Price v Box Valley Pty Limited

APPLICANT Mr A Wright, Police Association of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of Counsel

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Police Association of New South Wales, on behalf of Adam Tregonning, and New South Wales Police Service

Application by Police Association of New South Wales, on behalf of Adam Tregonning, re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 By application, dated 3 June 1999, the Police Association of New South Wales filed for relief, pursuant to s84 of the Industrial Relations Act 1996, on behalf of Mr Adam Tregonning, in respect to his alleged unfair dismissal by the New South Wales Police Service on 14 May 1999. 2 At preliminary proceedings on 18 June 1999, Mr A Wright represented the Association and the applicant and Mr J Vass appeared for the Commissioner of Police. Following an outline of their respective positions, the parties requested an adjournment to exchange documentation and engage in conciliation conferences. 3 A report back was listed for 7 July and private conferences under the Commission's chairmanship were held on 10 August. Following these conferences the Commission issued the following statement and directions: The Commission has chaired conferences with the parties and while at this stage the matters between them seem unresolvable, I nevertheless believe that there may be a further opportunity for further conciliation proceedings to bring this matter to finality. I am also minded of the difficulty this may cause should that not occur in terms of scheduling further proceedings for hearing and so I propose to adopt this course and issue the following directions: 1 That the applicant file and serve any affidavit material upon which the applicant relies by 4pm on 24 August 1999; 2 That the respondent file and serve any affidavit material upon which the respondent relies by 4pm on 14 September 1999;

3 That the applicant file and serve any material in reply by 4pm on 21 September 1999;

4 That an agreed statement of facts in this matter be filed by the parties by 4pm on 24 August 1999.

I propose to reserve two days for hearing, being 18 and 19 October, subject to advice from Mr Vass that counsel for the Police Service will be available at that time. Such other arrangements as may be necessary should those dates not be suitable shall be discussed between the Association representing the applicant and the Commission through my associate. In view of what I earlier said, I propose in the light of the material that will be filed to convene a further conciliation conference at 10am on 30 September. At that time the Commission will seek to have this matter resolved by conciliation but should that not be practicable, the dates that have been discussed and considered for proceedings today, being 18 and 19 October, will be confirmed together with such further dates which may be necessary to set at that time.

4 A further conciliation conference was held on 11 October with the matter remaining unresolved. Accordingly, pursuant to s87 of the Act, I proceeded to arbitration on 18, 19 October, 3 November and 15 December, 1999. 5 Mr Wright called evidence from: Mr Adam Tregonning (Applicant) Senior Constable Craig Campbell Sergeant Rodney Henderson Constable David Longfield Ms Frances Amaroux

Ms Brus of Counsel, for the Police Service, called evidence from : Superintendent Garry Dobson Sergeant Sherif Girgis Senior Constable Joanne Halloway Sergeant Steven Austen Senior Constable Steven Oliver Mr David Bradley (Police Educator) Ms Elyssebeth Leigh (Lecturer and Adult Educator) 6 At the Commission's direction an agreed statement of facts was prepared and filed. Such statement is reproduced below: 1 Adam Tregonning commenced employment with the New South Wales Police Service on 17 November, 1996 as a Student Police Officer entering into the Police Recruit Education Program (PREP). 2 He was attested as a Probationary Constable of Police on 30 May, 1997. 3. He commenced duty as a Probationary Constable at Kogarah Local Area Command on 2 June, 1997, which coincided with the beginning of Phase IV of his PREP. 4. On 3 March, 1998, the Kogarah Local Area Commander was requested to notify Probationary Constable Tregonning of his (Tregonning's) relegation to PREP class 269 by the Chairperson of the Assessment Board of the NSW Police Academy. 5. On 10 March, 1998, having been informed of his relegation, Probationary Constable Tregonning entered into a Performance Enhancement Program (PEP). 6. The duration of the PEP was 12 weeks. 7. The aim of the PEP was to assist Probationary Constable Tregonning develop the level of skills and abilities required to progress to confirmation as a constable of police. 8. On 2 July, 1998 the Kogarah Local Area Commander was requested to notify Probationary Constable Tregonning of his (Tregonning's) relegation from PREP class 269 to 270 by the A/Chairperson, Assessment Board. 9. On 15 July, 1998, having been informed of his relegation, Probationary Constable Tregonning entered into a second PEP. 10. The duration of the second PEP was 12 weeks. 11. The aim of the PEP was to assist Probationary Constable Tregonning develop the level of skills and abilities required to progress to confirmation as a constable of police. 12. On 12 November, 1998, the Education and Development Officer (EDO) of Kogarah Local Area Command, Senior Constable Halloway prepared a report for the information of the Local Area Commander detailing a number of performance issues in relation to Probationary Constable Tregonning's employment with the Command. 13. On 16 November, 1998, the Kogarah Local Area Commander, Superintendent Dobson furnished a report to the Acting Executive Director, Human Resources and Development indicating the Probationary Constable Tregonning represented a significant risk to the organisation and that his services should be terminated. 14. In January, 1999, pending a determination by the Acting Executive Director Human Resources and Development, Probationary Constable Tregonning was placed at the Rockdale Transit Branch. 15. On 22 February, 1999, the Acting Executive Director, Human Resources and Development, issued Probationary Constable Tregonning with a Notice to Show Cause why his services should not be terminated. 16. The issues relied upon in the Show Cause Notice were as follows: i) Failure to submit Case Write Ups on numerous occasions

iii) Failure to repeatedly meet deadlines in relation to major assignments

v) Relegation from two PREP classes vi) Requirement to undertake two Performance Enhancement Programs to address poor performance vii) Failure to comply with requirements of Performance Enhancement Programs

ix) Failure to take appropriate action in relation to a motor vehicle accident which occurred on 19 February, 1998 and your subsequent and repeated failure to carry out further investigations as requested by your supervisors. 17. On 9 March, 1999, Probationary Constable Tregonning replied to the Show Cause Notice. 18. On 9 May, 1999, the Acting Executive Director, Human Resources issued a Notice of Termination to be served on Probationary Constable Tregonning. 19. On 12 May, 1999, the Notice of Termination was served on Probationary Constable Tregonning by the Kogarah Local Area Commander. 20. On 14 May, 1999, Probationary Constable Tregonning services were terminated. 7 There is no dispute that the applicant was dismissed pursuant to s73(3) of the Police Services Act 1990. The power to do so is expressed as follows: (3) The Commissioner may dismiss any such probationary police officer from the Police Service at any time and without giving any reason. 8 Three folders of material relevant to the applicant's employment history were jointly tendered and marked 'Joint Exhibit 1'. The Commission appreciates the degree of cooperation between the parties in respect to the significant amount of material prepared for this case.

The Applicant's Evidence 9 To the extent that much of the evidentiary material was uncontested. I do not repeat it. The applicant, Mr Adam Tregonning, provided oral and written evidence (Ex 1). He did not dispute the chronology of academic and written requirements which he failed to meet, or complete in the required time. 10 His defence, however, was based on:

a) a learning process which was not recognised by the Police Service;

b) a lack of confidence at having been relegated on two occasions;

c) a failure to seek help because of negative responses effecting his self confidence;

d) a learning difficulty in respect to written work;

e) his possession of good operational skills. 11 In Ex 1 he describes his experiences at the Kogarah Transit Unit, where he says he was trusted by his supervisors and performed roles above his rank, without assistance. He related two incidents; one involving two distressed deaf males and the other of a house fire at Arncliffe. 12 In oral evidence, he described his consultations with Ms F Amaroux - a learning expert consulted and called to give evidence on the applicant's behalf. He said he met Ms Amaroux on one occasion, for about 2 to 2 hours, and spoke to her subsequently by phone. He had taken no documentation with him to the meeting. He later performed a learning test for her at his own home. 13 Mr Tregonning was asked about his training at the Police Academy and on the job at Kogarah. He made unequivocal admissions that from the outset, at age twenty, he knew: i) case write ups were to give a probationary constable experience in analysing individual cases and they had to be completed within certain times; ii) that he was required to know how to prepare a brief of evidence and make a proper COPs entry;

iii) he had to demonstrate operational effectiveness;

iv) failure to pass the training might result in relegation and failure to be confirmed as a police officer. 14 He attested that his Higher School Certificate results were not sufficient for him to qualify for admission to the police service. He had undertaken a TAFE course for a year which allowed him entry. However, he said that while he had difficulty with his written work at the Academy, he had been assisted by his peers. 15 In respect to case write ups, he attested that he didn't understand how to do them properly, but didn't ask for any help from his peers or superiors at Kogarah; despite the area command having twenty-four probationers at the time. He described taking pacer tests - a short test involving all aspects of policing - in which spelling was a major issue for him. Similarly with COPs entries, he had trouble with spelling and writing the narrative of the event, or incident, he had participated in, which required the generation of a COPs entry, ie a report. 16 He described the assistance he received from Constable Dave Longfield during his PEPs, which included help writing COPs entries, case write ups and generally submitting written work through him, before it was submitted to the Education Officer. 17 Ms Brus took the applicant to a report of outstanding work dated January 1998. While he originally had claimed his holidays had delayed the submitting of the work on time, he later admitted that it was "most probably" a case of him not wanting to do it. He also admitted not honouring an undertaking to attend to his spelling tests. These circumstances resulted in relegation and his first PEP. 18 He acknowledged that the PEP was designed to help in ensuring that the training requirements were completed and failure to do so might result in dismissal. 19 Part of the PEP included completing self assessment sheets - daily records of activities, responses and reactions in areas which are lacking. Self assessments were handed each day to a supervisor. His failure to fulfil this requirement was because he felt everyone was watching him. He felt he couldn't be trusted and he basically "threw in the towel". 20 Mr Tregonning gave detailed testimony of his case write up resubmits, and his failure to comply with instructions, or ask for help in completing them correctly from his peers or his EDO, Senior Constable Halloway. He accepted that he failed to identify his need for assistance in areas other than time management. On one occasion - despite being a correspondence day, this self assessment report made no reference to any attention given to PEP requirements. 21 In a report in May 1998, the applicant confirmed he had received help from Constable Longfield and that he was not looking for excuses for failing to meet his PEP requirements. 22 He was moved to a new team in June 1998 and said he felt that he could improve with a fresh start. However, a continuing failure to meet requirements resulted in his second relegation and second PEP in July. Prior to this, in a meeting on 16 June, with Superintendent Dobson, Sergeant Austen, Constable Longfield and Senior Constable Halloway, he requested no assistance. He acknowledged that he was told that a failure to comply with his training requirements might result in dismissal. He knew he was having trouble with his PEP and his written work, but made no efforts to talk to anyone, or request any assistance. He was questioned as to an essay submitted on police ethics, which Senior Constable Halloway had made suggestions to improve; however he didn't do so in the re-submit. He passed the essay in any event. 23 One aspect of his second PEP was a study plan. Another was his enrolment in a Kumon course which he said he found "very helpful". Nevertheless, he continued to fail his case write ups. In about August 1998 he was required to do an assignment for the Academy and he was accompanied by Senior Constable Halloway on a special trip to Goulburn to see a Senior Constable Jones. He agreed that the visit was worthwhile and Senior Constable Jones gave him helpful tips in producing the assignment. Senior Constable Jones told him to call if he needed any further advice. He didn't follow up this offer. At this time, other written work was outstanding, including spelling tests, case write-ups and COPs entries. 24 One of these COPs entries, involving a vehicle accident, became statute barred because of his failure to complete it. He agreed he was not completing his self assessments in an honest and prompt manner. 25 At about this time, he began to get sick and felt that he didn't want to come to work. He admitted he wasn't "pulling his weight". Towards the end of his second PEP he was attached to a 'buddy', Senior Constable Oliver. In addition, he had available to him, Senior Constable Halloway who he met weekly, Sergeant Girgis, from the Practicum Support Unit, his union - the Police Association and Senior Constable Jones. He sought help from no one. 26 He conceded, apart from passing the major assignment, there was no improvement from his first to his second PEP. He was then transferred to the transit unit where the bulk of the work was said to be 'proactive'. 27 On 22 February, 1999, he received the 'show cause' letter. He had tendered his resignation on 4 February, but withdrew it on 22 February. He prepared a response to the show cause letter with the help of Sergeant Henderson. There were a number of inconsistencies in his reply to that of his evidence in the case. For example he said - that at no time was he shown where he had performed poorly; his second relegation came not long after being placed on the witness protection program; it was obvious that he needed help; he received little assistance from supervisors or his EDOs. He admitted in oral evidence that these defences were not true. 28 He attested that, while he knew there were different learning styles, and he might have had a problem, the first he heard of the term "kinaesthetic" learning preference was after he spoke to Ms Amaroux. 29 He said that he had applied for a number of jobs since dismissal, but had done nothing to improve his writing or English skills. 30 In re-examination, the applicant said he wasn't helped very much with his spelling by merely writing out the words spelt incorrectly, nor was he helped by the daily self assessment reports. He had also passed a major exam prior to being placed on the first PEP in March 1998. 31 Senior Constable Craig Campbell, an officer of ten years' experience, provided oral and affidavit evidence (Ex 2). He attested that he had worked directly with the applicant at Kogarah on over a dozen occasions, describing him as attentive and alert. In Ex"2" he recounts the fire incident in a house at Arncliffe which he attended with the applicant. He said that the applicant had "an alertness and ability to think for himself in the extremely dangerous situation". 32 Senior Constable Campbell understood the applicant was dismissed for academic failure but said he did not believe an "honest and hardworking person such as Adam should be terminated due to a failure in the academic area. He would not hesitate to work alongside the applicant should he be reinstated". 33 In oral evidence, Senior Constable Campbell accepted that to be successfully confirmed as a police officer both aspects of training, paperwork and field-work, had to be satisfied. He said that in the field you haven't got time to look up manuals, but must act a lot on instinct. He said that the applicant demonstrated this ability. 34 While Senior Constable Campbell had worked with the applicant in the field, he had no knowledge of the training or difficulties he was having with his paperwork. He would, however, have given assistance, if he had been asked by the applicant. 35 Sergeant Rodney Henderson has been a police officer for twenty-four years. He was the applicant's supervisor during his final months, attached to the Transit Police. In his affidavit (Ex 3) Sergeant Henderson attested that the applicant: i) never shirked his responsibilities;

In short, Sergeant Henderson said he was a very good officer, respected by his peers. 36 He attested that the applicant's only frailty was his written work. His operational knowledge and understanding of the work was good - but "transposing from mind to paper could be a little erratic". He said that as the applicant gained confidence, this had improved. 37 In oral evidence, Sergeant Henderson said he saw difficulties with the applicant's written work and had helped him. He had also advised him to reconsider his decision to resign and helped him prepare his response to the 'show cause' letter. 38 He further said that he had no additional knowledge from what the applicant told him about his poor written work. He was asked if the applicant had told him he had a learning difficulty. Sergeant Henderson answered "he had indicated to me he was a person who did not pick things up quickly" (T.p111). 39 Sergeant Henderson mentioned an internal affairs inquiry which involved an incident where the applicant and other police were involved. Sergeant Henderson said the applicant seemed to lose confidence from that time. He did not believe the applicant was given correct welfare support after the incident. 40 In re-examination, Sergeant Henderson was asked if the applicant had been given appropriate support with his learning difficulties. While answering no, Sergeant Henderson said that he did not think everyone "was aware he had learning difficulties as severe as what he has" (T.p113). 41 Constable David Longfield has been a police officer for four years, serving previously in the British Army and being posted in Germany and Northern Ireland. During 1990/1991 he served in Kuwait during the Gulf War, commanding forty men in the field. 42 Constable Longfield worked with the applicant and was nominated as his 'buddy' in May 1998 for a six week period. He was aware of the difficulties the applicant was experiencing with his written work and sought to help him. 43 He described the applicant as a team player, popular at work, a nice guy. He is open, friendly, compassionate, caring and sensitive to the public. He also displayed courage, decisiveness - never backing away from a threatening situation; someone to be counted on if faced by any aggression. Constable Longfield described the applicant's operational performance as above standard. He had explained this view to Sergeant Austen and Senior Constable Halloway during the first and second PEPs. 44 Toward the end of his six week 'buddy' period, Constable Longfield believed the applicant's written work was improving. 45 In early October 1998, Constable Longfield and the applicant worked together again. Constable Longfield said the applicant was dependable as ever, but his written work was still poor. He said that despite this, he believed "Adam would make a good police officer". 46 In oral evidence, Constable Longfield said he knew from the outset that the applicant had difficulties with his written work. The applicant had shown him case write-ups corrected by Senior Constable Halloway and he had made suggestions to improve them. He said that the applicant believed that the less he wrote, the less he would be criticised. They had discussed this and Constable Longfield had told him to be "more expansive". The applicant had accepted the suggestion and corrections and had made them. 47 When asked about his meetings with Senior Constable Halloway and Sergeant Austen, Superintendent Dobson, himself and the applicant, Constable Longfield had told the meeting the applicant still had written work deficiencies but was operationally "quite sound". Constable Longfield said that, by this point the applicant was at his lowest point personally, and vocationally, and basically felt he had had enough of the whole thing. 48 In describing the applicant's improvement over the period, Constable Longfield said his operational improvement was significant, but his written work, specifically case write-ups, was marginal. 49 Ms Frances Amaroux is a learning consultant, counsellor and coach with qualifications in psychology. For the last nine years she has assisted numerous individuals with learning, self esteem and motivation. She provided two affidavits (Ex 5 and Ex 6) and gave oral evidence. 50 Following a forty minute consultation with the applicant and a review of his two PEPs and service history she formed the view that his supervisors did not have a real understanding of his learning needs. She described his preferred learning style as "kinaesthetic" - a mode of learning where the individual "tends to use their body, not just the mind to learn, memorise and carry out tasks". 51 Kinaesthetic learning is consistent with the applicant's satisfactory operational performance. She said individuals with this learning style often exhibit low self esteem, low motivation for written work, a reluctance to ask for, and accept, offers of assistance. 52 Ms Amaroux identified eight areas where "appropriate support" referred to in the 6 June 1997 letter from the Academy, should have been applied: 1 Understanding Adam's preferred learning style;

2 Providing models and/or examples of Case Write Ups;

3 Ensuring that information was 'chunked' accordingly - i.e. ensuring that he was clear on step 1 before continuing to step 2. For example, ensure that all vocabulary and Latin based words are clearly explained and understood before going further.

4 Greater acknowledgment of his emotional state and self esteem issues regarding his abilities as an academic learner. This could be done by speaking more positively - e.g. 'I believe you are capable of doing this. What can we do to help?' 5 Explaining concepts in very practical and concrete ways.

6 Ensuring he was clear on what he was doing well and then clearly teaching practical methods to improve what he was not doing well in (see points 2 and 3).

7 Teaching him a Visual Strategy for improved spelling. In my experience, visual strategies are used by excellent spellers. Kinaesthetic learners do not tend to easily visualise, and hence any remediation in this area has profound effects on not only their spelling but also on memory, planning and problem solving skills. Providing lists to supposedly memorise does nothing towards teaching the skill of spelling. I am unaware whether the Kumon course he attended tried this approach. 8 More in-depth questioning about what was stopping him doing his work. As discussed above, some people refuse help even when asked - usually for good reasons. Professional educators need to be aware of this. 53 With this support and the applicant's "excellent interpersonal skills, honesty and enthusiasm" she believed that he was capable of passing the Phase IV written requirements and would develop into a very good police officer. 54 Following her initial and only consultation, Ms Amaroux administered a written test to the applicant. This resulted in a 60% preference for kinaesthetic modes, 20% for visual and 20% for auditory. 55 In answering criticism that the applicant could not claim to have been unaware of what was required of him, Ms Amaroux attested that, just because someone knows what is expected, doesn't mean they are necessarily capable, or willing, to carry out these expectations. 56 Ms Amaroux rejected claims that the marking guide and model case write ups were a sufficient means of assistance. They did not sufficiently explain "how to" complete the work. She further criticised the spelling follow up of writing the word correctly five times as "almost useless" for a person who prefers kinaesthetic processes. It was not a useful spelling strategy. 57 In oral evidence, Ms Amaroux attested that the applicant had told her he felt confused with his PEPs and found them demeaning. He had not told her what aspects he found to be confusing or demeaning. 58 In cross examination, Ms Amaroux acknowledged that she had never worked with the New South Wales Police Service, was not aware of the training or material, that went into police training, other than the information she was provided, namely two PEPs, a summary of service and a summary from the New South Wales Police Association. She had read the documents a half hour before meeting the applicant. She made no further inquiries about the PEP process, or analysed the process, but was more interested in the applicant's "perceptions". She accepted some support had been provided by management to the applicant, but wasn't aware of its full extent. She was extensively cross examined on the kinaesthetic learning process and its affect on the applicant's training. She also described what learning mechanisms can assist kinaesthetic learners - for example, precise modelling and role plays. She said that appropriate training incorporates visual, auditory and kinaesthetic processes and acknowledged she wasn't aware whether police training had elements of kinaesthetic processes. 59 Ms Amaroux also described the theory of neurolinguistic programming where individuals explain certain learning behaviours by the performance in eye movements, eg constant upward eye positioning indicates a preference for accessing information visually; whereas downward eye positioning indicates an internalising of information. She described the Hodge's questionnaire administered to the applicant, as providing an indication of preferred learning styles. 60 Ms Amaroux was asked about the various aspects of assistance provided to the applicant, describing them as not particularly helpful for a kinaesthetic learner. She said that the onus for training rests about 80% with the provider and 20% with the learner. 61 In response to a question from me, she agreed that clarity and conviction in the witness box would have no relevance to whether the applicant was a kinaesthetic learner or not. Good operational performance was consistent for a kinaesthetic learner. 62 Helpfully, Ms Elyssebeth Ellen Leigh gave evidence immediately following Ms Amaroux. Ms Leigh is a lecturer in education at the University of Technology and has been an adult educator, Personnel Manager and Management Development Officer in the public and private sector for fifteen years including, since 1987, with programs for the New South Wales Police Service. 63 Her affidavit (Ex C) was a response to Ms Amaroux's evidence in three areas:

1. Her assessment of the applicant Ms Leigh contends that Ms Amaroux did not provide any evidence for the assumption that the applicant is a kinaesthetic learner. Ms Leigh referred to the set of concepts known as Neuro Linguistic Programming (NLP). This concept identifies three sources for communicating - visual, auditory and kinaesthetic. She attests that Ms Amaroux misrepresented the actual 'state' of the applicant's capacity to utilise his learning capabilities. Two sources of data were not used to identify the applicant's learning style. No pen and paper tests were conducted and she did not utilise any observation techniques to ground her analysis or support her assumptions. The applicant undoubtedly can utilise auditory and sensory sources and, given this, it is highly unlikely that the sole cause for his failure to pass his PREP is relevance on one particular source of learning input.

2. Reasons for his failure in Phase IV of PREP By the time, the applicant had not met the requirements of his second PEP, he had completed sixty-four weeks as a probationary constable. During this period his police duties included both formal, and on the job training, with particular emphasis on integrity theory with direct policing in Phase IV. Ms Amaroux's description of a traditional education system does not fit with this mix, and does not explain why the applicant passed early phases of the PREP where there was less emphasis on hands-on policing.

3. Learning support she recommends for the applicant should he be reinstated Ms Amaroux misunderstood the scope and extent of the support provided to the applicant in Phase IV - it was well in excess of that received by the majority of the applicant's peers. Ms Leigh relied on, and detailed the full scope of support provided, particularly by Senior Constable Halloway and referred to in her evidence and that of Mr Bradley.

Ms Leigh summarised her conclusions as follows: 39.1 On the matter of his preferred 'kinaesthetic' learning style he had repeatedly demonstrated success at completing tasks requiring use of his less preferred learning styles. Since no evidence is offered of any alteration to his learning habits and preferences, there is no basis for accepting that he failed Phase Four because of his learning style.

39.2 Far from being a 'traditional education system' PREP catered for a range of learning styles including 'kinaesthetic' and included extensive support mechanisms which were available to Mr Tregonning at all times - and used by him. 39.3 Mr Tregonning was receiving learning support sufficient to enable him to complete his probation. It was, therefore not an absence of support, nor provision of inappropriate support, that adversely affected his progress in the ways suggested by Ms Amaroux. 64 In oral evidence Ms Leigh attested that the nature of PEPs was such as they were designed and tailored to the specific requirements of the individual. She described it as a contract between the employee and the employer. Generally she agreed that while a PEP was negotiated between the employee and the employer, it was possible that faults in the program could be identified. Phase IV particularly was competently focused, but not solely so. 65 She accepted that there is a point where the employer must decide that further extensions of training are unreasonable. Forty-eight weeks for Phase IV was not unreasonable. Ms Leigh described the role of motivation in achieving educational goals and said she could not see why the applicant reached Phase IV, but then his motivation "drained away". 66 Senior Constable Joanne Halloway has been a police officer for seven years and has been attached to the Kogarah Local Area Command since 1997. She was the EDO with twenty-five probationary constables attached to Kogarah. Her affidavit, (Ex D), is a detailed chronicle of her involvement with the applicant. I summarise its contents. 67 She first came in contact with the applicant in September 1997 and in January 1998, it came to her attention that the applicant had numerous requirements outstanding. In March 1998, she recommended that the applicant be placed on a PEP and relegated. She had numerous conversations and meetings with the applicant as to his PEP requirements. He appeared to acknowledge and understand what was required. During April and May 1998, he was constantly reminded of what was required of him, and on 18 May, a meeting with him and Mr Dobson was held in respect to outstanding work. 68 On 21 May, Senior Constable Halloway completed a progress report on the applicant's case write ups, all of which had been late, incomplete or re-submitted. 69 In June 1998, the applicant was placed in a new team with Constable Longfield as his 'buddy'. Constable Longfield was to check the applicant's case write ups before being submitted. This practice did not continue.

70 On 17 June 1998, the applicant was placed on a second PEP following a meeting with Senior Constable Halloway, Mr Dobson, Sergeant Austen and Constable Longfield. 71 A major assignment for the Academy was failed twice, despite support and advice from Senior Constable Halloway which was not acted upon. She also arranged for him to visit the Academy for a briefing with Senior Constable Jones. 72 In July, the applicant was again relegated and placed on a second PEP. The program was to end in October and was developed with Sergeant Girgis. Sergeant Austen was his team leader, Senior Constable Oliver his supervisor and Constable Longfield his 'buddy'. During the second PEP, Senior Constable Halloway met with the applicant on a weekly basis and discussed how he might utilise his time more effectively, setting goals and tasks to complete. 73 On 17 September 1998, Senior Constable Halloway was advised that a traffic accident, investigated by the applicant, had not been investigated within the specified time period. 74 On 10 September, Senior Constable Halloway prepared a report on the applicant's progress on his PEP. 75 She said he improved marginally in some areas, but he was not performing to a satisfactory level and had not met the requirements of the PEP. 76 At a meeting with the applicant on 11 September, attended by Senior Constable Halloway, Sergeant Girgis, Senior Constable Campbell, Sergeant Austen and Mr Dobson, the applicant had said he "didn't like coming to work as everyone is watching me and no one trusts me". A further meeting was held with the Police Association on 24 September 1998. He had said things would improve. 77 Case write-ups continued to be resubmitted and his third was returned in mid October with a pass mark of 58. 78 On 6 November, a final progress report by Senior Constable Halloway stated that the applicant had not met the requirements of his PEP. 79 In oral evidence, Senior Constable Halloway agreed that on 17 June, 1998, the applicant had squarely raised the issue of lack of motivation and self esteem. She said that the applicant was offered all the support and assistance that he possibly could have been. She acknowledged that while on twelve weeks' leave during November/December 1997 and January 1998, she was unaware of what support, or follow up was provided to the applicant. 80 In cross examination Senior Constable Halloway was extensively questioned on details of the applicant's written work and said while she had seen reports from the field officers, she had not worked with him in an operational sense. 81 Senior Constable Halloway was taken to the affidavit of David Bradley and asked about the 'buddy' system. 82 In re-examination Senior Constable Halloway said that the PEP was discussed with the applicant including the requirement for self assessments. At the time he expressed no difficulty with meeting this, and the other requirements. 83 Mr David Bradley is a Police Educator, and presently Director of Curricular Research and Continuing Education at the Police Academy, Goulburn. He was the Foundation Dean of Studies at the New South Wales Police Academy. He was appointed in 1987 to reform police education and training and he led the team that designed, developed and delivered the Police Recruit Education Program (PREP). 84 In his affidavit (Ex E) he describes the five phases of PREP: ..... 7 Phase One was an eight week long residential phase at the Academy, during which Student Police Officers were provided with foundational and contextual knowledge and understanding of policing. Phase two was a four week field experience placement in a police station. Phase three was a fourteen weeks long residential term at the Academy during which Student Police Officers were trained in the theory and practice of operational policing. At the end of phase three Student Police Officers were sworn in as Constables on Probation and then commenced phase four. 8. Phase four was a forty eight weeks long work based learning practicum, during which students were provided with a supportive environment within which to learn policing 'on the job' applying and extending what they had learned during phases one, two and three. 9. During the early part of phase four they were provided with on the job teaching by Field Training Officers. Throughout the whole of phase four their progress was monitored and supervised by full time Education and Development Officers (EDO's). 10. In addition to their development on the job, Probationary Constables were also required to engage in practical written assignments and case write ups, and sit an examination. 11. Having satisfied the learning outcomes of phase four, Probationary Constables returned to a short residential, phase five at the Academy culminating in a Graduation Ceremony at which they were presented with the award of Certificate of Policing by the Commissioner of Police.

85 Mr Bradley gave details of the support, assistance and remediation provided to probationary constables whose progression through PREP is impeded for a variety of reasons. He said the applicant "was a considerable beneficiary of the program". 86 Mr Bradley said that "it probably is the case that former Probationary Constable Tregonning has a kinaesthetic preferred learning style. Nevertheless, PREP is delivered using a range of learning styles, including case studies, role plays, simulations, videos, lectures and tutorials. Models and examples of case write ups are used as well as on the job learning". 87 Students are provided with mentors. The Academy provides additional learning support, including a chaplain and student counsellor. With the help and remediation the applicant was given, and the careful review of each phase, it was the view that a marginal student could progress and graduate provided the support systems were utilised. 88 A detailed report on police training and recommendations prepared by Mr Bradley for the Police Board in 1990 was attached to his affidavit. 89 In oral evidence, Mr Bradley was taken to a letter he wrote on 6 June 1997 to the Patrol Commander at Kogarah following the applicant's attainment of Phase III of PREP. The letter is reproduced: Even though Probationary Constable Tregonning has met the minimum learning requirements of Phase III, the Academy's Assessment Board viewed with concern the mark achieved by him at the completion of the two week remediation program. While recognising the commitment the probationer displayed in passing the required Phase III assessments, board members are of the view that he will experience difficulty in meeting his Phase 4 requirements unless appropriate support (my emphasis) is made available for him. 90 He was particularly asked what he meant by "appropriate support". When asked his view of the fact that no interviews were conducted with the applicant, for six months after his posting at Kogarah, he said it "would be a worry to me". 91 He gave evidence that the PREP was designed to be sensitive to the individual's strength and weaknesses, but it cannot cope with a "passive learner". It requires the individual to be actively involved in seeking support and resources to perform. Nevertheless, it is a system which is very sensitive to the marginal learner. 92 He attested that, where an individual might continue to fail, despite all efforts at support, it might just mean that policing isn't right for that person. 93 Mr Bradley was unable to quantify the ideal ratio of probationary constables to support persons such as FTOs and EDOs, but agreed that 20-30, with one EDO, would be a "heavy load". 94 Mr Bradley was questioned as to the kinaesthetic learning style. He said he wouldn't disqualify a kinaesthetic learner from being "capable" of mastering conceptual understanding and judgemental knowledge and skills. 95 In re examination Mr Bradley was asked about the 1990 report which contained over fifty recommendations. He said the great majority of the recommendations had been implemented, but since 1990 there has been a great deal of organisational change which meant that the earlier prescriptive recommendations were no longer appropriate. PREP had evolved over this time. 96 Senior Constable Steven Oliver, a police officer for 13 1/2 years, was the applicant's supervisor at Kogarah and provided reports on his progress which the applicant was able to comment on. In his affidavit, Ex F, Senior Constable Oliver said, at no time had the applicant commented on the reports. Following a meeting involving himself, the applicant, Senior Constable Halloway and Sergeant Austen, Senior Constable Oliver was told that the applicant did not wish to work with him. This was the first time Senior Constable Oliver had learnt of any difficulty with their working relationship. Senior Constable Oliver attests that he had "formed the view that PC Tregonning's main difficulty was his lack of motivation to get the work done" and no real improvement in his performance had occurred during the time he was under his supervision. 97 In cross examination, Senior Constable Oliver attested that he had not formed an opinion as to why the applicant lacked motivation. As to the way the applicant dealt with the public, Senior Constable Oliver said it was "extremely okay". 98 Sergeant Sherif Girgis has been a police officer for twelve years and is presently a Practicum Unit Consultant in Education Services. In his affidavit Sergeant Girgis attests that he visited Kogarah Area Command on 23 June 1998 to speak with Senior Constable Halloway about the applicant's performance. After reviewing relevant documentation, he held a meeting with the applicant, during which the applicant regularly made admissions that his problems were "my fault" or "it's me". 99 On 15 July 1998, Sergeant Girgis put the applicant on a second PEP, explained what was expected and required. The applicant was offered an opportunity (which he did not take up) of making adjustments or alternatives to the PEP. He agreed to the process and signed the document. 100 On 20 July Sergeant Girgis visited Kogarah to acquaint the applicant's supervisors with their roles, responsibilities and obligations under the PEP. 101 During the PEP, he had met the applicant on a number of occasions to inquire as to any problems or requests for further assistance. On 24 August 1998, in one such meeting, the applicant offered no suggestions, nor indicated he had any problems. 102 On 11 September Sergeant Girgis attended a meeting with the applicant, Senior Constable Halloway and Sergeant Austen to discuss the applicant's performance, an alleged incident where he placed his feet on a desk, his apparent lack of motivation and unwillingness to take control of situations. The applicant offered no explanation for his behaviour. The applicant was reminded of his obligations under his PEP and his responsibility for bringing to management's attention any difficulties he was having. 103 It was agreed that he had not performed to an expected standard during the PEP. 104 On 24 September Sergeant Girgis met with the Police Association's Legal Officer, Nancy Searle, and the applicant. He again reviewed his performance and encouraged the applicant to speak freely and identify any issues which might be affecting his performance. Sergeant Girgis confirmed his view, that the applicant had not performed to a satisfactory level, and had not met his obligations under his PEP. 105 Despite the PEP having two weeks to run, he was not satisfied that the applicant would have shown a considerable improvement. 106 In oral evidence, Sergeant Girgis confirmed that the applicant offered no explanation for his poor performance. He accepted that the applicant's field officer reports for a period did not show any problem of motivation, but he considered motivational issues when designing the second PEP. He said it was a possibility that the first PEP demotivated the applicant, although it also served to motivate a probationer to improve performance, aware of the consequences of not doing so. 107 Sergeant Girgis agreed that it was common for a probationer to negotiate the terms of a PEP before signing it; but the applicant had not done so, or offered to do so. When asked if his unit would be involved in a training program should the applicant be reinstated Sergeant Girgis replied "I assume it would be, yes". 108 His unit would be able to find a suitable local command which could provide an environment for the applicant "to have another go at his PREP". 109 Detective Sergeant Steven Austen provided an affidavit (Ex H) but was not required for cross examination. He has been a police officer for eighteen years and was the applicant's supervisor during his second PEP. 110 He attests that he met the applicant's 'buddy' Constable Longfield about once a week to discuss the applicant's progress. He formed the view that the applicant was trying hard, but could not perform and was lacking motivation. 111 Sergeant Austen prepared a number of reports, none of which the applicant commented on. 112 Superintendent Garry Dobson was the applicant's senior supervisor at Kogarah. In his affidavit (Ex I) he attested in January 1998 he was advised by Constable Halloway that the applicant was failing to meet the requirements of PREP. Subsequently, the applicant was placed on a PEP, during which Constable Halloway regularly advised him of the applicant's progress. He recalls speaking to the applicant, on about six occasions, asking how he was handling the job and if he needed assistance. On no occasion did the applicant indicate that he was in need of assistance. 113 On 17 June 1998 in a meeting with the applicant, Sergeant Austen, Senior Constable Longfield and Constable Halloway, Superintendent Dobson impressed upon the applicant the importance of satisfying his PREP requirements. 114 Superintendent Dobson attests that aspects of the first PEP were "perhaps deficient" and may have had an adverse effect on the applicant's progress. He further said that the strategies developed to address the applicant's specific deficiencies may not have provided him "with an appropriate level of support". 115 As a result of these concerns the applicant was placed on a second PEP with involvement from Senior Constable Girgis from the Practicum Support Unit. 116 During the second PEP, the Superintendent was concerned that no real progress was being made, and he cautioned the applicant, on at least three occasions, as to the consequences. The applicant acknowledged that people were helping him, but it was up to himself. 117 In November 1998, after considering a report from Senior Constable Halloway, the Superintendent formed the view that the applicant was unable to perform to an acceptable standard and no additional remedial programs would assist him. He proceeded to recommend dismissal. 118 In oral evidence, Superintendent Dobson said that the applicant's supervisor, Duty Officer Hamer, in July 1998 had not performed his task efficiently and was replaced. He said "Mr Hamer has acknowledged he let the team down in terms of how he assisted mainly Adam with respect to the PEP" (T.p249). 119 Superintendent Dobson said this failure to monitor the applicant effectively and consistently led to a second PEP, because he was not satisfied that the applicant had been given an opportunity to develop in the first one. It had been difficult to make a genuine assessment based on what transpired in the first PEP, with feedback and follow up documentation, not completed at the appropriate time. He said Sergeant Hamer "failed to do the right thing by Adam" (T.p255). 120 Superintendent Dobson was taken to Ex 8, a letter he wrote to the Executive Director, Human Resources, in which the applicant is described as a "significant risk to the organisation". He put it in terms of damage to the Police Service by a failure to complete tasks and jobs.

For the Applicant 121 Mr Wright's submissions may be summarised as follows:

A. The applicant is a person who is temperamentally and intellectually suited to be a police officer.

B. The evidence of his colleagues and a supervisor is that he is competent on the street.

C. His acknowledged academic difficulties relate to a learning difficulty which undermined his confidence and self esteem. Had he been provided with appropriate assistance he would have met the requirements of Phase IV of PREP.

D. Two redesigned and oppressive PEPs further undermined his confidence.

E. Six months elapsed from the notice to show cause and termination, during which he may well have been able to complete the outstanding academic work.

F. On 6 June 1997, Mr David Bradley had advised the Kogarah Local Area Commander that the applicant would experience difficulties in meeting his Phase IV requirements, unless appropriate support was provided.

G. His Field Training Officers reported good performance on 30 June 1997, 9 September 1997 and 9 October 1997 and a supervisor's report of 15 December 1997 demonstrated satisfactory performance.

H. Despite his difficulties he passed one assignment, two pacer exams, but failed one case write up and did not submit three others. He also had a spelling problem.

I. Between 30 May 1997 and 23 January 1998, the applicant was provided with virtually no assistance or follow up. Mr Bradley described this as " a worry ".

J. The daily self assessment reports were inappropriate and merely used as 'ammunition' against the applicant.

K. In July 1998 the applicant's supervisor, Sergeant Hamer, provided a satisfactory report and was subsequently relieved of his supervising responsibilities for not providing appropriate supervision.

L. The applicant's second PEP was misleading and misdirected as it wrongly identified two operational deficiencies which did not exist. Two poorly designed PEPs impacted on his confidence.

M. On 6 August 1998, supervisor Sergeant Perkins comments positively on his work and says that his spelling and writing problems may be contributing to his problems with meeting his PREP requirement. Another supervisor on 13 August reports that the applicant's performance and attitude have improved. His one operational problem in fifteen months is the motor vehicle accident that went statute barred.

N. Sergeant Oliver's negative report of 15 August 1998 is not due to a lack of commitment, but rather results from his academic difficulties and his feelings of harassment.

O. There are conflicting reports in October and November 1998 following which his training was terminated and he was posted to the Rockdale Transit Unit, where his performance over six months was satisfactory. This period was not taken into account.

P. The eight matters outlined in his show cause letter were either wrong or able to be explained by the applicant's learning difficulty and lack of appropriate support. Two were without a factual basis, one was partially incorrect and one was padding.

Q. The applicant's dismissal was "harsh, unreasonable and unjust" and he should be reinstated. Sergeant Girgis gave evidence that his unit would be in a position to assist the applicant if he was reinstated. He represents no risk to the Police Service, his colleagues or the public.

A) The applicant has not discharged the onus of proving his dismissal was unfair or unreasonable.

B) It was never asserted that the procedure adopted was unfair or that the applicant was denied an opportunity to address the employer's concerns. The applicant was provided with a significant amount of effort in guiding him through his training. He was afforded every opportunity to seek help and assistance. He didn't do so.

C) The Association says the wrong help was offered, or that it wasn't enough, but provided no answer as to what was the right help.

D) Despite some deficiency in the applicant's day to day supervision this is balanced by the intensive supervision of Senior Constable Halloway. The second PEP showed no noticeable improvement, despite an acknowledged difficulty with the first.

E) There was a responsibility on the applicant to perform. He could not rely on others not reminding him, or chasing him up.

F) Ms Amaroux's evidence should be compared and contrasted to the greater knowledge and understanding of police training of Ms Leigh and Mr Bradley. Ms Amaroux had spent less than two hours with the applicant, forming her views by relying solely on what the applicant had told her about the training requirements and the obligations he was required to satisfy. Her evidence is of limited value; whereas Ms Leigh and Mr Bradley gave evidence of the mix of learning styles that probationary constables underwent.

G) The applicant had met the earlier requirements where kinaesthetic learning was not as great as it was in Phase IV.

H) Ms Bradley's letter of 6 June 1997 was merely identifying the applicant as a marginal student, who would require the full range of assistance - which was in fact provided.

I) The applicant's reply to the show cause letter was a denial of the matters, not a reason for them; namely he needed additional assistance. It was to blame everybody else. This contradicted his oral evidence. The view that it was somebody else's fault pervaded his evidence and his entire career. Indeed, since the dismissal he had not sought to improve his skills or training through Centrelink or TAFE.

J) The probationary nature of the applicant's employment should be taken into account, but is not decisive. See Price v Box Valley Pty Ltd (1999) Wright P, Walton VP and McLeay C, 90 IR 480, and Buckman v Burdekin Resources NL (1998) Wright P, Hungerford J and McKenna C, 85 IR 415. If the Commission is satisfied that the applicant cannot meet the standards of a probationary constable, then the dismissal can't be unfair, unreasonable or unjust.

K) There is no evidence that the applicant will be able to meet the appropriate standards. Reinstatement is therefore impractical.

L) The applicant's efforts to mitigate his loss have been minimal. This should be taken into account should compensation be deemed appropriate.

M) The applicant was simply the wrong person in the wrong job.

Relevant Principles 123 The history of the development of what is generically defined as the unfair dismissal jurisdiction in New South Wales, has been recently chronicled in Beahan v Bush Boake Allen Australia Ltd (unreported Wright P, Walton VP, Hungerford J Matter IRC621 of 1999, 23 August 1999). 124 The Full Bench of the Commission in Court Session there considered the "interface" between new s 109A Unfair Contracts and ch 2, Pt 6 Unfair Dismissals. 125 In doing so, the Full Bench traced the legislative path through the Industrial Arbitration Act 1940, the Industrial Relations Act 1991 and the Industrial Relations Act 1996 and referred to numerous seminal authorities which determined general principles to be applied in unfair dismissal cases. 126 As will be evident from my later findings, there is one particular aspect of the general principles that I wish to discuss in some detail. This concerns the meaning of the expression "harsh, unreasonable and unjust". 127 It is apparent from both the ordinary meaning of each adjective, and their use in an industrial context, that each has its own discrete and distinct meaning - albeit with common threads. 128 The Macquarie Dictionary defines the terms thus: HARSH: ungentle and unpleasant in action or effect; UNREASONABLE: not endowed with reason; not guided by reason or good sense; not based on, or in accordance with, reason or sound judgement; UNJUST: not just; not acting justly or fairly, as persons; not in accordance with justice or fairness, as actions. and the Concise Oxford Dictionary records as follows: HARSH: ..repugnant to feelings or judgment; cruel, unfeeling; UNREASONABLE: Not reasonable; going beyond the limits of what is reasonable or equitable;

UNJUST: Not just, contrary to justice or fairness. 129 In an industrial context, in Rose v Telstra Corp Ltd (AIRC, Print Q9292 (Vol 45 AILR 3-966, 4 December 1998) Ross VP described the terms: In my view, for the purpose of s.170CG, a termination of employment may be: HARSH, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; UNJUST, because the employee was not guilty of the misconduct on which the employer acted; and/or UNREASONABLE, because it was decided on inferences which would not reasonably have been drawn from the material before the employer. 130 In Parker v Capitol Painters & Decorators Pty Ltd (68 IR 100 at 104, 12 September 1996) Connor C similarly defined the terms as follows: HARSH: too severe, having regard to all the circumstances.

UNREASONABLE: immoderate, excessive or extravagant.

UNJUST: unfair, inequitable, undeserved or biased. 131 Having established that each element of the expression has its own independent meaning, it is axiomatic when the expression is applied to a particular case, and set of circumstances, that not all of the three terms might be evident. In aliis verbis, a particular dismissal might be found to be 'harsh', but not 'unreasonable' or 'unjust'. Other variations might be found. 132 This notion has been considered in a number of authorities to which I now refer. In Byrne & Anor v Australian Airlines (High Court, 11 October 1995 185 CLR 410) the expression 'harsh, unjust or unreasonable' was considered in the context of an award provision. In their joint judgment, McHugh and Gummow JJ said at p465: 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. 133 The principle was further discussed in Outboard World v Muir (Cahill VP, Peterson J and Tabbaa C, 51 IR 167 at 182) where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 (Cahill J delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made".

134 A contemporary authority reaffirming this principle is to be found in Bankstown City Council and Paris (Wright P, Peterson J and Bishop C, IRC262 of 1999, 23 August, 1999). The Full Bench said at p20: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specifity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 135 For reasons that I later develop, I am satisfied that the dismissal of Mr Tregonning was 'harsh' in all the circumstances and I make a positive finding accordingly. On the other hand, I would not describe this dismissal as 'unreasonable' or 'unjust'.

The Evidence 136 In my view, there were no significant conflicts in the evidence which would warrant an adverse finding, by the Commission, against either party. All of the witnesses gave their evidence honestly, candidly and forthrightly. This is particularly so in respect to the evidence of the applicant, who gave frank and sincere testimony. He made no attempt to cover up his shortcomings, embellish his good characteristics or evade questions where the answers were bound to reflect poorly on him. 137 Nevertheless, I should refer to the apparent differences in the responses the applicant gave to his show cause letter and his evidence in these proceedings. Ms Brus successfully established little basis for the defences he advanced in the show cause letter when contrasted with those relied upon in this case. However, I accept that at the time of his responses to the show cause letter he was under considerable pressure and stress. He felt the system had betrayed him. He had already resigned and withdrawn his resignation. His desperation at the time, was apparent from this exchange with Ms Brus in cross examination (T.p86-87): Q So are you saying in that particular statement that it was the supervisor's and the education officer's fault? A No, I'm not saying - I didn't mean that at all.

Q Well, what does that statement mean? A That, I think, I needed help. I know I didn't admit it and I admit that here and now that I didn't ask for help. It all came too late, basically, when I asked. Well that was after everything had passed and there was no way, no way back. The termination to show cause notice had been - well I thought somebody might be able to pick up that there was something wrong, even though I didn't admit it and I know I should have admitted it. Q But when you wrote this document, you said "I believe with the assistance of my supervisors I would not now be facing termination from the service"? A Yes, if they maybe picked up on my academic problems. Q What, they had picked up on your academic problems hadn't they, that's why you were placed on the PEPs? A But they didn't help me very much.

Q What did you do to help yourself? A Well, nothing, really, I threw the towel in. Q And it was easier to blame the system for being at fault, wasn't it? A Well, yes, yes. 138 I note also that his response to the show cause letter was written with the help and advice of Sergeant Henderson, who no doubt wanted to ensure the applicant was placed in the best possible light. In view of these circumstances, I prefer to draw no adverse inference from this conflict in his evidence.

The Kinaesthetic Learner 139 The evidence, primae impressionis, of Ms Leigh and Mr Bradley refutes the diagnosis and conclusions of Ms Amaroux. However, considered concomitantly, the evidence of the three expert witnesses, neither proves, nor disproves, the applicant as a kinaesthetic preferred learner. Ms Leigh is content to criticise the limited testing and inquiry leading to Ms Amaroux's diagnosis. She does not, definitively, reject such diagnosis. I would accept there is some substance to Ms Leigh's criticism. 140 However, with this conjunction in mind, it is to other corroborative evidence that the Commission is directed which, on the balance of probabilities, convinces me that the applicant is a kinaesthetic preferred learner. Such evidence is contained in the affidavit of Mr Bradley, Ex E, who said at par 22: It probably is the case that former Probationary Constable Tregonning has a 'kinaesthetic' preferred learning style. Everyone learns using a variety of styles - kinaesthetic or 'tactile', auditory and visual. Tactile learning necessarily underpins learning how to do mainly physical tasks. Only a limited amount of conceptual, understanding and judgmental knowledge and skills can be mastered in a 'tactile' learning style. 141 I am satisfied that Mr Tregonning is an individual who presents a complex, and sometimes contradictory picture. To describe him as unique is probably overstating the position. Nevertheless, his individualism and particular learning difficulties might not be sufficiently catered for in the usual police training, counselling and remedial procedures. This should not be construed as criticism, as I am confident that the level of support and remediation available to marginal students, and the applicant particularly, was thorough and rigorous. Rather, in my view, this case reveals an individual with atypical problems. The orthodox processes might not always recognise, or cater for, such an individual and, in my view, didn't in the applicant's case. 142 While I do not profess to be an expert in learning processes or education philosophy, my tertiary training in education permits me to make some general observations on the expert evidence advanced in this case. 143 Firstly, the applicant has no difficulty with aural communication. His demeanour, understanding of questions in the witness box and the undisputed evidence of his competency and ease in dealing with the public, accords with this contention. 144 Secondly, he, like so many students, spells words phonetically, rather than correctly. To be a good speller takes years of practise - reading and writing, and becoming familiar with the correct spelling of words. Bad spellers cannot be converted in a few months. More significantly, writing misspelt words, over and over, has long been discarded as a means of curing the bad speller. It is not a quick fix or valid educational tool. 145 Thirdly, I do not place much reliance on an employee's self assessment. Self assessment, as a remedial device, almost ensures the self assessor will exaggerate positive characteristics and downplay, or omit, the negative. What is far more valuable is peer and supervisor's assessments. In any event, particularly in respect to the first PEP, the self assessments were not appropriately analysed; nor was feedback provided. They become little more than mundane diary entries, whose value as appropriate analytical learning exercises is highly suspect. 146 I would add (at the risk of appearing overdramatic), that history is littered with individuals, who, despite profound learning difficulties (sometimes throughout their entire lives) still manage to reach the ne plus ultra of success and achievement. There are numerous examples of individuals in all walks of life, whose written skills are so poor, that it is extraordinary, and inexplicable, that they ever achieve the success they do. 147 Homer was blind and deaf, unyet his epics, "Iliad" and "Odyssey" are classics of ancient literature. The language disorder, dyslexia, estimated to affect about 7 per cent of the population, afflicts many famous politicians, sports people, business people and entertainers - Albert Einstein, Louis Pasteur, Winston Churchill, Dwight D Eisenhower, Leonardo da Vinci, Galileo, Henry Ford, Kerry Packer, Tom Cruise, Whoopi Goldberg, Dustin Hoffman and "Magic" Johnson to name a few. 148 I also note in this rapidly changing technological age, that the somewhat quaint preoccupation with emphasis on strict literary form, correct spelling and grammatical precision seems to be a lost art form. As one who is

somewhat old fashioned in this regard, I shudder when I read most written communications between people, particularly in e-mails and, sometimes even in official correspondence. The pace of modern society has largely guaranteed that communications are expressed in short hand, without regard for technical or grammatical niceties. Indeed, the technology now exists for the transcription to writing through voice input only. This will be commonplace in the not too distant future. 149 This commentary might seem a little off the point. However, the police service today, and in the future, will not be immune from the rapid pace of technological advances - no doubt it will be greatly assisted by it. As I understand it, there has been a commendable shift in emphasis from the professional police officer being stuck behind a desk to one who is now more often seen on the streets, directly engaging with the public in an operational sense. 150 These generalisations should in no way be interpreted as condoning Mr Tregonning's far from satisfactory written work. I do not seek to make excuses for him. There are very real and practical dangers in a police officer not being able to properly prepare a brief of evidence, or satisfactorily and accurately record the incidents, which he or she is involved in. There are patently obvious implications for the administration of justice, and for the public's confidence in a police officer being able to discharge all his/her duties with diligence and competence.

General Observations and Findings 151 There is no doubt that to satisfy the requirements of being confirmed as a police officer, a probationary constable must be able to demonstrate, both operational and academic competency. Failure to demonstrate a capacity in either of these two streams, renders the probationer at risk of being relegated and held back from confirmation as a police officer. Continued failure in either stream, almost guarantees the probationer will be dismissed from the service. Such were the circumstances in which Mr Tregonning found himself. 152 In Myer and Police Service of New South Wales (Matter No IRC98/4319 - 27 April 1999), I quoted with approval the comments of her Honour Schmidt J in Owens v New South Wales Police Service (1998) 87 IR 1 at page 12: It is unarguable that a police officer must not only be proficient at the practical aspects of his work but must have other qualities which suit him for this important office.

and at page 13: It cannot be overlooked that Mr Owens was a probationary constable. He was obliged to demonstrate his fitness for the office which he sought. While it seems that Mr Owens was able to demonstrate the necessary qualities in his practical work, he failed to demonstrate those qualities in a most serious way on two separate occasions, when a demonstration of those qualities was called for in other areas. I accept entirely that Mr Owens' failings were not at the higher end of seriousness. He was neither involved in corrupt conduct or conduct of a serious criminal kind. Nevertheless, his extended period of probationary employment was a time for demonstration and assessment of particular capacity. Mr Owens presented a very mixed picture indeed.

Having carefully considered all of the evidence, I find myself unable to conclude that a proper exercise of the Commission's discretion in this case would be to require the reinstatement of Mr Owens, so that he could be placed upon existing programmes designed to assist serving officers who encounter difficulties with matters of integrity and the personal attributes earlier discussed. It is no doubt important for such programs to operate for the benefit of serving Police Officers who have been successful in being appointed to the police force, where a greater measure of assistance may be called for if a deficiency in required levels of integrity or performance arises. I find it very difficult to accept however that such programs should be directed to probationary constables, who must I think be able to demonstrate these necessary qualities themselves, without remedial assistance. 153 While the principles in the above quotation are undeniably practical and sensible, they are nevertheless to be applied fairly according to the facts and circumstances disclosed in a particular case. I am readily able to distinguish

significant differences in this matter, to the facts and circumstances disclosed in both Myers and Owens . 154 I am satisfied, from the uncontested evidence, that Mr Tregonning performed his duties in the field (operationally) with compassion, diligence and commitment (except perhaps for the later stages of his second PEP where he freely admitted that he felt he wasn't "pulling his weight"). There is not a complaint, or even a suggestion, that Mr Tregonning's integrity or personal behaviour, either on, or off duty, was anything but commendable and no less than the public would expect from it's Police Officers. His problems and difficulties relate exclusively to his academic performance, and more particularly, his written work. 155 There was only one incident where his failure actually resulted in a defect effecting his public duty - that being the vehicle incident which went statute barred. This was a regrettable but, in my view, isolated incident which in no way reflects a wider operational incapacity or lack of diligence. 156 In light of my earlier observations, and my examination of the evidence, I am not persuaded that the dismissal of Mr Tregonning was an appropriate response to his admitted deficiencies. As I said earlier, I find his dismissal to be 'harsh'. As O'Connor C defined it in Parker v Capitol Painters & Decorators Pty Ltd "it was too severe, having regard for the circumstances". 157 In particular, I highlight matters which have led me to this finding:

A) There was an acknowledgment that the applicant's first PEP was not monitored effectively. Sergeant Hamer was relieved of his supervising role due to these deficiencies. Superintendent Dobson explained that he was not satisfied that the applicant had been properly supervised, or provided with feedback. There is no evidence that the applicant was told his first PEP had been defective. In any event, I am of the view that being placed on a second PEP would have dented his confidence and self esteem. B) There is no evidence, during the early formative period between June 1997 and January 1998, that the applicant was provided with appropriate feedback and assistance. This may, in part, have arisen due to the changeover in EDO responsibilities between Senior Constable Mullan and Senior Constable Halloway. During this time, at least two EDO reports (3 August and 16 October 1997), recommended he be counselled by the local Commander. There is no evidence that this occurred in other than a cursory, "off the cuff" way.

C) The evidence of Constable Longfield, and his reports, reveal that, in his view, the applicant was brave, courageous and courteous and that the applicant didn't get very specific assistance (T.p121). Constable Longfield summed up his view as follows " he is a person that I would want backing me up if ever I needed help ". Senior Constable Campbell made similar observations of the applicant's behaviour and competence .

D) There was insufficient weight placed on his favourable operational performance as disclosed in the various reports of Field Training Officers.

E) A positive report from his supervisor, Constable Longfield, Ex 9, was tendered late in the proceedings. It did not form part of the main file - Joint Exhibit 1. It might reasonably be assumed that it was not taken into consideration - as it should have been - when the decision was made to dismiss the applicant. Even if it had been considered, it most certainly wasn't given the weight it deserved.

F) It took six months from when Superintendent Dobson recommended dismissal to actual termination. There was no account taken of the applicant's performance during this period. Sergeant Henderson was the applicant's supervisor in the final few months of employment. He described him as " punctual, clean and tidy, never rude, sarcastic or lost his temper, never shirked his responsibilities, respected by his peers ". It is a positive reflection on the applicant, that despite knowing he was recommended for dismissal, he continued to display these fine qualities. One might have reasonably expected the complete opposite.

G) I also find it curious, if the applicant was such a " risk " to the service (as said by Superintendent Dobson), that the service would wait six months and keep him on operational duties for this length of time. I believe that Superintendent Dobson overstated the seriousness of such a " risk ", if indeed it was a risk at all.

i) the applicant's straightforward and open admission of his faults;

iii) his loss of confidence and self esteem which, in my view, can be restored;

The Remedy 158 Having found the dismissal of Mr Tregonning to be "harsh", I turn now to consider the appropriate remedy to be ordered. 159 As early as the conciliation proceedings before me on 18 June 1999 the applicant pressed for reinstatement. He has been steadfast and resolute in his request throughout these arbitral proceedings. I find much to commend his stance. It is indicative of his bona fides and long held desire to become a Police Officer. 160 Despite her substantive submission, Ms Brus submitted, if the Commission finds the dismissal unfair, reinstatement is impractical, as there was no evidence that the applicant could, or would, satisfactorily complete his training. If compensation was considered appropriate, the applicant had made minimal attempts to mitigate his losses. 161 It is trite to observe that an employer, who unfairly dismisses an employee, should not be able to escape the reinstatement of the employee, merely by expressing difficulty or discomfort. If this was so, the likelihood of any employee being reinstated would be negligible, and for all practical purposes, the legislature's clear intent, to have reinstatement as a primary remedy, would be a meaningless futility. In my opinion, there is an onus on the employer, where it is otherwise justified, to demonstrate a real and practical impediment to reinstatement. I am not convinced that such an impediment exists. 162 Sergeant Girgis gave evidence that his Practicum Support Unit would be in a position to relocate the probationer and provide advice as to appropriate training needs, should he be reinstated. I accept and respect the candour of this admission. 163 Where the employer is of the size and diversity of the Police Service and, where there are no issues of integrity associated with the applicant's performance, there is no good reason why reinstatement should not be ordered. (See Oswald v NSW Police Service (1999) Hungerford and Schmidt JJ, Murphy C, 90 IR 42). In this case, I propose to do so - subject to one caveat. 164 I am not persuaded, in the light of this case's circumstances, that the applicant should be entitled to an order pursuant to s89(3), such as to provide a monetary order for the period from dismissal to reinstatement. Rather, I propose to order reinstatement on, and from, 1 January 2000, with such rights and benefits flowing from that date. 165 It is, ipso facto, a consequence of reinstatement, that the applicant will be restored to his former position as a probationary constable. It also follows that the applicant's training requirements must be completed within a reasonable period. To this end, I direct that the parties confer as to Mr Tregonning's work location, the duration and specific terms of his training requirements, which might include a third PEP. The applicant's reinstatement, under such conditions as are to be agreed, should occur as soon as practicable, but no later than fourteen (14) days from today. 166 Ad summam, I would observe that Mr Tregonning's reinstatement will likely provide for him the one final opportunity to achieve his ambition of becoming a police officer. I think he has the potential to make a very good one. He should not squander the opportunity with which he is now presented.

ORDER 167 Pursuant to s89(1)(3)(8) of the Industrial Relations Act 1996 the Commission orders:

1 The reinstatement of Mr Adam Tregonning by the New South Wales Police Service, on and from 1 January, 2000, with such rights and benefits accruing from that date.

2 The parties are to confer on such terms and conditions as may be agreed in respect to Mr Tregonning's training requirements.

3 Reinstatement shall take place as soon as practicable, but no later than fourteen days from today.

4. This order shall take effect from 8 March, 2000 and continue in force for a period of six months.

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