Police Association of New South Wales (on behalf of Myers) -v- Commissioner of Police [2005] NSWIRComm 148

Industrial Relations Act 1996 LEGISLATION CITED: Police Act 1990

HEARING DATES: 10/13/2004; 12/03/2004; 01/27/2005; 02/21/2005; 04/11/2005; 04/13/2005; 04/15/2005; 04/26/2005

Mr M Gibian of counsel instructed by Jones Staff and Co (Mr A Howell) LEGAL REPRESENTATIVES: Mr R Reitano of counsel instructed by NSW Police Legal Services (Ms M Buchannan)

• 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Police Association of New South Wales (on behalf of Scott Myers) and Commissioner of Police

Application by Police Association of New South Wales on behalf of its member Scott Myers re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Scott Myers (the applicant) commenced employment as a probationary constable on 1 September 2003. He was attached to Kuring-gai Local Area Command and throughout his employment, was stationed at Hornsby Police Station. 2 Mr Myers employment was terminated by letter dated 3 September 2004 and served upon him on 7 September 2004. He had previously been served with a notice to show cause why his employment should not be terminated under s 173 (3) of the Police Act 1990 and there had previously been extensive internal investigation and enquiry into the matters raised against him. 3 It is alleged by the applicant that his dismissal was such as to warrant the Commission's intervention under Pt 6 Ch 2 Unfair Dismissals of the Industrial Relations Act 1996 (the Act). At the conclusion of and contrary to his evidence, the applicant abandoned his claim for reinstatement or re-employment thus limiting the relief sought to monetary compensation. 4 The letter of termination was relevantly expressed in the following terms:- Order Pursuant to Section 73(3) Police Act 1990 I, Garry A. Dobson, Assistant Commissioner, Commander Education Services having considered your conduct and performance referred to below, am of the view that you should be dismissed from employment as a probationary constable with the New South Wales Police pursuant to Section 73(3) Police Act 1990. By this Order I remove you from the New South Wales Police. In reaching my decision I have given careful consideration to the matters in the Show Cause Notice. I refer to having considered the response of your solicitor on your behalf dated the 18 August, 2004 to the Show Cause Notice. In light of those submissions, I have withdrawn all but the last two incidents mentioned at (b) in the said Show Cause Notice. I am satisfied that the following incidents demonstrate your failure to meet the standards required by NSW Police for you to be confirmed to hold the office of Constable of Police and further, you are not fit to be a member of the New South Wales Police, namely - a) On the 31 March, 2004, you were involved in a motor vehicle accident in Edgeworth David Avenue, Hornsby, which was so severe in impact, that irreparable damage was caused to the police vehicle. A subsequent investigation revealed four adverse findings, namely; · that you as driver of the said police vehicle drove at an excessive speed, in contravention (sic) your bronze driving classification, which caused the undercarriage of the vehicle to come into contact with the roadway; · that by your actions you caused damage to a departmental vehicle · that you were untruthful during this particular said investigation; and · that following your interview in relation to this incident, you disclosed to Constable Fitzgerald certain particulars of the interview, in contravention of a directive not to do so given to you by Acting Inspector Robinson. b) Since commencing duties at Ku-Ring-Gai Local Area Command on 1 September, 2003 following your attestation, incidents have arisen which give rise to your conduct and integrity and your level of commitment to be a member of the New South Wales Police: · In November, 2003, you requested a period of time off to allow you the opportunity to travel to Tasmania due to some personal problems. I have been told (sic) the roster officer that if you could not get the time off, you would get a medical certificate to support your absence due to stress. You in fact reported off sick on the 21 November, 2003 for a period of two weeks and the medical certificate which you provided stated your absence was due to anxiety. A call to your father on the 24 November, 2003 indicated that you were in Tasmania. · you requested Saturday 10 January, 2004 and Sunday 11 January, 2004 as rest days. This request could not be facilitated. During your shift of the 10 January, 2004 you reported off sick. That sick leave extended to include your shift on 11 and 12 January, 2004. On the 11 January, 2004 you were seen to participate in a surfing contest at Catherine Hill Bay. Your dismissal takes effect from the date of this order. 5 As to the allegations contained in a) above, it is reasonably clear as I view the evidence and to be fair to the applicant it is either admitted or not strenuously denied that, as a probationer with a bronze driving classification, he was not authorised to operate the police vehicle in excess of the legal speed limit and that he did so on 31 March 2004 causing the vehicle to bottom out and sparks to fly from the vehicle undercarriage at the intersection of Edgeworth David avenue and Albert Street, Hornsby. 6 The applicant said he later inspected the vehicle undercarriage and saw no sign of damage in the form of broken components or leaking fluid or the like. He said the vehicle drove normally for the remainder of the shift. His observer at the time was Constable Fitzgerald who later observed in conversation with another police officer Constable Mason that the impact with the road surface was significant. The incident was not recorded in the vehicle log book and neither the applicant nor Constable Fitzgerald sought to have the vehicle tested for mechanical soundness following the incident. 7 The vehicle was thereafter used by other police on a number of subsequent shifts and ultimately passed in as being unroadworthy on 2 April 2004. It was taken to a repairer, assessed as being irreparable for insurance purposes and written off. 8 Following the completion of his shift on 31 March 2004 the applicant departed on two weeks annual leave. On 13 April 2004, he was called into Hornsby Police Station and questioned formally about "the significant mechanical and structural damage occasioned to Police vehicle Kuring-Gai 39, Serial No. 63876 which occurred on or before 1 April 2004." He was directed in the process, not discuss the matter with others, a directive which he admits breaching albeit not in a way which threatened the integrity of the enquiry being conducted. 9 As a precursor to formal questioning, the applicant was directed to provide a written report detailing his knowledge of the matter under investigation. He did so in the following terms: ISSUE: Damage occasioned to Kuring-Gai, Serial No. 63876 BACKGROUND: On the 30th of March 2004 I was rostered to work with Constable Fitzgerald in Kuring-Gai 39. I commenced my shift at 1800 hrs as rostered, at the start of the shift I conducted a vehicle check of all the equipment in the vehicle and the externals of the vehicle including the engine bay, tyres, lights and warning devices. These areas were all in working order. COMMENT: During the shift I was driving the vehicle, the vehicle drove as normal as far as I could determine, as I am not a mechanic or panelbeater. The vehicle did come into contact with some of the speed deterring humps around the area, but I have seen this happen quiet alot (sic) as the suspension appears to be quiet soft when entering and exiting these devices. The only part of the vehicle that appears to come into contact with these humps is the front and rear stone guards or spoilers , I did not hear any loud thuds or feel any bottoming out of the vehicle. At the completion of my shift I did not notice any difference with the vehicles handling or performance, or any noises coming from the vehicle. 10 When it was put to him during formal questioning by Acting Inspector Robinson, the applicant later recalled the vehicle bottoming out in the dip at the intersection of Edgeworth David Avenue and Albert Street, Hornsby, and he later recalled his inspection of the vehicle undercarriage at McDonalds Restaurant, Thornleigh as a result of the incident. 11 He agreed when it was put to him by Acting Inspector Robinson that the reference in his written report above, to speed deterring humps was not a reference to the incident in Edgeworth David Avenue and that his written report therefore lacked any reference to that incident. 12 As the following extract from the record of interview reveals, the lack of any such reference in his written report was canvassed with him during the formal interview as was the fact which he could not initially recall of his conversations with other officers on the same shift at the time of the incident: Q30. Did you have discussions with any other officer during that shift about the incident on Edgeworth David Avenue and your subsequent inspection for damage? A. Not that I recall. Q31. I put it to you that you had conversations with other officers on the same shift during which you detailed a version where the vehicle had bottomed out on Edgeworth David Avenue causing a large impact and sparks to fly from underneath the vehicle. What can you tell me about that? A. I did see some sparks, a small amount of sparks came out. I believe that this could have possibly been from some sort of metal strip in the spoiler areas of the vehicle or possibly from the mounts of the rear sway bar as they hang very low. I think it is the sway bar. Q32. Do you acknowledge then that you had conversations with other officers on the shift about the incident? A. With Constable FITZGERALD as he was my partner in this vehicle and possibly Constable MASON as I think he was at the incident in KU36. I don't recall having any other conversations with anyone else. Q33. Do you agree that the section of the roadway you are referring to on Edgeworth David Avenue cannot be described as a speed-deterring hump. That is, there is no specific device there to deter the speed of vehicles? A. That is correct. Q34. Do you agree that in your report you have completed in response to this directive memorandum you have stated, "The vehicle did come into contact with some of the speed deterring humps around the area." However you made no mention of this incident on Edgeworth David Avenue? A. Yeah I haven't put that in my report. Q35. Can you tell me why this incident was not included in your report? A. At the time of writing the report this morning, I did not recall the incident but just remembered the speed humps or devices, as they were a common occurrence in the scraping of the car. Q36. I put it to you that due to the size of the impact evident by the damage to the car, the sparks flying from the vehicle at the time, the incident causing your subsequent inspection of the vehicle, conversations you had with workmates following the incident and the fact that you contacted two specific officers this morning after my call indicates that you were aware that the damage was occasioned to the vehicle as a result of the incident on Edgeware David Avenue. A. I was not aware of any damage to the vehicle at all. As I stated the vehicle still drove fine and the conversation with the two specific work colleagues was because these two work colleagues are probably the two colleagues I spoke to most both in and out of work, and the only reason I contacted them was to see what it was about. Q37. At the time of the incident on Edgeware David Avenue, did the imapct cause what you would describe as a loud thud? A. Yes there was a thud and I believed this as I stated to possibly be the sway bar mounts. Q38. Would you describe what occurred as the vehicle "Bottoming out"? A. That could have been possible, because as the roadway goes across the traffic lights. Unbeknown to me it appears to dip off suddenly. Q39. Do you agree that in report you supplied in response to the directive memorandum you said, "I did not hear any loud thuds or feel any bottoming out of the vehicle"? A. Yes that is what is in my report, but at the time I did not know if it was a bottom out or not. Q40. Do you agree now that you have related to Inspector JOYCE and I, details on the incident on Edgeware David Avenue, that this statement "I did not hear any loud thuds or feel any bottoming out of the vehicle" is untrue? A. Well it is untrue basically isn't it as at the time of writing I did not recall the incident. Q41. Are you aware of your obligations to report any damage occasioned to a police vehicle during your shift to your supervisor? A. Yes. 13 At a subsequent formal interview on 7 May 2004 and as the following extract from the record of interview reveals, the applicant confirmed that the incident at Edgeworth David Avenue was the only incident which relevantly occurred: Q76. All right. Scott, is there anything further you wish to say about this matter? A. Only that we did come into contact with the roadway, as we bottomed out. This is the only thing that we came into contact in that vehicle the whole night, and as I stated previously the vehicle drove fine for the rest of the shift. And I got down on my hands and knees personally with a torch at McDonald's at Thornleigh, checked under the vehicle, I could not sight any damage.

14 I have little hesitation in observing here that among other things the applicant's recollection of coming into contact with speed deterrent humps on the 30/31 March 2004 shift; his subsequent disavowal of such encounters with speed humps on that night (see above); his initial denial (when composing his written report) of hearing any loud thuds or feeling any bottoming out of the vehicle; his subsequent acceptance when it was formally put to him that such an incident occurred; his initial failure to recall when asked specifically whether he had discussed the incident and its aftermarth with any other officer during that shift; his subsequent acknowledgement that he had in fact discussed the incident with Constables Fitzgerald and Mason are highly suggestive of dissembling and lack of candour and it is hardly surprising that those of the applicant's superiors conducting the investigation into the damage to the police vehicle ultimately chose to view his contribution to the investigation as less than completely truthful. 15 Indeed the boundaries of credibility are stretched even further as I am disposed, by the applicant's continued assertion that he simply forgot about the incident until his memory was refreshed by Acting Inspector Robinson during the formal interview on 13 April 2004 which is and demonstrably so, at odds with his express denial in his written report that an incident of that nature had occurred. 16 The respondent submits with some persuasive force that it is not so much the damage to the police vehicle that counted finally against the applicant or any failure on his part to operate the vehicle within the limits of his bronze driving classification or even his disclosure contrary to a directive given, of particulars of his interview but rather, the real doubts about his integrity and fitness to continue as a serving police officer which are raised by his initial willingness to truthfully disclose the occurrence of the incident at Edgeworth David Avenue on 31 March 2004. 17 These doubts were reinforced by the adverse conclusions formed following the applicant's absences from work in November 2003 and January 2004 both said by the applicant and supported by medical certificates to be for reasons of illness and incapacity for work. 18 As to the first of those absences in November 2003, it is said by the roster officer at Hornsby Police Station that the applicant sought to be rested from duty for a sufficient number of shifts to enable him to travel to Tasmania for a two-week period. The roster officer said and the applicant denies that he had indicated in the absence of approval of his application to be rested from duty, that he would get a medical certificate for stress. At all events, the applicant did submit a medical certificate for stress and went to Tasmania for two weeks. His actions were viewed with suspicion and on return to work he was placed on Probationary Constable Performance Development Plan tailored to address among other things, perceived discrepancies between "proposed reasons" and "actual reasons" for work absence. 19 Clearly, the applicant was not believed by his superiors when he asserted a relationship breakdown which occurred in October 2003 as the cause of stress-related incapacity or at best, it was felt that the degree of coincidence between his failure to obtain approved relief from the roster for the purpose of travel to Tasmania and the emergence of stress related incapacity covering the same period was sufficient to bring the genuineness of his stated incapacity into substantial question. 20 As to the second of those absences in January 2004, the applicant it seems was rostered to perform nightshift duty on the weekend of Saturday 10 January 2004 and Sunday 11 January 2004. He applied to be rested from the roster for the weekend and his application was refused. He attended for duty on the Saturday night and at about 1:30 am on Sunday morning he left work complaining of a gastric illness. He later that day competed as he had done on the Saturday, in a surfing competition at Catherine Hill Bay and did not attend for his rostered shift on Sunday night. After competing in the surfing contest on Sunday, he saw Dr. Valaire who certified him medically unfit for his rostered shift that night. When asked in a formal interview conducted by Superintendent Gallagher about his movements that night the applicant said he was at home with his partner when in fact and as he later said in the course of his evidence in these proceedings, he went to the Catherine Hill Hotel for the trophy presentation and remained there for some hours. He could offer no explanation for his misrepresentation of that fact to Superintendent Gallagher. Again, his actions were viewed by his superiors with suspicion with the consequence that the genuineness of his stated illness and incapacity for work was called into question as was his commitment to his chosen career as a police officer. 21 Notwithstanding such questions, however, the applicant was assessed by his superiors on 23 March 2004 as having satisfied the objectives of the Probationary Constable Performance Development Plan and as having met the prerequisite standard for progression beyond the probationary level. It may be assumed, safely I think, that any such progression was then impeded by the incident involving the police vehicle on 31 March 2004 which culminated in the issuing of a Show Cause Notice on 21 July 2004 and on 3 September 2004, an order dismissing the applicant from his employment. 22 In my opinion and coming quickly to the heart of the matter, it is most improbable that the applicant's failure to initially disclose the incident with the police vehicle on 31 March 2004 was caused by an imperfect memory on his part and I say that after careful consideration of the evidence and the comprehensive and thoughtful submissions of the applicant's counsel. That the applicant would expressly deny hearing any "loud thuds" or feeling any "bottoming out of the vehicle " and then so readily recall the incident when confronted with it at interview is among other things highly suggestive of a deliberate attempt on his part to conceal the incident and although one can never be absolutely certain of such things, I consider in the circumstances of this case that the onus borne by the respondent in making out the allegation of untruthfulness has been discharged to the requisite standard. 23 I would add to that conclusion the general observation that the applicant's conduct in speaking to Constable Fitzgerald about his formal interview and the incident contrary to an express direction by Acting Inspector Robinson and knowing as he did, that Constable Fitzgerald had yet to be interviewed about it, was conduct which further compromised his integrity as a serving police officer and I agree with counsel for the respondent that it is no answer to this allegation that the applicant has not been shown to have collaborated or conspired with Constable Fitzgerald in order to create a consistent version of events as between them or a version of events which was fabricated. The plain fact is that he disobeyed a directive and in so doing considerably affected the integrity of the investigation then being undertaken. By his own admission it was a significant error on his part but it was nonetheless a matter upon which the respondent was entitled to rely in its decision to terminate the applicant's employment. 24 As to the work absences in November 2003 and January 2004, I am of the view that the circumstances of each absence justified the respondent's suspicion as to their genuineness and I do not consider the mere certification by a medical practitioner in each case to be sufficient to overcome such adverse conclusions on the respondent's part. That is not to say, of course, that the medical practitioners knowingly issued false certificates but it is the case and unassailably so that the medical practitioner, the applicant's work colleagues and superiors and the Commission must act according to whether the applicant is accepted as having been candid and frank in the description of the state of his health. 25 It would only be in the most extreme case where a treating doctor rejected a patient's description of symptoms but conversely, it cannot be said that the certificate of a treating doctor acting ethically in the treatment of symptoms presented carries with it a degree of probative value which overbears all other considerations in determining issues such as, in this case, the genuineness of the applicant's complaints. 26 I do not, on balance, consider the respondent's decision to terminate the applicants employment to be tainted by procedural or substantive unfairness and nor do I consider, therefore, that intervention by the Commission is warranted. The application for relief is dismissed accordingly, and the proceedings concluded.

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