was not intentional.
Mr Nath submitted that the issue of whether he was dismissive, rude, intimidating, belligerent and arrogant is "highly subjective and of variable degrees" and does not amount to a breach of s 7 of the Police Act, the Policy Statement, the Guidelines or the Code of Conduct. He further contended that the conduct alleged against him did not meet the definition of "misconduct" in s 173 of the Police Act, having regard to McDiarmid v Commissioner of Police [2012] NSWIRComm 100 at [116]-[117] and [123]-[125] and Michael Flynn v Commissioner of Police [2019] NSWIRComm 1030 at [89].

[13]

Allegation 2

Mr Nath admitted Allegation 2, but denied that his conduct amounted a breach of s 7 of the Police Act, cl 8 of the Police Regulation, the Policy Statement, the Guidelines or the Code of Conduct. He submitted further that the conduct does not constitute misconduct for the purposes of s 173 of the Police Act.
Mr Nath submitted that the direction which he breached was issued as a consequence of him having arranged to leave work early on 29 June 2021 to attend a physiotherapist appointment. He stated that over the preceding weeks he had developed pain in his elbows, shoulders and back, and that the only physiotherapist appointment he had been able to secure was at 11.45am on 29 June 2021. He stated that he had never intended to leave work without seeking Sergeant Cula's approval, but that he had not had a chance to raise it with him before Sergeant Cula approached him.
He conceded that he had not completed the P965 form requested by Sergeant Cula, but that this was an oversight. He stated that he was "not seeking to undermine Sergeant Cula".
Mr Nath gave evidence that on 26 July 2021 he had been called to a meeting with Sergeant Cula and (then) Senior Constable Lucaci, during which he was accused of lying, was sworn at and was told that all future communications between him and Sergeant Cula needed to be in writing. Mr Nath stated that the meeting left him "distressed and upset and [he] felt humiliated, degraded, and ridiculed".
Mr Nath stated that following the meeting, he spoke with Sergeant Samcou. Together they proceeded to have meetings with Senior Sergeant Wood and Inspector MacFarlane.
Mr Nath stated that after these meetings he had the following conversation with Sergeant Samcou: "[Mr Nath]: I have got a migraine due to stress from today's incidents. Samcou: Yogi, you can't carry on working like this. You need to go home, Get rid of your gun, go and change now. [Nath]: I will go, but I will have to let Sergeant Cula know. Samcou: Yogi, you can't carry on working like this. Get rid of your gun, change and go, I will speak to Jason Cula. You don't worry GO." (sic)
Mr Nath stated that he had "never seen [Sergeant Samcou] so passionate in her tone of voice" and interpreted her words "as though [he] was being directed to go home". Mr Nath stated that on that understanding, and believing that Sergeant Samcou would report the matter to Sergeant Cula, he left the workplace without himself obtaining Sergeant Cula's approval.
Mr Nath relied on evidence given by Sergeant Samcou under cross-examination to the effect that during and following the meeting with Inspector MacFarlane, Mr Nath was "very distressed" and was upset and crying.
In his closing written submissions, Mr Nath submitted: "61. It is submitted the evidence supports a finding that the Applicant genuinely and honestly believed he was being excused from personally complying with the notice requirement in his Interim Risk Management Plan. This was in circumstances where the Applicant was terminating his shift 2 hours early because he had a migraine headache and he believed that because he had the headache he would be taking 2 hours sick leave as opposed to annual leave… .This occurred at a time when the Applicant was crying and distressed and was not in a state to return to the office. 62. It is submitted that the evidence supports a finding that the Applicant's breach of the Interim Risk Management Plan and breach of the direction by Snr Sgt Wood by being absent from the workplace without authorisation was because of a genuine and honest mistake or honest mistake [sic] on his part and, that it was not a result of a deliberate breach. 63. It is submitted that the circumstances of the breach are significantly mitigated or reduced and there are no aggravating features of the breach, which are relevant considerations on the question of harshness."

[15]

Disciplinary History Ruling (28 November 2023)

In his written evidence in these proceedings, Mr Nath traverses at length his disciplinary history. A question has arisen as to whether that evidence ought to be accepted by the Commission and, if so, on what basis.
Mr Nath essentially divides his disciplinary history into two parts. In the first, he denies the conduct which resulted in the relevant action being taken against him. Mr Nath contends that in respect of that category, the evidence is led to demonstrate that there was no reasonable foundation for the relevant action having been taken against him and that as a consequence, it should not have been taken into account by the Police Commissioner in deciding to remove him from the Police Force.
There are three actions said to fall into this category. The first was a Commander's Warning Notice issued on 27 November 2012 after Mr Nath was found, in summary, to have engaged in verbal and psychological abuse against his then-partner, and using abusive language towards an Inspector of the Force serving Mr Nath with an apprehended domestic violence order. The second was a three-month conduct management plan which was imposed on Mr Nath on 17 December 2012 after Mr Nath was found to have conducted himself with incivility and rudeness towards a member of the public. The third related to a Commissioner's Warning Notice that was issued to Mr Nath on 14 June 2016 after he was found to have engaged in inappropriate and unprofessional conduct in a number of respects. It is common ground that these three actions were "non-reviewable action" within the meaning of s 173(1) of the Police Act.
In the second category of action identified by Mr Nath he admits, or at least does not dispute, the conduct alleged against him but seeks to place it into context. He submits that in respect of this second category, the evidence is relevant to determine what weight should have been attached to the relevant action.
Mr Nath submits that the approach he urges on the Commission is consistent with the decision of the then‑President of the Commission Boland J in Reid‑Frost v Commissioner of Police (No 2) [2010] NSWIRComm 86 and of the Court of Appeal in Reid‑Frost v Industrial Relations Commission of NSW [2013] NSWCA 161. I will not traverse the history of those cases.
In the 2010 decision, the President summarised the reasons why the Police Commissioner in that case had issued the officer with a notice under s 181D, having reproduced in his decision the statement of reasons which the Police Commissioner had issued. In his decision, his Honour explored in turn each of those reasons. One of those reasons included a Commander's Warning Notice which had been issued to the officer and the officer's response to that notice, which was said to have "provided further evidence of an inability to be consulted or to accept advice and directions".
Having explored the evidence regarding the Commander's Warning Notice, the President concluded (at [55]): "In my opinion, there was a strong circumstantial case against the applicant, and the Commander was entitled to issue the Warning Notice and to order non-reviewable action." His Honour went on to say: "56. The Warning Notice, therefore, was not without reasonable foundation and in arriving at his decision to remove the applicant, the Commissioner was entitled to rely on the fact that such a Warning Notice had been issued against the applicant, with the warning that further unsatisfactory conduct or performance might result in further management action against the applicant."
The matter proceeded on appeal to the Court of Appeal. Again, it is not necessary that I traverse the process by which that occurred. Suffice it to say, one of the grounds raised on appeal was whether Boland J had erred by reviewing and making a finding in regards to a non‑reviewable action. Macfarlan JA, with whom McColl JA agreed, observed: "69. This Ground relates to the Warning Notice referred to in [41] above. By reason of s 173 of the Police Act, the giving of that warning was 'non-reviewable action' which the Commission had no power to review. Ms Reid‑Frost submits that, contrary to the section, Boland J did in fact do so, because in his judgment he considered whether the Commissioner's reliance upon the matters of complaint referred to in the Notice were well-founded. 70. Boland J did not in my view act contrary to s 173 by considering whether there was a sound basis for the giving of the Warning Notice. That section is concerned with challenges by judicial review or otherwise to the Warning Notice itself. It does not in my view prevent consideration, as here, of the reasonableness of the Warning Notice in the context of a subsequent examination of events leading up to, and allegedly justifying, the removal of a police officer under s 181D. The alternative of simply assuming that the Warning Notice was justified would unfairly prevent an officer who was subsequently removed from the Police Force arguing that the giving of the Warning Notice was unreasonable and that the matters to which it referred should not have been used by the Commissioner in deciding to remove the officer from the Police Force."
I hesitate to say it, and I do so with the utmost of respect, but I have some difficulties reconciling his Honour's observations with the structure of Pt 9 of the Police Act. The Act at s 173 draws a distinction between reviewable and non‑reviewable action. Section 174 allows for an application to the Commission to review an order for reviewable action on the basis that it is beyond power or is harsh, unreasonable or unjust.
Other than to the extent that there may be appeal channels internal to the Police Force or an order is susceptible to administrative review in the Supreme Court, the Police Act seems to anticipate that non‑reviewable action will be entirely that. Allowing for consideration of the "reasonableness" of non‑reviewable action appears to blur that line.
Also, with respect, I do not agree with his Honour that s 173 of the Police Act "is concerned with challenges by judicial review or otherwise to the warning notice itself". In the first place, that is not the subject matter of s 173. That section empowers the Police Commissioner to take action with respect to a police officer's misconduct or unsatisfactory performance. The right of review is to be found in s 174 of the Act, assuming that is the section to which his Honour intended to refer. The ability of the Commission to consider not only whether an order for reviewable action is beyond power, but also whether it is harsh, unreasonable or unjust, suggests a broader inquiry than his Honour appears to anticipate.
That being said, it is trite to observe that I am bound to follow the authority of the Court of Appeal. In any event, his Honour can be taken as having recognised a distinction between review proceedings under the Police Act and a consideration of the reasonableness of non‑reviewable action in the context of examining events leading up to and allegedly justifying the removal of a police officer under s 181D.
This limited scope of inquiry is consistent with the finding by Boland J in the 2010 decision that the warning notice "was not without reasonable foundation", noting that his Honour did not consider whether the warning notice was beyond power or harsh, unreasonable or unjust, and his conclusion that the Police Commissioner was entitled to rely on the fact that such a warning had been issued.
I observe that a similar approach was taken by Commissioner Constant (as she then was) in Flynn v Commissioner of Police [2019] NSWIRComm 1030, to which the Police Commissioner referred me. In that case the Commissioner observed: "43. I agree with the respondent that Reid-Frost (No 2) is not authority for the proposition that the respondent must prove every fact which forms some part of the foundation for the warning notices, particularly not in circumstances where there was no challenge to the correctness or the legitimacy of the warning at the time it was given. 44. The question that Justice Boland asked himself in Reid-Frost (No 2) was whether the warning notice was issued without a reasonable foundation in circumstances where the warning notice was controversial and, his Honour having found that the warning notice was not issued without a reasonable foundation, continued on the basis that the Commission was entitled to rely on it on reaching his ultimate decision: at [56]. In this instance, there is no evidence before the Commission of any internal challenge to the warning. 45. His Honour did not make any findings about the conduct which was the subject of the warning in Reid-Frost (No. 2). As set out above, Justice Boland's approach was challenged by the former police officer in that case in the Court of Appeal, and the Court of Appeal did not take any issue with his Honour's approach."
The Commissioner went on to observe: "53. I do not need to find that the warning was fair or that matters underpinning it were made out on the balance of probabilities. I need only determine that the warning was not given without foundation."
Based on the authorities to which I have referred, I have determined that the Commission is entitled to consider whether there was a reasonable foundation for non-reviewable action taken against Mr Nath in the past, and in that context, whether the Police Commissioner was entitled to rely on it when making her decision to issue an order under s 181D of the Police Act removing him from the Police Force.
It follows that Mr Nath is entitled to lead evidence on that question. This is, however, subject to a significant caveat. The Police Commissioner has flagged leading evidence to the effect that: 1. the conduct giving rise to some of the non-reviewable action taken against Mr Nath was relied on to take reviewable action against him; 2. Mr Nath exercised his rights of review under the Police Act in respect of that reviewable action; and 3. the resultant proceedings in the Commission were resolved prior to arbitration.
If: 1. Mr Nath invoked the Commission's jurisdiction to challenge reviewable action taken against him; 2. that reviewable action was taken for the same reasons as the non‑reviewable action in respect of which he now seeks to bring evidence; and 3. he elected not to contest the factual underpinning of the reviewable action but instead agreed to settle the proceedings, then in my view, he cannot now claim that the non‑reviewable action was taken without reasonable foundation.
I say this having regard to s 176 of the Police Act, which requires the Commission, "by all means it considers proper and necessary", to settle claims by conciliation and the importance attached by the Commission to holding parties to agreements reached in conciliation. I draw attention to the matter of Liszt v Health Secretary in respect of Sydney Local Health District [2020] NSWIRComm 1030. It would seem to be inconsistent with a conciliated outcome that Mr Nath be permitted to challenge in respect of non‑reviewable action that which he elected not to challenge in respect of reviewable action.
I am not entirely persuaded that there is authority for the proposition that Mr Nath can lead evidence going to the weight that ought to have been or should be attached to his disciplinary history. Nothing in either of the Reid‑Frost decisions to which I have referred or Flynn addresses that point. However, this is not a matter requiring determination at this stage.
I have determined that the evidence which Mr Nath has led regarding his disciplinary history will be admitted on the following bases: 1. Subject to the caveat to which I have referred, it can be led on the question of whether the action taken against Mr Nath was taken without reasonable foundation. Consistent with Flynn, this will not entail determination as to whether the particular action was fair or that the factual matters underpinning it were made out on the balance of probabilities. 2. Otherwise, the evidence will be admitted subject to a determination as to the weight, if any, to be given to that evidence.
On the question of weight, I put Mr Nath on notice that my consideration will take into account the extent to which the evidence on which he now seeks to rely was before the Police Commissioner prior to her making the decision to issue the order under s 181D.

[16]

Mr Nath's contentions

Mr Nath contended that there were relevantly two categories in his disciplinary history. The first involved instances where he denied the conduct which resulted in the relevant action being taken against him, with his evidence being led to demonstrate that there was no reasonable foundation for the relevant action having been taken against him and that consequently, it should not have been taken into account by the Police Commissioner in deciding to remove him from the NSW Police Force. This category was said to comprise the Commander's Warning Notice issued on 27 November 2012 and a Conduct Management Plan imposed on 17 December 2012.
The second category was said to concern admitted conduct which resulted in the relevant action being taken against Mr Nath, with his evidence in these proceedings "being led to go to the issue of the Commission determining what weight should be given to the relevant action". This category was said to comprise the Region Commander's Warning Notice issued on 28 October 2013 and the Commissioner's Warning Notice issued on 24 October 2019.
In referring to the first and second categories in his closing written submissions, Mr Nath used the terms "Denied Disciplinary History" and "Admitted Disciplinary History" respectively. For convenience, I will adopt the same terms. However, and for clarity, there was no controversy that Mr Nath was subject to all of the disciplinary action identified in the passage from the Statement of Reasons reproduced at [25] above. Other than the Denied Disciplinary History, I consider Mr Nath's disciplinary history to be "admitted".
Mr Nath's evidence regarding the Denied Disciplinary History comprised a description of the events which were the subject of the relevant disciplinary action. In respect of each he submitted that there was no evidence led by the Police Commissioner to suggest that his denial of having engaged in the alleged conduct was inaccurate or should not be accepted. He contended that, in the circumstances, he had established that the Commander's Warning Notice and Conduct Management Plan were issued without reasonable foundation.
Mr Nath's evidence as to the Admitted Disciplinary History traversed in detail the conduct giving rise to the relevant disciplinary action and the context in which it occurred. He submitted that his evidence reduced or mitigated the misconduct the subject of the disciplinary action.
In his closing written submissions, Mr Nath contended: "130. When considering the weight to be given to the Applicant's overall disciplinary history it is submitted that the following factors ought to be taken into account: a. The disciplinary history involves a period of 13 years over 23 years of service in the Police Force. b. The disciplinary history was considered by the Respondent when the Applicant settled his application in the Commission on 29 June 2017 in which he sought review of an order issued to him on 7 September 2016 under s 173(2) of the Police Act. The settlement agreement…resulted in the issuing of the order under s 173(2) of the Police Act which reduced the Applicant's level within the rank of senior constable to Level 5 Step 2. c. The disciplinary history was considered by the Respondent when the Applicant responded to a show cause notice issued to him under s 181D Police Act on 5 March 2019. The Respondent did not lose confidence in the Applicant but instead issued the Commissioner's Warning Notice on 24 October 2019. d. The disciplinary history was considered by the Respondent when the Applicant settled his application in the Industrial Relations Commission 26 November 2020 in which he sought review of an order issued to him on 8 April 2020 under s 173(2) of the Police Act. The settlement agreement…resulted in the issuing of the order under s 173(2) of the Police Act which reduced the Applicant's level within the rank of senior constable to Level 4 Step 2. e. The Order under review in the present proceedings dated 19 September 2022 was then issued."

[17]

Harsh, unreasonable or unjust

Mr Nath submitted that the Order was harsh, unreasonable or unjust. His contentions in this regard included the following: 1. The Order was beyond power or unjust to the extent that it was grounded on Allegation 1, as the evidence establishes that Mr Nath did not engage in the conduct alleged against him. 2. The Police Commissioner was wrong to conclude that the incident on 29 June 2021 was an aggravating feature in respect of Allegation 2, in so far as it informed her view that Mr Nath's breach on 26 July 2021 was an aberration. Mr Nath's evidence was that he intended to seek Sergeant Cula's approval before taking the leave. 3. The Police Commissioner could not have been satisfied that Mr Nath's conduct and disciplinary history provided her with reasonable grounds to lose confidence in his suitability to remain a police officer. In relying on the Regional Commander's Warning Notice issued on 27 November 2012 and/or the Commissioner's Warning Notice issued on 14 June 2016 there was a failure to deal with the matter in a procedurally fair way resulting in a failure to afford procedural fairness which caused a substantial and irrevocable prejudice to Mr Nath. 4. The seriousness of the admitted conduct, and "any denied conduct of which [Mr Nath] may be found guilty", was not so serious as to warrant removal from the Police Force. Disciplinary action under the Police Act other than removal was appropriate.
Mr Nash's closing written submissions included the following: "137. The factors relevant to the consideration of mitigation of the Applicant's conduct are as follows: a. The Applicant had 23 years of service within the Police Force, including recognition by way of complimentary remarks. b. Whist there have been issues with the Applicant's conduct and performance in the past, the evidence does not establish that those matters were of a level of seriousness such as to entirely erase the mitigating effect of the Applicant's 23 years of service. c. Objectively demonstrable remorse and contrition and the acceptance of responsibility. d. The stigma which may attach to the circumstances surrounding the removal from the Police Force. e. Consequences of the removal particularly the necessity to consider the consequences facing an employee and to the mitigating factors, including the immediate consequences of dismissal, such as the impact on superannuation following the removal of a police officer. Both the financial consequences of the removal and the prospect for the Applicant's economic future are relevant. f. At the time of the commission of the conduct concerning Allegation 2 the Applicant had a migraine headache and was upset and distressed. 138. The Commission is entitled to take into account objectively demonstrable remorse and contrition and acceptance of responsibility, as mitigating factors: Commissioner of Police v Collins [2008] NSWIRComm 162 at [67], which the Applicant submits are demonstrated by the following factors: a. he apologised to Ms Brightwell on 18 June 2021. b. he apologised to Mr Kumar and Ms Brightwell for anything that he said that might have upset them… c. he apologised to Sgt Cula on 29 June 2021 for failing to submit a sick leave report before taking sick leave… d. he has admitted that he breached the Interim Risk Management Plan in respect of Allegation 2."
Mr Nath referred to the requirement under s 181F(3) of the Police Act that the Commission have regard to Mr Nath's interests and the public interest. He submitted that his interests included his age of 59 years, his 23 year tenure with the NSW Police Force "and the specialist nature of his skills which will make it difficult for him to find suitable alternative employment".
On the question of the public interest, Mr Nath's closing written submissions included the following: "144. Considering the public interest involves a balancing of interests, including competing public interests, and will be very much a matter of fact and degree. The public interest is prescribed by the Police Act to include the public interest of maintaining the integrity of the Police Force, and also to include the fact that the Commissioner of Police made the order removing the Applicant pursuant to s 1810(1). 145. The fact that the Commissioner of Police made the order removing the Applicant for loss of confidence based on competence, integrity, performance and conduct should not be elevated or given some higher status, or place of prominence, or priority, above any other factor, or factors, which might fall for consideration as part of the balancing exercise between the competing interests under s 181F(3) of the Police Act: Commissioner of Police v Sewell (2008) 180 IR 91 at [7]. 146. 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 removing an officer in deference to the public interest in the integrity of the Police Force. Nor does it assume that the public interest will always operate against the interests of an individual officer: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [217]. 147. The public interest includes a consideration of the fact that the NSW public, who pay for the Police Force, have invested 23 years in developing the Applicant as a good and experienced police officer. It is submitted that the public interest is not best served by discarding him but that there is a real public interest in maintaining an experienced police officer. 148. The requirement of a police officer to act with integrity does not constitute an absolute test of the officer's suitability to remain in the Police Force, otherwise the whole system of review under Part 9 of the Police Act would be meaningless: Toshack v Commissioner of Police (2009) 181 IR 420 at 46."
Mr Nath submitted that if the Order was not set aside and an order for reinstatement or re-employment was not made, his future life will be severely affected and having regard to his conduct, although serious, it would be too harsh a sanction.

[19]

Allegation 1

Mr Lucaci gave evidence that on 17 June 2021 he asked Mr Nath "to go to Fleet Services…which is located at Amtek premises". He stated that he advised Mr Nath "he would need to go to the Police section, which would require him to drive into the Amtek driveway, turn left and drive towards the gate covered in black mesh, and press the buzzer where they would let him in". The Police Commissioner submitted that this evidence had not been shaken in cross-examination, despite Mr Lucaci being challenged on it.
The Police Commissioner relied on a statement from Mr Kumar, which was included in the Commissioner's Confidence Documents. In his statement, Mr Kumar recounted the events of 18 June 2021. He described Mr Nath as being rude when he was talking to him. He stated that when Mr Nath was speaking to Ms Brightwell he spoke down to her in an authoritarian way and "was extremely rude and short".
The Police Commissioner maintained that the Commission should accept the evidence of Mr Kumar, despite Mr Nath's submissions to the contrary. She argued that Mr Kumar's statement could not be excluded or disregarded by the Commission, as it formed part of the Police Commissioner's reasons for making the Order, which the Commission is required by the Police Act to consider. The Police Commissioner further submitted that Mr Kumar's evidence was "largely before the Commission by way of corroboration in Ms Brightwell's evidence". Further, she contended that it was open for Mr Nath to have called or required Mr Kumar to give evidence.
The Police Commissioner submitted that the Commission should accept the assertions made in Mr Kumar's statement over Mr Nath's evidence.
Ms Brightwell gave evidence that her opening words to Mr Nath were: "Hi my name is Zaandra, I am the Director here at Fleet Services". She stated that she was wearing two security passes hanging from the front right pocket of her trousers, which displayed her name. She stated that during the conversation which followed, Mr Nath was "dismissive and arrogant", that he interrupted and spoke over the top of her, that she felt he was attempting to intimidate her, and that his behaviour was "rude, arrogant, argumentative and totally inappropriate". She described Mr Nath's demeanour as "aggressive and unnecessary". Ms Brightwell denied that Mr Nath had apologised to her.
The Police Commissioner submitted that this evidence called into question Mr Nath's contention that he was unaware that he was on a Fleet Services site. The Police Commissioner further submitted that even were the contention to be accepted, it would not excuse his behaviour. On Mr Nath's evidence he was aware that Amtek was a business that provided services to the NSW Police Force and, as such, police officers would regularly have to attend Amtek's premises. Further, Mr Nath's obligations to conduct himself appropriately extended to persons beyond those who are more senior members of the NSW Police Force, to include members of the public.
The Police Commissioner contended that the fact that Mr Nath had already completed a sign-in on arrival at the Amtek premises cast doubt on the safety concerns that he contended arose when asked to provide his mobile number to Mr Kumar.
In her written submissions, the Police Commissioner contended: "60. Further, and as noted above, the corroboration between the statement provided by Mr Kumar and the evidence provided by Ms Brightwell lends further support to a view that Ms Brightwell's evidence should be accepted over that of the Applicant, in circumstances where the Applicant's evidence is not corroborated by any other witness or record. Put differently, Ms Brightwell's version of events has remained consistent and is objectively supported. 61. The Applicant was placed on notice in the Notice that the Respondent was of the view that, at that time, there was no evidence available to suggest either Mr Kumar or Ms Brightwell had any motivation to be untruthful. 62. After noting this specific observation in his Response, the Applicant said he was not suggesting they were being untruthful, but instead may have both been mistaken or had misinterpreted or misunderstood his actions. The Applicant also said the following in the Response: Whilst at no time did I intend to be rude and discourteous, if it came across that way then it could be due to the firm and assertive way I speak (as a police officer trained to assert control over every situation); it was not intentional. 63. In those circumstances the Applicant must be understood as having conceded in his Response that his conduct may have in fact been of such a nature that it could have been perceived to be dismissive, rude, intimidating, belittling and arrogant as alleged against him. 64. The Applicant did not subsequently put forward any motive to lie in his filed evidence, or in cross-examination. 65. The Applicant has not cast sufficient doubt over the evidence of Ms Brightwell, or the factual findings underpinning Allegation 1 more broadly." (Italics in original, footnotes omitted)
The Police Commissioner submitted that the conduct alleged in Allegation 1 constituted misconduct. She argued that the conduct cannot be viewed in a vacuum, but had to be seen in the context of Mr Nath's disciplinary history. That history had included findings of "inappropriate, unprofessional and/or rude behaviour" and warnings to Mr Nath of the need to meet the requisite standards in the future.
The Police Commissioner described as "troubling" Mr Nath's submission that, even were he to be found to have engaged in the conduct alleged in Allegation 1, it would not amount to misconduct. She contended that this assertion supports the conclusion that she could not have confidence in Mr Nath's suitability to remain a police officer and that it is "quite clear that his continued appointment as an officer of the NSWPF poses an unacceptable risk".

[20]

Allegation 2

In relation to the events of 29 June 2021 (see [22(1)] above), the Police Commissioner submitted that on his own evidence, Mr Nath accepted that he had made a medical appointment during work hours, without first having sought Sergeant Cula's permission and/or disclosing his injury to him. The Police Commissioner also relied on evidence given by Mr Nath under cross-examination that when Sergeant Cula approached him to discuss the matter, Mr Nath was "not generally interested in whether or not [he] needed to apply for leave", but rather having made the appointment, Mr Nath would be attending it.
The Police Commissioner submitted that, in light of this evidence, it was "disingenuous" for Mr Nath to state that he intended to seek Sergeant Cula's approval before leaving work.
As to the events on and after 26 July 2021, it is convenient to reproduce the Police Commissioner's written submissions, as follows: "70. The Applicant accepts that he left work that day without seeking approval from Sergeant Cula, or any other supervisor. It is important to note that the Applicant accepted that despite being senior in rank, Sergeant Samcou was not at any time his supervisor. Rather, she was his support person. He accepted that Sergeant Samcou worked in an entirely different business unit. 71. While both he and Sergeant Samcou state that they had a conversation about the Applicant suffering a headache and wanting to leave work early, their versions as to the contents of that conversation differ markedly. The Applicant says the conversation was as follows: Applicant: I have got a migraine due to stress from today's incidents. Samcou: Yogi, you can't carry on working like this. You need to go home, Get rid of your gun, go and change now. Applicant: I will go, but I will have to let Sergeant Cula know. Samcou: Yogi, you can't carry on working like this. Get rid of your gun, change and go, I will speak to Jason Cula. You don't worry, GO. 72. Sergeant Samcou expressly denies using the words attributed to her by the Applicant, and instead says that the conversation was as follows: Applicant: I am so stressed and sick of all of this. Samcou: You've been stressed and anxious for some time. We've talked about it before. Maybe it's time for you to see your doctor and get some time off. Applicant: Yeah, yeah. I know I should, it's a good idea. Samcou: You're not in any state to keep working today. You're going to get back to the office and they'll see you're upset. Please see your doctor and take some time to get yourself together. Applicant: I really have a headache, I think I need to take 2 hours annual leave and go home. Samcou: You do what you need to do. I'm going to speak with Sergeant Cula and tell him what has just happened in the meeting. Go get changed and do what you need to do. 73. Sergeant Samcou's evidence is also that when she told the Applicant, 'do what you need to do', she was referring to him seeking approval from his supervisor before leaving, as required under his IRMP. As noted above, Sergeant Samcou was present with the Applicant when the IRMP was explained to him by Sergeant Cula. She was also the Applicant's monitoring officer under the IRMP. 74. Importantly, Sergeant Samcou denies that the Applicant said he would go and speak to Sergeant Cula, and that Sergeant Samcou suggested to him in response that he did not need to. … 76. The Applicant says that, upon his return to work on 2 August 2021, he had the following conversation with Sergeant Samcou: Samcou: Yogi, did you inform Sergeant Cula about leaving on 26th? Applicant: No, I didn't personally because I couldn't continue to work in those circumstances and you told me that you would inform Sergeant Cula about my leaving. You assured me that you would. Samcou: I am not your supervisor. I am not supposed to tell Sergeant Cula anything... 77. While Sergeant Samcou does not agree with the precise wording of this conversation contained in the Applicant's evidence, she does agree that on 2 August 2021 she made clear to the Applicant that, as Sergeant Cula was his supervisor, he was required to communicate with Sergeant Cula about his intent to leave work on 26 July 2021. 78. The Applicant in fact acknowledged in cross-examination that he was aware that Sergeant Samcou was not in a position to authorise him to leave the workplace on 26 July 2021, and that the obligation fell to him to seek approval to leave the workplace from Sergeant Cula, Senior Sergeant Wood or Inspector McFarlane. 79. The contradiction is apparent. It cannot be reconciled as to why, on the Applicant's evidence, Segreant Samcou would tell or suggest to the Applicant on 26 July 2021 that it was not necessary for him to speak to Sergeant Cula before leaving as she would do it for him, before asking the Applicant on his return to work if he had told Sergeant Cula about his intent to leave and stating, 'I am not your supervisor. I am not supposed to tell Sergeant Cula anything'. … 81. The Applicant has not suggested in his evidence that Sergeant Samcou had any motive to be untruthful during her conversation with the Applicant on 2 August 2021 about the conversation they had on 26 July 2021, and/or in her evidence before this Commission. The evidence of Sergeant Samcou should be accepted over the Applicant. 82. Accordingly, it cannot be accepted that the Applicant had any real basis upon which to believe that Sergeant Samcou had directed him to go home, and/or agreed to seek approval from Sergeant Cula on the Applicant's behalf, as asserted by the Applicant." (Italics in original, footnotes omitted)
The Police Commissioner submitted that Mr Nath's conduct amounted to misconduct. Consistent with her submissions in respect of Allegation 1, she contended that Allegation 2 must be viewed in the context of Mr Nath's other conduct, including his disciplinary history. The Police Commissioner submitted that the admitted conduct, in the context of Mr Nath being on an IRMP where he was required to not only be on his best behaviour, but had express directions with which he was required to comply, amounted to misconduct.
The Police Commissioner further submitted that Mr Nath "was not only put on notice of what was required of him by way of the IRMP, but also by Acting Inspector Wood's verbal and written directions. Instead of complying with the direction clearly expressed to him, he again acted with at the least reckless and careless, and at the worst intentional, disregard for that direction."

[21]

Mr Nath's disciplinary history

In relation to the Denied Disciplinary History, the Police Commissioner submitted in her closing written submission: "109. The Applicant must do more than simply deny the allegation. He is required to put forward cogent and compelling evidence in order to persuade the Commission that the disciplinary action had no reasonable foundation. He has failed to do so. 110. In light of this failure, the Respondent was not obliged to put forward evidence to establish those historical findings. 111. To the extent the Applicant now suggests that evidence obtained as part of the various departmental investigations would undermine the findings made against the Applicant, it was incumbent on the Applicant to include that material in his filed evidence. 112. It was open to the Applicant to issue a Summons to Produce on the Respondent to obtain a copy of that material so that he could include it in his filed evidence (to the extent he did not already have that material). Again, he failed to do so. 113. Further, it was incumbent on the Applicant to call witnesses or file documentary evidence to support his contentions in an attempt to persuade the Commission that any of the disciplinary action listed above was taken without reasonable foundation. 114. The Applicant has not met his evidentiary burden with respect to the elements of his disciplinary history which he denies, and as such this history should remain undisturbed. 115. The Commission should be cautious in adopting the approach advanced by the Applicant. To simply assert a denial, in evidence and submissions, without undertaking the kinds of steps set out above, would impermissibly shift the evidentiary burden." (Emphasis in original)
As to the Admitted Disciplinary History, the Police Commissioner contended that nothing put forward in Mr Nath's submissions mitigated his conduct or reduced his culpability regarding the past, admitted misconduct.
The Police Commissioner submitted that Mr Nath's disciplinary history was "squarely relevant to the public interest considerations the Commission must have regard to in its deliberations" and that the disciplinary history "must be given due weight in those deliberations so as to protect the integrity of, and public confidence in, the NSWPF".

[22]

Harsh, unreasonable or unjust

The Police Commissioner submitted that the Commission could not find that the Order was unreasonable and/or unjust, as Mr Nath had not discharged his onus of disproving the conduct the subject of Allegations 1 and 2; had not established that Allegations 1 and 2 did not amount to misconduct; had not established that any of the historical disciplinary action taken against him did not have a reasonable foundation; and, had not raised any matters which sufficiently mitigated his conduct with respect to his disciplinary history.
The Police Commissioner submitted that the consideration of harshness must be undertaken within the context of the Police Act, and in particular s 181F(3).
On the question of Mr Nath's interests, the Police Commissioner submitted that: 1. Mr Nath's submissions as to the impact of his age on finding alternative employment are belied by the evidence that within three months of his removal from the NSW Police Force he secured employment as a bus operator. The fact that this employment may not be Mr Nath's preferred occupation is of no relevance; 2. Mr Nath's oral evidence that he currently earns between $65,000 and $70,000 per annum as a bus operator needed to be approached with caution in the absence of him having adduced corroborating evidence; and 3. Mr Nath's submissions as to the financial hardship imposed on him by his removal from the NSW Police Force needed to be viewed in light of his evidence that he continued to own six investment properties, none of which he had been required to sell as a result of his removal. It followed that Mr Nath's financial position was not as precarious as his written evidence suggested.
The Police Commissioner submitted that Mr Nath had failed to establish that his removal was harsh in its impact on his personal circumstances.
In relation to the public interest, the Police Commissioner submitted: 1. There is significant public interest in the community having confidence in the NSW Police Force, including in the conduct and integrity of police officers. That confidence would be undermined were police officers permitted to repeatedly fail to meet the standards of behaviour and conduct required of them, despite receiving warnings and opportunities to correct such behaviour and conduct. 2. Mr Nath has demonstrated no insight or responsibility for his actions. To the contrary, instead of accepting responsibility, he has presented a misleading and at times untruthful account, both to the Police Commissioner and to the Commission. 3. There is a substantial public interest in police officers displaying the highest standards of integrity. A person with the requisite levels of integrity in Mr Nath's circumstances would have acted with candour and accepted responsibility for their conduct, not advanced an untruthful recollection of the facts, or attempted to shift blame. 4. In light of Mr Nath's failure to conduct himself appropriately despite having received numerous warnings, the Commission could have no confidence that, if reinstated, there would be any improvement in Mr Nath's conduct in the future.
The Police Commissioner submitted that having regard to these matters, Mr Nath had not discharged his onus of proving that his removal from the NSW Police Force was harsh, unreasonable or unjust. She contended that the Application should be dismissed.

[23]

Whether a finding of misconduct is necessary

One of the grounds on which Mr Nath relied was that the conduct alleged in respect of Allegation 1 (if it is found to have occurred) and Allegation 2 did not amount to "misconduct" within the meaning of s 173 of the Police Act. In his closing written submissions, Mr Nath explored a number of authorities going to the meaning of "misconduct", including in the context of the Police Act.
The Police Commissioner engaged with those submissions in her closing written submissions. She also traversed several authorities to assert that Mr Nath's conduct did amount to misconduct. She further contended that Mr Nath's refusal to accept that he had engaged in conduct suggested a lack of insight into, and remorse for, his behaviour.
It is not clear to me how the question of whether Mr Nath engaged in misconduct within the meaning of s 173 is directly relevant to these proceedings. The Order was not made pursuant to that section, but pursuant to s 181D(1) of the Police Act, following the Police Commissioner having determined that she had lost confidence in Mr Nath's suitability to continue as a police officer on the grounds of his "competence, integrity, performance and conduct". That determination did not require a finding that Mr Nath had engaged in misconduct for the purposes of s 173.
Significantly, neither the Order or the Statement of Reasons asserted expressly that Mr Nath engaged in "misconduct". Rather, the Police Commissioner found that he had engaged in the conduct underpinning Allegations 1 and 2. She found, in turn, that this conduct was contrary to relevant provisions of the Police Act, the Police Regulation, the Policy Statement, the Guidelines and/or the Code of Conduct (as outlined above). It was not necessary for Mr Nath to have been found to have engaged in misconduct, within the meaning of s 173 or otherwise, for those findings to have been made.
For these reasons, I do not consider that the question as to whether Mr Nath's conduct in respect of Allegations 1 and 2 constituted misconduct for the purposes of s 173 of the Police Act is germane to the matters requiring determination in these proceedings. Consequently, I will not further explore, or express a conclusion on, the cases advanced by the parties in this respect.

[24]

Allegation 1

I have had regard to the statement of Mr Kumar contained in the Commissioner's Confidence Documents, despite Mr Nath urging me not to. The evidence of Mr Kumar is necessarily before the Commission as forming part of the basis for the Police Commissioner's decision to make the Order. The Commission, in my view, is bound by s 181F(1)(a) of the Police Act to consider that evidence.
The failure by the Police Commissioner to call Mr Kumar to give evidence may give rise to a question as to the weight to be attached to Mr Kumar's statement. However, Mr Kumar's statement is corroborated by, and is corroborative of, the evidence of Ms Brightwell. I am not satisfied that there is a basis on which Mr Kumar's evidence ought not to be afforded significant weight.
I accept the evidence of Ms Brightwell as to her interaction with Mr Nath. She was an impressive witness who was forthright in answering the questions put to her, which she did without any appearance of reluctance or dissemblance. I do not accept Mr Nath's characterisation of Ms Brightwell's evidence as exaggerated or unduly critical of him. She denied this suggestion when it was put to her in cross-examination, stating that "if anything" her "level of upsetness [sic]…has diminished". I found this evidence persuasive.
In preferring Ms Brightwell's evidence over that of Mr Nath I have had regard to the equivocal nature of the case that he advanced. On the one hand, he denied engaging in behaviour that was rude or discourteous, and disputed the characterisations given by Mr Kumar and Ms Brightwell to his conduct. However, he accepted that he might have "come across that way" due to his "firm and assertive" demeanour as a police officer and his choice of words. To the extent that Mr Nath appeared to concede that he may have been perceived by Mr Kumar and Ms Brightwell in the manner they described, it is possible to accept their evidence without having to consider issues of credibility.
The Police Commissioner adduced into evidence CCTV footage of the interactions between Mr Nath, Mr Kumar and Ms Brightwell. It did not include an audio recording. There are periods in which Mr Nath and/or Ms Brightwell go off screen.
It is difficult to see from the footage that Mr Nath had the demeanour or body language described by Ms Brightwell, while at the same time she does not appear to be gesticulating as aggressively as he described. It might be possible to view the footage in a way that reflected the evidence of either of them, or indeed as reflecting an entirely benign exchange.
Significantly, neither Mr Nath nor Ms Brightwell were taken to the footage. I am left to draw my own conclusions without any assistance from the individuals who appear in it. In the circumstances, I have had little regard to the footage in reaching my decision.
I accept that Mr Nath may initially have been unaware that when he first encountered Mr Kumar and Ms Brightwell he was on a NSW Police Force site. I am mindful that Mr Lucaci gave evidence that he instructed Mr Nath "to go to Fleet Services…located at Amtek premises" and then "go to the Police section", although there was a conflict in the evidence in this regard. I am also mindful that Ms Brightwell gave evidence that when she first encountered Mr Nath she introduced herself as the Director of Fleet Services and was wearing photo identification. Given that Mr Nath's evidence rose no further than stating that he did not remember either the introduction or the identification, Ms Brightwell's positive recollection is to be preferred.
Regardless of that evidence, there is no controversy that Mr Nath and Senior Constable Jorgensen first attended the wrong address (being the former Amtek location), before being redirected to the new location.
Further, Ms Brightwell's evidence is in part consistent with that of Mr Nath, as suggesting that he may have been unaware that he was on a NSW Police Force site. In a statement included in the Commissioner's Confidence Documents, Ms Brightwell stated: "8. …At some point during the back and forth conversation I asked [Mr Nath] if he could help me understand what his concern was in providing his personal mobile number to complete the manual check-in given the information stays within NSWPF & Service NSW. He paused, looked around the car park and I advised him he won't see any signs as this is a discreet [sic] NSWPF site. He responded along the lines of… 'oh, you moved from Minto?' … 10. I returned to [Mr Nath] to start explaining that [the Changeover Reception and Quality Assurance Team Leader] would be with him soon to complete the changeover outside. [Mr Nath's] attitude had switched completely, again stating that he didn't realised this was a police site."
Mr Nath submitted that his confusion or misapprehension provided context to his reluctance to provide Mr Kumar with his mobile telephone number. The Police Commissioner submitted that there was no force to this arguments in light of Mr Nath's evidence that on his arrival at the Amtek premises he provided the necessary details to the staff at reception. However, there is no evidence that those details included Mr Nath's personal mobile number. Under cross-examination, Mr Nath stated that he could not remember what information he provided.
Even accepting that Mr Nath was initially acting under a misapprehension that he was on an Amtek site, and not one operated by Fleet Services, which might have explained his reluctance to provide his personal mobile number to Mr Kumar, it does not excuse him behaving in the manner in which I find he did engage.
Mr Nath sought to place weight on his evidence that he had at least twice apologised to Ms Brightwell. For her part, Ms Brightwell denied having received any apology from Mr Nath. It is not necessary to resolve that controversy. Taking Mr Nath's evidence at its highest, he cannot be seen to be apologising for having been rude or discourteous to Ms Brightwell (or Mr Kumar), so much as expressing regret for the misunderstanding and his resultant reluctance to provide his personal details. His apologies are not expressions of remorse for having engaged in inappropriate behaviour.
I find that Mr Nath has not met his onus to call into question the findings of the Police Commissioner that he engaged in the conduct alleged against him in Allegation 1.
As to whether the conduct amounted to a breach of s 7 of the Police Act, the Policy Statement, the Guidelines and the Code of Conduct, as asserted in the Statement of Reasons, Mr Nath submitted in his closing written submissions: "42. The Applicant submits that dismissive, rude, intimidating, belittling, and arrogant behaviour which is highly subjective and of variable degrees does not amount to a breach of the following: a. s 7 of the Police Act which is concerned with integrity, personal satisfaction, and the exercise of authority. b. The Respectful Workplace Behaviours Policy Statement, which is concerned with behaviour that amounts to bullying, discrimination harassment, vilification or victimisation towards other employees and interacting with others in a professional, courteous, and polite manner that does not interfere with the health, safety, and comfort of others. c. Point 1 of the Code of Conduct and Ethics, which is concerned with honesty, and integrity. d. Point 3 of the Code of Conduct and Ethics, which is concerned with knowing and complying with all policies, procedures and guidelines that relate to an officer's duties. e. Point 4 of the Code of Conduct and Ethics, which is concerned with treating everyone with respect, courtesy, and fairness and in acting with fairness and impartiality."
I do not accept those submissions. On any analysis, the behaviour in which Mr Nath engaged was inappropriate and contrary to each of the provisions identified by the Police Commissioner in the Statement of Reasons.
I am not persuaded that the Order was unjust or unreasonable in so far as it was based on the findings of the Police Commissioner in respect of Allegation 1.

[25]

Allegation 2

The issue for determination in respect of Allegation 2 is whether the conduct alleged against Mr Nath, which he admitted, was contrary to s 7 of the Police Act, the cl 8 of the Police Regulation and points 1, 3, 4 and 5 of the Code of Conduct, as asserted in the Statement of Reasons. Mr Nath stated in his closing written submissions that he "relies upon mitigating factors which he submits reduce his moral culpability and mitigate the seriousness of his admitted conduct".
Distilled to its essence, Mr Nath's case was that he had left work on 26 July 2021 under the genuine, but now admittedly mistaken, belief that Sergeant Samcou had "informally directed" him to leave and that she would inform Sergeant Cula that he had left the workplace, and that there was consequently no need for Mr Nath to speak to Sergeant Cula to obtain approval to leave. This was put in the context of Mr Nath being unwell, distressed and visibly upset as a result of attending a meeting earlier in the day with Sergeant Cula and Senior Constable Lucaci in which he had been accused of lying and sworn at (which itself was said to be a continuation of Mr Nath being bullied by Sergeant Cula) and having had subsequent meetings with Senior Sergeant Wood and Inspector MacFarlane.
In his evidence and under cross-examination, Sergeant Cula denied that he swore at Mr Nath during the meeting on 26 July 2021. Mr Lucaci gave evidence to the same effect. On the weight of the evidence, I do not accept that Sergeant Cula swore at Mr Nath during their meeting, but I accept that the messages conveyed to Mr Nath would have been confronting and may have upset him.
Sergeant Samcou denied having the conversation as described by Mr Nath and reproduced at [51] above. In particular, she denied under cross-examination that Mr Nath said words to the effect that he proposed to let Sergeant Cula know he was leaving.
While Sergeant Samcou appears to have encouraged Mr Nath to leave work that day, she stated that she twice said to him to "do what you need to do", by which she said she was referring to the need for him to obtain approval to leave work in accordance with his IRMP and the directions that he had previously received. As Mr Nath's "monitoring officer" under the IRMP, and having been his support person in the meetings earlier on 26 July 2021, it is credible that Sergeant Samcou would have been alert to the need for Mr Nath to comply with those requirements. Mr Nath accepted under cross-examination that Sergeant Samcou had been present with him when he was given the IRMP and had it explained to him.
I acknowledge that Sergeant Samcou described Mr Nath as being "distressed" after the meeting with Inspector MacFarlane and that he was "not doing well". However, it can be inferred from her evidence that she considered him well enough to recall and comply with the obligations on him.
Mr Nath accepted under cross-examination that Segreant Samcou could not authorise him to leave the workplace on 26 July 2021. He accepted that the obligation fell on him to seek approval to do so from either Sergeant Cula, Senior Sergeant Wood or Inspector MacFarlane. As much as Mr Nath may have been upset on the day, I have difficulty accepting that in light of his disciplinary history, the terms of his IRMP and the directions that had been issued to him by Senior Sergeant Wood on 5 July 2021, he would have considered that Sergeant Samcou could or would, in effect, seek approval to leave on his behalf (and in his absence).
It does not stretch credulity to suggest that Mr Nath may have decided to leave the workplace without first having obtained approval. On 29 June 2021, Mr Nath had made a medical appointment which required him to leave work early, without first seeking approval from Sergeant Cula. It was clear from Mr Nath's evidence under cross-examination that when Sergeant Cula approached him about the matter on that day, Mr Nath's position was that he would be attending the appointment, irrespective of whether or not approval had been applied for or was granted.
In his closing written submissions, Mr Nath submitted: "66. The Applicant submits that the circumstances of the breach of the Interim Risk Management Plan and breach of the direction by Snr Sgt Wood do not amount to a breach of the following: a. s 7 of the Police Act, which is concerned with integrity, personal satisfaction, and the exercise of authority. b. cl 8 of the Police Regulation, which is concerned with the performance of duties by police officers and their strict compliance with the Police Act and Police Regulation and promptly complying with all lawful orders. c. Point 5 of the Code of Conduct and Ethics, which concerns the compliance with lawful and reasonable directions in circumstances where the Applicant believed that Sgt Samcou would inform Sgt Gula on his behalf."
For the reasons set out above, I do not accept these submissions. I am not persuaded that the Order was unjust or unreasonable in so far as it was based on the findings of the Police Commissioner in respect of Allegation 2.

[26]

Mr Nath's disciplinary history

I have reproduced above the Disciplinary History Ruling that I delivered orally on 28 November 2023, the second day of the hearing. Without detracting from that ruling, it should be emphasised that to the extent that the Commission can examine the basis of a police officer's disciplinary history in proceedings brought under s 181E of the Police Act, it must do so in a manner consistent with the scheme established by that Act.
Two matters in particular arise as a consequence. First, the Commission's consideration of an officer's disciplinary history must be conducted in the context of the applicant at all times having the burden of establishing that their removal from the NSW Police Force was harsh, unreasonable or unjust, as made clear by s 181F(2).
Second, the consideration of whether historical disciplinary action was taken "without reasonable foundation" does not, and in my view cannot, involve a process akin to a review under s 174 of the Police Act. The Act provides the means by which an officer can seek a review of reviewable action. If an application for review was made, proceedings under s 181E cannot be used as a means to have a "second bite of the cherry". If the officer elected not to make such an application at the time, the proceedings should not be seen as a means by which an officer can revisit their decision. In respect of non-reviewable action, it suffices to observe that allowing for a process akin to a review under s 174 would be would be inconsistent with the statutory scheme.
I do not accept Mr Nath's submissions that the Denied Disciplinary History should not have been taken into account by the Police Commissioner when making the Order. For the reasons which follow, I find the Police Commissioner's submissions referred to at [108] and [110] above to be more persuasive.
Having regard to the onus on him, to the extent that Mr Nath contended that the Police Commissioner's regard to the Denied Disciplinary History rendered the Order harsh, unreasonable or unjust, it was necessary for him to establish that the relevant disciplinary action was taken "without reasonable foundation". This necessarily requires an understanding of the "foundation" on which the disciplinary action was taken, including the reasons for which, and possibly the process by which, the decision to impose the action was made. It would then be necessary for Mr Nath to demonstrate why that "foundation" was to be impugned.
Mr Nath's case did not rise to that level. He denied engaging in the conduct on which the relevant disciplinary action was taken. He provided narratives of what he said occurred at the relevant times, which were put forward as exonerating him from blame. He asked the Commission to accept his narratives as accurate - and by extension conclude that the disciplinary action was imposed without reasonable foundation - by reason of the fact that Police Commissioner did not lead evidence to justify the disciplinary action. In essence, he contended that it was for the Police Commissioner to demonstrate that there was a reasonable foundation for the disciplinary action in response to Mr Nath's denial of misconduct and his evidence as to what he said transpired at the relevant time.
This approach does not reflect the onus that Mr Nath bears under s 181F(2). If it were adopted it would amount, as the Police Commissioner submitted, to an impermissible reversal of the onus of proof.
Further, the Denied Disciplinary History comprised a Commander's Warning Notice and a Conduct Management Plan. Both were described, and accepted by Mr Nath, as being "non-reviewable action" within the meaning of s 173(1) of the Police Act. Having regard to my observations at [151] above, Mr Nath's submissions appeared to require a determination of more than whether the Denied Disciplinary History was taken "without reasonable foundation", but that the disciplinary action was unfair or that matters underpinning it were not made out on the balance of probabilities. These are findings that are not required to be made in the present context, as Commissioner Constant made clear in Flynn v Commissioner of Police at [53] (reproduced at [72] above).
For these reasons, I am not persuaded that the Order is rendered unreasonable or unjust as a result of the Police Commissioner having had regard to the Denied Disciplinary History.
Consistent with my observations in the Disciplinary History Ruling at [77] above, I find that there is no substance to Mr Nath's submissions in relation to the Admitted Disciplinary History. His arguments misapprehend the nature of these proceedings.
Mr Nath submitted that his evidence regarding the Admitted Disciplinary History goes to the question of the weight that the Commission ought to attach to the relevant disciplinary action. This suggests that in these proceedings the Commission is to stand in the shoes of the Police Commissioner to determine whether or not an order under s 181D(1) of the Police Act ought to be made. As I have already observed, that is not the role of the Commission. The task before the Commission is to determine whether the Order, having been made, was beyond power or harsh, unreasonable or unjust.
Even were Mr Nath's submissions to be seen as being directed to the question of the weight that ought to have been given to the relevant disciplinary action by the Police Commissioner, there is a significant hurdle: there is nothing to indicate precisely what weight the Police Commissioner placed on any particular item in Mr Nath's disciplinary history. It is apparent that the Police Commissioner laid emphasis on the two Commissioner's Warning Notices, but this is not of itself a sufficient basis on which the Commission could determine that inappropriate weight was placed on that disciplinary action rendering the Order harsh, unreasonable or unjust.
For these reasons, I am not persuaded that the Order is rendered unreasonable or unjust as a result of the Police Commissioner having placed weight, or undue weight, on the Admitted Disciplinary History.
In Bobin v Commissioner of Police [2019] NSWIRComm 1068 at [191], Commissioner Constant (as she then was) placed significance on an applicant's disciplinary history, noting that he "has time and time again, been given opportunities and chances, and he has not taken or heeded the warnings given to him previously, and he has put himself in [this] position time and time again". Similar observations can be made about Mr Nath.
For these reasons, I find that there is force to the following contentions in the Police Commissioner's closing written submissions: "140. In that respect, it is relevant to note the subject of Allegations 1 and 2 occurred after the Applicant was squarely placed on notice, by the Commissioner's Warning Notice served upon him on 25 October 2019, that further misconduct would not be tolerated, with that document saying the following: ...I want to make it abundantly clear that this will be your final opportunity to prove to me that you can consistently meet the standards of conduct and integrity expected from all sworn police officers. Let me reinforce to you, in the strongest terms possible, that if your integrity is called into question, if you engage in misconduct, if you fail to perform your duties to the required standard, or to demonstrate the competence required of you in the future, I do not see how I could retain confidence in your suitability to remain a police officer. (emphasis added) 141. The Applicant squandered that final opportunity by engaging in further misconduct not only once, but twice. Significant weight should be afforded to this." (Italics and bold in original, footnote omitted)

[27]

Mr Nath's interests

Mr Nath attested to the NSW Police Force on 12 May 2000. At the time of his removal he had more than 22 years service in the NSW Police Force. Mr Nath submitted that the "specialist nature of his skills…make it difficult for him to find suitable alternative employment".
Mr Nath gave evidence of having received numerous "complimentary remarks" and "complimentary letters" during his service. He received a Certificate of Appreciation in 2009, the NSW Police Medal in 2012 and a "COPS Sesquicentenary citation" in 2013.
Mr Nath is 59 years of age. He has a teenage son for whom he pays child support. In his first statement, Mr Nath stated: "My Investments and Financial Pressures 18. I am living in a rented apartment…which I share with a flatmate. 19. I own 6 mortgaged investment properties on the Central Coast and Cessnock. The total of my mortgage owing is about $1.5 million. These properties are my retirement fund. 20. Since being removed from the Police Force in September 2022, I have applied for various jobs. I haven't been successful in getting a job that would pay me similar income, which I need or I stand to lose my investments. I will not be able to get any refinance without a well-paid job. This has created financial anxiety and hardship for me."
Mr Nath's length of service with the NSW Police Force cannot be viewed in isolation from his chequered disciplinary history. That history significantly compromises the weight that otherwise might be attached to a tenure of more than 22 years.
As to the difficulties that Mr Nath might face in securing alternative employment, he gave evidence under cross-examination that he had taken up employment as a bus operator "just under a year" before giving evidence on 28 November 2023. As he was removed from the NSW Police Force on 19 September 2022, it can be inferred that he obtained this employment within a few months of his removal.
An inference can also be drawn from Mr Nath's submissions that the position of bus operator (which was Mr Nath's job before joining the NSW Police Force) may not be regarded by him as "suitable alternative employment" and that he may not currently be earning a "similar income" to that he was earning as a police officer. Mr Nath led no evidence as to his current earnings, but stated under cross-examination that he earns $65,000 to $70,000 per annum. It is relevant that Mr Nath's change in circumstances has not affected his property holdings.

[29]

Conclusions

I have found that Mr Nath engaged in the conduct alleged in Allegations 1 and 2. That conduct was unacceptable. There may have been room for doubt as to whether, on their own, Allegations 1 and 2 would have warranted the removal of a police officer with more than 22 years of service, but they do not stand in isolation. They must be viewed in light of Mr Nath's considerable disciplinary history where he was given every opportunity to improve his behaviour to the standard expected of him and warned in clear terms of the consequences of failing to do so.
To adopt the language of Tredinnick, quoted at [15] above, Mr Nath has not persuaded me that the reasons for his removal as provided by the Police Commissioner are flawed or defective. I find that Mr Nath has failed to demonstrate that the Order was unjust or unreasonable.
In his closing written submissions, Mr Nath contended that the Order "was beyond power or unjust to the extent that it is was grounded on Allegation 1, as the evidence establishes that Mr Nath did not engage in the conduct alleged against him". Mr Nath did not further elaborate on this submission in his written or oral submissions.
I have significant reservations as to whether the Order could be said to be "beyond power" on the basis contended by Mr Nath, but it is not necessary to explore that issue. To the extent that Mr Nath's submission rests on the contention that he did not engage in the conduct underpinning Allegation 1, my earlier findings are sufficient to dispose of it. I find that the Order was not beyond power.
On the question of harshness, I accept that Mr Nath is aggrieved at being removed from his chosen occupation and that there may have been adverse financial consequences for him as result of that removal. It does not follow, however, that the Order was harsh. I note the following observations of Staunton J in Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88, to which the Police Commissioner referred me: "94. While on the issue of removal being too harsh in its consequences, it can hardly be denied that the removal of a person from his or her employment, whether it be as a police officer or otherwise, would have harsh economic as well as personal consequences for that individual. The proper approach must surely be that, given the particular facts and circumstances relied upon to justify the person's removal or termination from the workforce, the removal or termination is too harsh given the personal and economic consequences that such a decision brings. In other words, there may well be occasions when the facts and circumstances relied upon to remove or terminate an employee are justified notwithstanding the harsh personal and economic circumstances that may arise. Ultimately, it is a matter to be taken into account in the overall balancing exercise that s 181F(3) requires."
In Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 (in the context of s 84 of the Industrial Relations Act 1996) the Full Bench observed (at [35]) that harshness involves a consideration of "whether the dismissal was disproportionate to the gravity of the misconduct both in itself and when examined in the light of mitigating circumstances including the personal and economic circumstances of the [applicant]".
In all the circumstances, and particularly having regard to the discussion at [164]-[169] above, I am not persuaded that Mr Nath's removal from the Police Force was disproportionate to the gravity of his conduct. I find that Mr Nath has failed to demonstrate that the Order was harsh.
Having determined that the Order was not harsh, unjust or unreasonable, the only appropriate order is that the Application be dismissed.

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