Reddy v International Cargo Express

THE ISSUES

1. After studying and considering all of the evidence and attachments filed by the parties, the Commission has focused specifically on all evidence and attachments related in any way to: A. P1200156 - The Griffith issue; B. P1202297 - The Appointments Belt issue.

The Leather Appointments Belt issue on 24 May 2012

1. S C Wright stated that, on 24 May 2014, he was rostered to work at Griffith police station between the hours of 8.00 am and 6.00 pm. He had lunch at 11.30 am as he and Constable Tyrone Neale had to transport a prisoner who had been remanded in custody to Junee Correctional Centre (JCC).
2. The round trip was 400 kilometres. It took five hours to transfer custody of the prisoner to JCC. Constable Neale drove to Junee and the applicant drove on the return journey. The applicant wore his leather appointments belt for the entire trip and said it prevented him from sitting comfortably.
3. On his return to Griffith police station he removed his appointments belt and put it away in the gun safe at about 5.15 pm in the presence of Sergeant Jason Clark and Leading Senior Constable (LSC) Kris Johansen, the Supervisor at the time, who asked him: "What are you going home early?" to which he had replied: "No, I'm just going to do some admin work upstairs".
4. The applicant did not recall what LSC Johansen said after that. He recalled that he had felt humiliated and hurt and walked away. He was never asked why he had removed his belt early.
5. Whilst the applicant was upstairs in the Crime Management Unit copying some colour photographs for a matter he was handling, Sergeant Jason Clarke approached him and asked him why he had not put his belt back on after being so instructed by LSC Johansen. The applicant replied words to the effect: "because I am doing some work up here".
6. The applicant regarded the approaches by both LSC Johansen and Sergeant Clark as non-empathetic and confrontational.
7. After completing the photos the applicant changed his clothing and prepared to leave. On being informed by the Applicant that he was leaving, LSC Johansen glanced at the clock in the office. The Applicant observed this and remarked, "Well dock me eight minutes" and left the station.
8. The applicant stated that he went off on sick leave for the following two shifts.
9. The applicant also applied to the Administrative Decisions Tribunal on 15 January 2013 alleging discrimination on the ground of disability because he had been directed to replace his appointments belt.
10. Kris Johansen, a Leading Senior Constable (LSC) in the General Duties Team at Griffith Police Station, provided a statement in the proceedings. He provided the following evidence.
11. The applicant had been rostered to work as part of the first response team at Griffith. LSC Johansen asked the Applicant to accompany Constable Tyrone Neale in conveying a prisoner to Junee.
12. That afternoon, at approximately 5.20 pm, LSC Johansen was at the Supervisor's desk when the applicant approached and took the keys for the gun storage room where officers store their guns at the end of each shift. The applicant's appointments belt had been removed and he was clearly going to store it in his locker along with his gun, taser and other appointments.
13. It is a requirement that General Duties officers wear their appointments while they are rostered for General Duties so as to be ready to respond to situations that may arise. That requirement applies whilst travelling or whilst working within the police station.
14. He said he asked the applicant what he was doing and received the reply: "Taking my stuff off for the day". LSC Johansen told the applicant: "You realise you don't finish til 6? You had better put your gun back on". The applicant had not responded and walked away to the gun room.
15. A few minutes later Sergeant Jason Clarke approached LSC Johansen saying words to the following effect: "I overheard what happened between you and Grant. I have directed him to put his appointments back on as well. I want to know if he puts them back on and what time he leaves".
16. At approximately 5.52 pm, the applicant approached LSC Johansen clad in civilian clothes and told him in words to the effect: "I'm going". The Applicant saw LSC Johansen glance at the clock and said: "You can dock me the fifteen minutes, I don't care".
17. LSC Johansen reported what had occurred to Sergeant Clark as he was required to do. The latter was in the office of Inspector Gordon Dunlop who at that time was the HR Duty Officer. He reported on the time that the applicant left work and their conversation. Inspector Dunlop instructed him to: "Endorse the roster to show it -".
18. The following exchange occurred under cross-examination by the applicant: Q. In relation to the conversation that you allege that we had at paragraph 12 [of your statement] you don't make any changes to that conversation at all? A. No. Q. You hold to the conversation still as. It's alleged that you said to me, "What are you doing?" I reply, "Taking my stuff off for the day." Then you reply again, "You realise you don't finish until 6. You had better put your gun back on." You still hold to that conversation? A. That's correct. Q. Do you believe that that constitutes a direction? A. I do. Q. How can you say the words "you had better put your gun back on" as a direction? A. How can I? Q. How do you say it's a direction? A. Well I expect people to do what I say. I've given numerous people directions during my time as supervisor, however I've never used the word "I'm giving you a direction". I don't think it would be appropriate every time I asked someone to do something to direct them. Q. I suggest to you that it would have been very simple just to say I want you to put you back come back (sic)? A. It could have been simple to do that but that's not the words that I said. Q. I'm suggesting to you that the words that you say that you've used, 'you had better put your gun back on; is not a direction in the proper sense of the term. Do you accept that or not? A. No I don't. Q. At the time that you said this do you recall where Sergeant Jason Clarke was? A. No I don't. I thought it was just yourself just us two having that conversation I wasn't even aware that Sergeant Clarke was there. (at Page 8) Q. A moment ago you said, you acknowledged my question that I said you looked up at the clock? A. That's correct. Q. How can you maintain what you say if I couldn't see the clock at the time, how can you maintain what I believed you were looking at? A. Well, it's common knowledge that there's a clock on that wall. Q. Okay do you accept also that there's a white board on that wall? A. Yeah but the clock's a fair bit higher than the white board. Q. How far higher than the white board? A. Maybe 40, maybe 50 centimetres higher, I'm not sure. Q. Fifty centimetres higher? A. Yeah. Q. I'll just suggest to you that I did not say 15 minutes but I said eight minutes, do you accept or would not accept that? A. I don't accept that. Q. I just take you to one of the issues I just asked you a moment ago about. your changes. Can I get you to look at paragraph 21 of your statement. In the second sentence of that you say, "I rely on the version of events detailed in paragraphs 12 to 13 above." You don't seek to change that sentence today, do you? A. I'd have to look at paragraph 105 of your affidavit before I can comment. Q. No, that's not my question. I'm asking you in particular not to the first sentence but to the second sentence, the words, "I rely on the version of events detailed in paragraphs 12 to 13 above.: That's your words? A. Yes. Q. Okay and today you come with an amendment to paragraph 12? A. Yes. Q. And in paragraph 9 all I'm just simply seeking to do is have you acknowledge that you have read the affidavit of myself, Senior Constable Wright, sworn 23 October 2013? A. That's correct. Q. For the Commission to know though you acknowledge that you've also read my second of my affidavits, I don't have it right in front of me but made in about March of this year? A. Yes, I've also read that. Q. In relation a moment ago the question I had in relation to whether your words constituted a direction or not I draw your attention to paragraph 21 of your statement? A. Yes. Q. You say, "I do not consider that I was confronting Senior Constable Wright but rather reminding him of his duties as a general duties officer" and it goes on but I don't propose to go to the second half of the sentence? A. Sorry, what was the question? Q. I'm just referring you to it and I'm just highlighting this issue. The words "but rather reminding him of his duties as a general duties officer" I put to you that again this highlights the fact that you did not give me a direction. Do you accept that or not? A. No, I don't. Q. What do you mean by the words "reminding him of his duties as a general duties officer"? A. Well, it's part of our duties to be wearing your gun belt at all times when you're part of the first response. (at Pages 11 & 12) Q. I'm going to bring your attention to an incident on 23 July 2012, do you recall that day at all? A. I recall I had court but I don't particularly recall the details of the day. Q. In relation to your day at court then what's your rostered shifts? A. It was 8am to 4.30pm. Q. Was there anything else notable about that date that you recall? A. No, there wasn't. Q. You're aware a complaint had been lodged in regards you removing your belt prior to the end of your shift on that day? A. That's correct Q. You're aware that the allegation in relation to that complaint was that you took your gun belt off yourself 30 minutes prior to the end of your shift? A. That's correct. Q. Did you take your belt off or not at 30 minutes prior to the end of your shift? A. I can't say if I did or I didn't, I can't recall that day and that was what I said in the investigation. Q. But you can recall that you were at court that day? A. That's right Q. What was the matter for at court? A. I can't recall. Q. You highlight the facts that you're reminded of your responsibilities in relation to completing shifts but you don't mention anything about taking your belt off? A. Yeah, as far as I was aware that the complaint was unsubstantiated and that was it. Q. But you do acknowledge then that the complaint that related to completing shifts as per roster also include matters to do with taking appointments going on 30 minutes prior to the end of the shift, do you accept that? A. That's what the complaint was about. Q. In relation to the complaint made against myself which is the subject of these proceedings did you provide a statement or a report to the investigator? A. No. Q. Were you ever asked to provide a statement or a report for the investigation? A. No. (at Pages 16 to 18)
19. Jason Andrew Clarke, is stationed at the Griffith Police Station and holds the rank of Sergeant. Between 29 April 2008 and 20 October 2014 he was Team Leader in the General Duties team and, as a qualified Weapons Instructor, was responsible for training staff in firearms and defensive tactics.
20. On 24 May 2012 he was rostered to conduct Weapons Training from 8.00 am to 6.30 pm. At approximately 5.15 pm, as he was walking past the gun room, he saw the applicant place his appointments belt in his locker.
21. He said he proceeded to the Supervisor's desk to check the roster. He noted that the applicant was rostered from 8.00 am to 6.00 pm. He saw LSC Johansen in conversation with the Applicant. He said he heard LSC Johansen tell the applicant that his shift had not finished and instructed him to put his appointments belt back on. He recalled that the applicant walked away from SC Johansen.
22. He approached LSC Johansen and had a conversation with him about the applicant and his appointments belt and then went in search of the applicant and found him at about 5.25 pm in the Crime Management Unit.
23. He had a conversation with the applicant during which he pointed out that he had heard LSC Johansen tell him to put his appointments belt back on. Sergeant Clarke ordered him to: "Go downstairs and put your appointments back on. Do you understand?" The applicant had responded: "Yes". The time that conversation took place was 5.35 pm.
24. Sergeant Clarke advised LSC Johansen of his discussion with the applicant, concluding with the words: "Please inform me if Senior Constable Wright does not comply with my direction".
25. He held the view that the failure of the applicant to comply with LSC Johansen's direction was reportable conduct. He therefore proceeded upstairs to speak to Inspector Gordon Dunlop, the Human Resources Duty Officer at the time. He advised him words to the effect: I have this afternoon seen Senior Constable Johansen give a direction to Senior Constable Wright to put his appointments back on after he removed them some time prior o the end of his shift. He has refused to do that and come up to the CMU. I have now also given him a direction to resume his appointments.
26. At about 5.52 pm, LSC Johansen attended Inspector Dunlop's office and reported that SC Wright did not restore his appointments and that he had just left the station saying: "You can dock me the 8 minutes".
27. On 31 May 2012, Sergeant Clark submitted a report of the incident, "Fail to Obey reasonable Direction" to Inspector Reneker, the Professional Standards Duty Officer at the time.

The Griffith Issue related to 28 December through to 30 December 2011

1. Annual leave in the Griffith LAC is allocated in around September, October, or November in the year prior to such leave being taken. The Griffith LAC Human Resources - Business Rules require officers to apply for enough leave in order to keep their leave balances below certain levels. Once the leave arrangements are fixed, any requests for change can only be approved by the HR Duty Officer whose role is more strategic than operational.
2. There are a number of "no leave" periods throughout the year. During those busy or critical holiday periods (such as Easter), officers are not allowed to take leave except with the approval of the HR Duty Officer.
3. An application for annual leave, or any leave during the embargo period, does not have to be referred up the chain of command to the HR Duty Officer if it has already been rejected further down the chain. For example should Inspector Craig Thorp, Griffith LAC, deny a request for such leave he does not have to refer the request up the chain of command to the HR Duty Officer.
4. As Inspector Thorp explained: This is because the current or upcoming roster required a closer consideration of the operational issue which may arise out of any last minute changes to annual leave. For example, if an officer at Hillston Police Station wished to take annual leave at short and it could not be accommodated on an operational level, then the request could be denied. The request would not move further up the chain of command. On the other hand, if the request could be accommodated and I supported it, then it would need to be moved up the change of command so that the leave request could be further considered by the HR Officer and then the leave balance updated if needed.
5. When the 2011 leave applications were finalised in late 2010, the applicant was approved annual leave from 4 to 24 December 2011. That fact was evidenced on the master document produced by Griffith LAC.
6. Senior Constable Grant Hilton Wright, the applicant, provided a sworn affidavit he deposed on 23 October 2013 comprising 170 paragraphs setting out in great detail a history of events that included many issues unrelated to the specific events addressed in P1200156 and in P1202297.
7. As at January 2011, a Microsoft Excel Spreadsheet was used as a diary for recording requested days off, court days and for other work purposes at the Hillston police station. The applicant observed: I was able to plan ahead the weekends that I required off for my children. These were only every fourth weekend, but they needed to be regular as my ex-wife had commitments to her step-son on alternate weekends. ..... I placed on the spreadsheets all weekends in 2011 that I needed.
8. Towards the end of March 2011 he successfully applied for two weeks Extended (Long Service) Leave to be taken in May 2011. On the evening of Sunday 28 March 2011, the applicant's ex-wife disagreed with his understanding that they had swapped weekends for the next visit of his children. His attempts to change the roster timetable accordingly were rejected.
9. On 16 June 2011 the applicant was served with a Warning Notice by Assistant Commissioner Michael Fuller, the Commander of the Southern Region, for his absence from the workplace on 18 to 21 April and on 20 to 22 May 2011. On or about 19 August 2011, SC Wright requested that he be allowed to forego his pre-approved leave arrangements for the period 10 to 15 October 2011 and to change his pre-approved leave from 4 to 24 December 2011 to the period 25 December 2011 to 15 January 2012 citing his childcare responsibilities as the basis for the application.
10. He was advised, on 16 September, by Sergeant Ryan, the Sergeant in charge of Hillston police station, that his application had been refused.
11. That decision remained unchanged despite his appeals on 16 September to Inspector Thorp, of Griffith LAC (whose responsibilities included the Northern Cluster of that area and line command for the Hillston police station) and to the Commander of Griffith LAC, Superintendent Rowan.
12. At the end of August 2011 the applicant endured the failure of a personal relationship which affected him to such an extent that he voluntarily hospitalised himself for two nights.
13. He resumed work with occasional sick leave breaks throughout September and October 2011. He changed doctors in late September 2011. His new doctor initially diagnosed him as suffering from an adjustment disorder but soon thereafter diagnosed him as suffering from depression.
14. On 2 November 2011 the applicant made a Workers Compensation claim which was initially rejected but later considered when his doctor determined his depression was work related.
15. The applicant attended the Sydney Police Centre on 8 November 2011 and was examined by the Police Medical Officer who placed him on restricted duties. On 12 December 2011 the applicant obtained a further WorkCover medical certificate that the Insurer subsequently declined on 21 December 2011.
16. On 23 December 2011 the applicant confirmed by email to Superintendent Rowan details of their telephone discussion earlier that day. The applicant stated his belief that a written instruction by the Assistant Commissioner for him to attend work over the following three weeks in line with the operational roster was redundant due to his restricted duties status at that time.
17. He further acknowledged the direction given to him by Superintendent Rowan to attend work starting 28 December 2011 for three days a week, six hours a day.
18. His email then went into detail about his carer's responsibilities and enquired about travel from Hillston to Griffith and available accommodation in Griffith. He concluded the email by complaining about the contact made by the Superintendent with his doctor.
19. On the following day (Saturday, 24 December 2011) the applicant sent yet another email to the Superintendent in which he advised that he did not intend to comply with his direction to work on the grounds that it was unlawful. He contended that the Superintendent had no lawful authority to contact his doctor whom he would not be attending until 12 January 2012 when his current medical certificate was due to expire. He concluded the email with the following words: I will not be intimidated either by your threats or A.C. Fuller's threats that more serious disciplinary action will be taken if I do not comply with the direction. I consider the direction unlawful and will stand by my belief. As far as I am concerned this is further evidence of discrimination and victimisation and I implore you to desist this action.
20. The applicant gave the following evidence under cross-examination: Q. At the bottom of the WorkCover certificate there's a box numbered, number 5, and that is the injured worker's consent that there can be exchange of information between the employer and the general practitioner, do you see that? A. Yes. Q. And that's your signature on the bottom of each of those? A. Yes. Q. So when you signed these certificates you signed them didn't you having read what you were consenting to? A. Yes. Q. And you were fully aware were you not at all times that your employer could make contact with your general practitioner? A. Yes. Q. One of the grounds that you raise in relation to why you say the direction was unlawful was that you say that Superintendent Rowan contacted your general practitioner in circumstances where he wasn't permitted to do that? A. Yes. Q. Do you accept that's wrong? A. No. Q. You don't? A. No. Q. You don't accept that the consent that your employer could made contact with your general practitioner meant that it was perfectly proper and, indeed, appropriate for those in the command to contact the general practitioner to ascertain what arrangements should be put in place to ensure that you would return to work to a safe working environment? A. No, because the WorkCover certificate was provided for the purpose of a Workers' Compensation claim. That was made on or about 2 November 2012 and it was provisionally declined on 21 December. Superintendent Rowan told me he contacted the doctor on 23 December after provisional liability had been declined. I then considered that that consent was then nullified Q. Even though you kept signing consent documents of exactly the same nature through to 2012? A. Because I had intents (sic) to appeal the decision. Q. But you kept signing those same consent documents through to 2012? A. The - well, yes, as I say, for the purpose of looking at appeal in the decision. Q. Isn't the position this, is that you thought that Dr Mahmoodi's certificates would probably mean that you could continue on sick leave and that you wouldn't actually have to attend work in accordance with the Commissioner if it was written directions, isn't that right? A. No. Q. You just thought, look, I was going to be able to string out these sick leave certificates? A. No. Q. And I won't have to attend work so I don't really need to turn my mind to whether or not I have to attend work in latter part of December 2011, isn't that right? A. No. Q. And do you recall that you had a telephone conversation with Superintendent Rowan on 23 December? A. Yes. Q. And in that conversation he made it very clear that you were directed to attend work as per the roster? A. Yes, as per a roster that he gave me at the time. Q. And you accept don't you that Superintendent Rowan, as a senior officer in the command could make a direction that you attend work? A. He can make a direction, I accept that, yes. Q. But you made it pretty clear in an email sent to him around 8pm on 23 December 2011 that you would not be attending work? A. Yes. Q. I put this to you, Senior Constable Wright, you made absolutely no attempt to organise your childcare arrangements when you were told back on 6 December 2011 that you would be required to work in that period between Christmas and New Year, isn't that right? A. Yes. Q. And in fact your mother had offered to come out and assist you and you'd told her, "Don't worry, you don't need to come"? A. No, I'd asked my mother what she was able to do and I'd spoken with her about getting her out here. She didn't ask me, I asked her. Q. And there was no misunderstanding on your part as to what Superintendent Rowan was directing you to do in terms of attending for work on 28 December, isn't that right? A. That's because he contacted me at 20 past 4 on 23 December on the Friday afternoon and I had two weekend days and two public holidays before the first day of the start. Q. But you'd known for some period of time-- A. No. Q. … that you'd be required to work these days, isn't that right? A. No, I was given the roster at 4.20 pm on 23 December, the actual roster and the required hours that I was required to perform duty, and it was confirmed at that time that I was required then to work at Griffith. Q. And all the way along, and I put it to you again, you just thought that you'd be able to remain on sick leave and you wouldn't be required to attend work? A. No. Q. And that would have been very convenient to you because while you were on sick leave not having to attend work you'd be able to discharge your carer's responsibilities, isn't that right? A. No. Q. You told Superintendent Rowan on 24 December that you would not be complying with the direction for work? A. That's right. Q. When you failed to attend on your roster shift on 28 December do you recall Acting Superintendent Smith contacting you? A. Yes I do. Q. And he told you again as to the dates and the times that you were required to attend for work, do you recall that? A. Yes. Q. And he told you in the clearest terms on 28 December that if you did not attend for work as rostered your absence would be unauthorised and you may be subjected to disciplinary action? A. Yes. Q. And aware of that warning you failed to attend on 29 December? A. Yes. [at pages 28, 29 and 30] Q. And you failed to attend on the 30 December? A. Yes. Q. And you did that with full knowledge that you were disobeying a direction and that you may be subject to disciplinary action? A. Yes. Q. then I think you say that you didn't return to work until sometime around, what, 17 January 2012? A. Yes. Q. And you then became aware on your return from work that there would be an investigation in relation to your December absences? A. Yes. Q. And that investigation was undertaken by an Inspector Blanchard, who was not a member of the Griffith LAC, isn't that right? A. That's correct. Q. And you understood did you not that he was based with the Albury LAC? A. Yes. Q. And he'd had no dealings with you in the past, isn't that right? A. That's correct. [at p 31]
21. From January 2012 the applicant was required to work each day at Griffith police station "due to a need for 'increased supervision'".
22. On 12 April 2011, and in May and October 2011, the applicant applied to the ADT alleging that being required to attend for duty as rostered during various periods in the Easter school holidays in April 2011, in May 2011 and over the Christmas school holidays in 2011 and 2012 constituted "indirect discrimination". These issues will be discussed later in this Decision.
23. After studying and considering all of the evidence and attachments to the Respondent's witness statements, the Commission has focused only on that evidence which relates to issue P1200156 (that is, the refusal of the applicant to attend work from 28 December through to 30 December 2011).
24. Gerard Michael Ryan is general duties Sergeant at Hillston police station in the Griffith LAC, a position he has held for over 8 years. He is responsible for preparing rosters for all police stations within the Northern and Southern Cluster, which includes Hillston police station.
25. Sergeant Ryan explained that the local leave spreadsheet utilised by Hillston police station was merely a working draft.
26. The annual leave amended period sought by the Applicant in his application on 19 August 2011 (25 December 2011 to 15 January 2012) clashed with the entire annual leave period already approved for another officer at Hillston police station and with the first week of annual leave of Sergeant Ryan.
27. Sergeant Ryan did not approve the application
28. Inspector Craig Thorp was stationed at Griffith LAC from October 2008 to September 2013 during which time his responsibilities included the Northern Cluster and line command for the Hillston police station. He also reviewed leave or rostering applications through the chain of command.
29. Inspector Thorp approved the change to the October 2011 leave arrangements and therefore he followed the procedure and referred the application up the chain of command to the HR Duty Officer, Inspector Dunlop. As it happened, the application he forwarded up the line also contained his rejection of the application to change the December 2011 leave. That rejection was supported by Inspector Dunlop on operational grounds.
30. Inspector Thorp was made aware of a written request by S C Wright to Superintendent Rowan, dated 10 October 2011, seeking a review of the decision rejecting the change in his rostered annual leave (from 4 - 24 December to 25 December 2011 - 15 January 2012). He was also aware that Superintendent Rowan had rejected the application for leave for the period 25 December 2011 - 15 January 2012.
31. A written direction from Assistant Commissioner Fuller to S C Wright required the latter to attend for duty on 28, 29 and 30 December 2011 on restricted duties.
32. The applicant did not comply with that direction. On 31 December 2011, whilst at Hillston on work related matters, Inspector Thorp visited the applicant's home to check on his welfare but had little recall of the majority of their conversation. He did, however, recall saying to him words to the following effect: Grant, this situation is becoming ridiculous. You keep not attending for work. But the problem is not going to disappear. Not turning up to work is just stuffing everyone about. This is a serious issue. The Command has to take these things seriously. It cannot just be looked over.
33. S C Wright did not attend for work any of the days on which he had been rostered: 3, 4, 5, 9, 11, 13 and 16 January 2012. His first day at work was on 17 January 2012.
34. Superintendent Michael James Rowan is the Local Area Commander of Griffith LAC. He is responsible, among other things, for commanding all operational and administrative activities of the Griffith LAC, the deployment of local police resources, and managing staff discipline.
35. This decision focuses purely on the evidence relevant to this review - that is, the Superintendent's evidence as it relates to the December 2011 issue.
36. On 31 August 2011, S C Wright produced a medical certificate issued by Dr Bronstein of Hillston stating that he was unfit for duty from 31 August to 14 September 2011. On 14 September 2011 a clearance certificate was issued stating the applicant was fit to resume duty from 15 September 2011.
37. On 23 September 2011 the applicant provided a further medical certificate stating that he was unfit for duty from 23 September to 30 September 2011. That certificate was signed by Dr Mahmoodi of Griffith.
38. On 12 October 2011 the applicant provided a further medical certificate stating that he was unfit for duty between 12 and 14 October 2011.
39. In the interim, on 10 October 2011, the applicant made a written request to Superintendent Rowan seeking a review of the decision rejecting his application for change in his rostered annual leave in 2011.
40. It was then that Superintendent Rowan became aware of the views of Sergeant Ryan, Inspector Thorp and Inspector Dunlop, all of whom had rejected his application. Superintendent Rowan conferred with Sergeant Ryan and Inspector Thorp who both confirmed their rejection on the basis of operational requirements as a police presence was required during the holiday/festive season.
41. Superintendent Rowan stated that he also requested a report from Inspector Reneker, the Duty Officer with responsibility for deployment across the Command, to ensure a level of independence in the decision making process.
42. On 25 October 2011, Inspector Reneker recommended that the applicant's request for leave from 25 December 2011 be declined on the basis of operational requirements. Superintendent Rowan, on 26 October 2011, formally declined the request of the applicant to take leave from 25 December 2011 to 15 January 2012 and provided the reasons in writing. In coming to that decision, the Superintendent stated that he had balanced the issues raised by SC Wright against the following operational factors: 1. The result of granting the leave would be that only one officer would be at Hillston during the period. However, due to rest days and other rostering requirements, granting leave would mean that there were no police officers in Hillston on duty from 3 to 11 January 2012; 2. During the Christmas period there is significant itinerant labour in the area and to not have a presence would be operationally flawed; 3. Utilising police from Goolgowie was not tenable as the officer based at Goolgowie was predominantly rostered on late shifts during the request period and consequently, there could be safety and fatigue issues for that officer; 4. Given the large influx of probationary officers into the LAC at the time, the officer stationed at Rankin Springs was seconded to Griffith to induct the probationary officers in the request period (and was not, therefore, available to cover at Hillston); 5. Senior Constable Wright was granted leave over the previous Christmas period in 2010; and, 6. Senior Constable English and Sergeant Ryan had already made arrangements for their annual leave period over December 2011 and January 2012, and it would be unfair and unreasonable to disturb those arrangements
43. Superintendent Rowan stated that he assumed, having provided a formal response, that, providing the applicant was fit for duty, he would resume his normal duty at the Hillston police station. Superintendent Rowan, on that basis, directed the rosters for Hillston station for December and January to be posted as soon as possible after 26 October 2011 so that the applicant would be aware of the exact dates and times at which he would be expected to attend duty over that period and would have sufficient time to make any necessary child care arrangements.
44. Also on 26 October 2011, the applicant provided a further medical certificate, issued by Dr Mahmoodi and dated on the same day, stating that he was unfit for duty between 19 and 23 October 2011.
45. On 9 November 2011, the applicant provided a WorKCover medical certificate stating that he was unfit for duty between 28 October 2011 and 19 November 2011. The diagnosis was stress and anxiety plus reactive depression. The The claim was declined by WorkCover on 21 December 2011. The applicant provided a medical certificate on 16 November 2011 stating that he was unfit for work between 16 November and 23 November 2011.
46. A further medical certificate was provided dated 30 November 2011 stating that the applicant was "fit for suitable duties" from 1 to 15 December 2011 working six hours per day. The medical certificate stated "No stress/light duties". It provided no advice as to the nature of the "light duties".
47. On 6 December 2011, Assistant Commissioner Fuller, Regional Commander, directed the applicant to attend for work on his rostered days between 26 December and 15 January 2012. Whilst the applicant had not been granted leave for Christmas Day he had not been rostered to work on that day.
48. The Applicant obtained a medical certificate from Dr Mahmoodi, dated 12 December 2011, stating that the applicant was fit for suitable duties for three shifts per week each of six hours duration. The medical certificate was unclear as to the type of restricted duties that SC Wright could perform.
49. Local Area Manager, Ms Brenda Stedman, advised Dr Mahmoodi by email on 15 December 2011 that further clarification was required from him prior to the applicant's return to work to ensure that suitable duties would be provided. Ms Stedman followed up that email with a letter mailed to Dr Mahmoodi that day.
50. Superintendent Rowan recalled that, about a week later, Ms Stedman confirmed to him, during a face to face discussion that the applicant could be rostered on restricted duties until 12 January 2012: I have spoken to Dr Mahmoodi. He has confirmed that Mr Wight is able to attend Griffith station for three six hour shifts per week. Travel time is in addition to those shifts. We have a new medical certificate for the period to 12 January 2012 now.
51. As the roster which Assistant Commissioner Fuller had previously directed the applicant had been based on the assumption that he would be fit for the full range of duties at Hillston police station, a new roster was developed for SC Wright to perform day work duties in accordance with his doctor's assessment at Griffith Station as there were no suitable light duties available at Hillston.
52. Superintendent Rowan advised the applicant by telephone on 23 December 2011 in words to the following effect:- Grant, we have made enquiries with Dr Mahmoodi to clarify the types of restricted duties you can perform. Dr Mahmoodi says you can work, but for restricted periods of time. Since that means you won't be able to work in Hillston, you must attend Griffith police station to perform duties in the Crime management Unit for six hours per day on 28, 29 and 30 December 2011. These are all non-public holiday weekdays, and 28 December 2011 is one of those days on which you were previously rostered and directed to perform duty. You will also be required to perform suitable duties at Griffith in the coming weeks. Also, Dr Mahmoodi has said that you can have an appointment to see him tomorrow if you want.
53. Superintendent Rowan stated that he had read the applicant's statement and sought to challenge parts of it. The Commission, as presently constituted, held that the challenge to those parts would not to be pertinent to the subject matter of this review.
54. Superintendent Rowan did however confirm that the applicant had emailed advice to him on 23 December 2011 that he would not be able to organise child care and was not likely to attend for work. Emailed confirmation advice was received on 24 December 2011 that he would not be complying with the direction to work.
55. Superintendent Rowan then proceeded on annual leave and was relieved by Acting Superintendent Paul Smith. Superintendent Rowan attached a copy of an email dated 28 December 2011 from Acting Superintendent Smith to the applicant reminding him of the dates he was required to work and stating that, as Crime Manager Griffith LAC, he would be supervising his suitable duties personally.
56. It is a matter of record that the applicant did not attend for duty on any of the days set out in Acting Superintendent Smith's email which were: 28 to 30 December 2011; 3 to 5 January 2012; and 9, 11 and 13 January 2012 Each of which was a non-public holiday weekday.
57. Also attached to Superintendent Rowan's statement was a copy of a medical certificate dated 13 January 2012 in which Dr Mahmoodi confirmed the applicant's ability to perform light duties from that date to 10 February 2012 working eighteen hours per week. It also anticipated that, following the next review on 10 February 2012, the applicant may be able to return to working 38 hours per week.
58. Superintendent Adrian McKenna, Director, Management Action and Workplace Services, with Professional Standards Command (PSC), has responsibility for overseeing how an individual officer might be managed or disciplined if found to have engaged in misconduct or unsatisfactory performance.
59. Superintendent McKenna stated that he first became aware of the issues related to the applicant on 29 December 2011 when he received an email from Superintendent Rowan seeking advice about how to handle the applicant's absences from work over previous days.
60. After receiving that email, he became aware that the applicant had already filed complaints with the Anti-Discrimination Board relating to Superintendent Rowan personally, as well as to actions said to have been taken by other members of Griffith LAC.
61. He concluded that, in light of those facts, Superintendent Rowan had decided that any investigation into the applicant's conduct should be conducted by an officer based outside the Griffith LAC. Superintendent McKenna did not participate in the decision that led to the appointment of Detective Inspector Brad Blanchard of the Albury LAC to carry out that investigation.
62. The refusal to attend for work and the appointments belt issues related to the applicant came before the Internal Review Panel (IRP) on 6 July 2012 in line with the procedure set out in the Police Commissioner's instruction 12/01.
63. Superintendent McKenna holds certain delegations of authority, including a delegation from the Commissioner of Police authorising him to exercise the powers and duties of the Commissioner under section 173 of the Police Act 1990.
64. Superintendent McKenna took on the role of delegate for the Commissioner of Police and proceeded to consider, from the reports produced by Detective Inspector Blanchard, whether or not reviewable action might be appropriate in respect of the applicant's two matters.
65. On the basis of the material before him, Superintendent McKenna determined that a subsection 173(5) notice should be served on the applicant in respect of his alleged conduct.
66. Subsection 173(5) of the Police Act 1990 provides that: Before making an order for reviewable action, the Commissioner: must cause to be served on the police officer concerned a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order; and must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order; and must take into consideration any written submissions received from the police officer: During the period of 7 days referred to in paragraph (b),or If during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which the notice is served.
67. He directed that a show cause notice pursuant to subsection 175(5) be prepared for his consideration and review, but did not finalise the subsection 173(5) notice until 14 September 2012 due to "without prejudice" discussions being held at that time before the Anti-Discrimination Board.
68. The applicant responded to the subsection 173(5) notice on 28 September 2012 and 10 October 2012. In addition Superintendent McKenna received emails from the applicant on 11, 12, 18, and 26 October 2012.
69. One of those emails from the applicant requested the ability to speak directly with the Professional Standards Committee (PSC).
70. The PSC is a NSW Police Force specialist command having responsibility for setting standards for performance, conduct and integrity and for investigating serious criminal allegations, corruption and high risk matters where police officers may be involved. As Director, Management Action and Workplace Services within PSC, Superintendent McKenna oversees both the process and administration of managing conduct of individual police officers.
71. In order to provide an independent response to the questions raised by the applicant, Superintendent McKenna asked Inspector Patricia Houlohan who is attached to the PSC to consider the issues raised by the applicant and to provide him with a response.
72. He also instructed Inspector Houlohan that, in case the applicant had misconstrued the guidelines in respect of the time he had in which to respond to the subsection 173(5) notice, the applicant should be provided with an extension of time to 2 November 2012 to respond to that notice.
73. Inspector Houlohan responded to the applicant on 31 October 2012 and the email in response indicated that she corrected some of his misconceptions and referred him to information already provided to him by Superintendent McKenna.
74. The "prejudice discussions" between the parties held before the Anti-Discrimination Board failed. At the conclusion of communication between the Applicant and Inspector Houlohan, Superintendent McKenna considered the applicant's responses to the subsection 173(5) notice.
75. On the basis of all the material before him, he formed the view that the conduct of the applicant in respect of both of the incidents before him could be established. He further considered that each of those incidents amounted to misconduct pursuant to subsection 173(2).
76. Section 173(2) provides that: The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: A reduction of the police officer's rank or grade, A reduction of the police officer's seniority, A deferral of the police officer's salary increment, Any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate.
77. Superintendent McKenna considered the applicant's responses and claims of discrimination that he had made against Superintendent Rowan and officers of Griffith LAC more generally, and arrived at the conclusion, without laying the blame on anyone in particular, that there had been a serious breakdown in relationships.
78. He further formed the view that the breakdown in the relation may have contributed to the fact that SC Wright was not complying with directions of senior officers.
79. As stated earlier, Superintendent McKenna was aware of the discrimination/and or victimisation complaints lodged by the applicant with the Anti-Discrimination Board in respect of refusal to grant leave over Easter 2011 and a weekend in May 2011, as well as a refusal to transfer to Yenda and Whitton in 2011.
80. Those views led Superintendent McKenna to consider relocating the applicant from the Griffith LAC, particularly in view of the contents of an email he received from the applicant on 10 October 2012 in which the Applicant stated: "I want out of this Command as early as possible, so I can get on with my life". Superintendent McKenna determined that it was appropriate for the disciplinary action to be in the form of a transfer.
81. The applicant had not expressed a preference for any particular location in his responses to the subsection 173(5) notice apart from mentioning his intention to apply for the position of Lock-Up Keeper at Nymboida, a small village 40 km south west of Grafton.
82. Superintendent McKenna was mindful of the need for sufficient supervision but was also mindful of the fact that to move the applicant out of the Southern Region would likely move him further away from his children than he was in Griffith.
83. Superintendent McKenna discussed the matter with the Southern Region HR Manager and determined that Lake Illawarra LAC (LILAC) offered the best location to address both the organisation's need and the needs of the applicant.
84. Superintendent McKenna held the view that each of the issues (the conduct over Christmas 2011 and the conduct relating to his amenities belt), proven on the balance of probabilities, would reasonably attract a disciplinary sanction because of their serious nature.
85. Under examination-in-chief, Superintendent McKenna, provided the following evidence: Eastman:Q. At any stage did it cross your mind to consider a non-disciplinary transfer in light of the material that was before you? A. No, but the discussion about the re-location was that in an escalation of management action, given that there had been some disciplinary action taken with Mr Wright previously for other conduct, that it was just a natural flow-on given that the message had not been received about obeying directions in the workplace, that it would be a wise thing for a disciplinary transfer to be the correct measure. That was the advice from panel and I concurred with that advice. Q. Moving then to a disciplinary transfer, what are the circumstances in which a disciplinary transfer might arise and again what would happen to an officer who's transferred in those circumstances? A. A disciplinary transfer is more where there's been an elevating level of conduct and where the officer, endeavouring to manage the officer, and a disciplinary transfer would be attached to management action where we feel that it needs to be done as a strong message to the person, that their conduct is unacceptable. That as a result of previous conduct history and/or the particular conduct in case in question at that time that they need to be reminded that this is something the organisation's doing as a remedial and disciplinary measure. So it's got more force to it rather than a non-disciplinary transfer. Q. ..... the Commissioner - her attention's been directed to Senior Constable Wright's comments to you that he wanted a transfer and he said he needed to get out. You recall that part of your evidence? A. I do recall as part of the email exchange and information exchange relevant to this particular officer Mr Wright that he expressed quite clearly that he wanted to be relocated. Q. At any stage did it cross your mind to consider a non-disciplinary transfer in light of the material that was before you? A. No, but the discussion about the re-location was that in an escalation of management action, given that there had been some disciplinary action taken with Mr Wright previously for other conduct, that it was just a natural flow-on given that the message had not been received about obeying directions in the workplace, that it would be a wise thing for a disciplinary transfer to be the correct measure. That was the advice from panel and I concurred with that advice. [at Pages 58 & 59]
86. During cross-examination, Superintendent McKenna, responded as follows: Applicant: Q. Why do you accept that looking after children is not a reason-able defence to attending work? A. Because if we had a policy that said everybody who could say that they had child carer's responsibilities was a defence to not attending work as a general statement and that was quite supported it would be very difficult to police the community in New South Wales. Q. But we've got, do you acknowledge that there is in existence called the Police Force Carer Responsibility guidelines? A. Yes absolutely. Q. And when I raise a child care responsibility that's completely dismissed by the investigator? A. I completely accept that as the investigator's finding and/or comment within these papers because the sequence of events leading to that as a reasonable excuse for not attending work I don't find satisfactory on its own for carer's responsibilities following a written direction from an Assistant Commissioner of Police. (at Page 90) Q. ..... Look, paragraph 8 you make a comment, "I report to the Assistance Commissioner, Professional Standards Command". Do you acknowledge that is Assistant Commissioner Michael Fuller? A. No. Q. At the time of making this statement? A. Yes. Q. At the time of making the statement he was Assistant-- A. Time of making the statement he was Assistant Commissioner. Q. Prior to his appointment to the Professional Standards, was he the same Assistant Commissioner Fuller that was Commander of Southern Region? A. Yes. Q. In paragraph 10, halfway through: "However, in circumstances where the Commander may be subject to a potential conflict of interest, whether real or perceived or there may be otherwise be a perception that the Commander may not be able to make a decision at arm's length, then it would be usual for another officer with an appropriate delegation such as yourself." Now you put yourself in that position as an appropriate delegation? A. I don't put myself in that position, there's a policy that governs that ‑ the delegations you should have by the Commission and it doesn't speak about me personally, it speaks about the position I hold. (at Pages 67 and 68) Q. On receiving and reading the investigations material, did you have any concerns as to whether there was anything more that could be done on them to make a fully informed decision in relation to the order? A. No. Q. Was there anything at any time you directed the investigators to cover or re‑examine? A. It's not my role. (at Page 76) Q. Do you accept that the Workplace Equity Unit which I think it's called exist in there to provide advice in relation to workplace equity matters and particularly in relation to harassment, discrimination and bullying in the workplace? A. Yes. Q. Okay, is there anywhere in this file advice or information from that unit in relation to the circumstances in this complaint? A. Not that I'm aware no. Q. Would that be something that would be relevant to the investigation? A. The investigation, which investigation? Q. What we are talking about, which is the leave issue and not turning up to work between December and January? A. So your question is, is that relevant to it? Q. Yes-- A. No, no it's not relevant. Q. Wouldn't that be relevant to obtain some form of advice or statement from them? A. No. (at Pages 78 and 79)

The applicant

1. In his application for a review by this Commission, the Applicant listed nine particulars in support of his application including the following: 1. The Applicant has neither breached the Code of Conduct nor committed any actions that would constitute misconduct. In the alternative, if the Applicant has committed actions that would constitute misconduct pursuant to the NSW Police Code of Conduct and Ethics they are not sufficient to justify the order pursuant to section 173 of the Police Act. 2. The Respondent has failed to properly consider submissions made by the Applicant. 3. The Respondent failed to properly consider the Work Health and Safety implications for the Applicant in wearing his appointment belt for a five hour drive in circumstances where the Respondent has in its possession material that should cause the Respondent concern. 4. The Respondent has failed to comply with clause 50 of the Police Regulations 2008 in the investigation of this matter leading to the Applicant suffering prejudice under the circumstances.
2. A 35-page sworn affidavit, filed on 23 October 2013 by the Applicant, was accepted by the Commission as presently constituted on 22 July 2014 as Exhibit W1(a).
3. The Applicant included an amount of historical events related to events that are unrelated to the two principal issues under review: P1200156 - The Griffith issue and P1202297 - The Appointments Belt issue. He also Included a one hundred attachments marked from GW 1 to GW 100.
4. Included in those attachments were various information related to, and exhibits tabled before, hearings of his complaints he had addressed to the President of the Anti Discrimination Tribunal (ADT) on 12 April, 16 May, 1 June, 2011 and 18 July 2012. Only the July 2012 complaint is relevant to these proceedings as it related to the Annual Leave 2011 issues.
5. The Applicant filed a second deposition, sworn on 14 March 2014, containing responses to statements of Superintendent Adrian McKenna; Superintendent Michael Rowan; Inspector Craig Thorp; Sergeant Gerard Ryan; Sergeant Jason Clarke; and, Senior Constable Johansen
6. I will address the relevant parts of those responses in my consideration of the evidence as a whole. The deposition also had six attachments marked from GW 101 to GW 106; all of which I have read.
7. GW 101 was a copy of the judgment of the Civil and Administration Tribunal New South Wales (NCAT) in Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 which I will address later.
8. As the Applicant had requested the Respondent to put its submissions first, the Applicant's oral submissions to the Commission on 23 July 2014 were a joint Submission in Chief/Submission in Reply, they can be summarised as follows: 1. That the Police Carers' Responsibilities Guidelines refer to 2001 amendments to the Anti-Discrimination Act 1977 (NSW) by recognising the changing structure of work and family life and the growing number of women and men in the workforce who are also primary carers of children --- and that The central feature of the carers' responsibilities discrimination law is that work arrangements need to be as flexible as possible and this means that the New South Wales Police may need to provide extra or special arrangements to assist employees to meet their carer's responsibilities if it is reasonable in all the circumstances to do so. (at 53) 2. That the evidence detailed in the affidavit of his former wife, Angela Hookham, (Attachment GW82 before the ADT) indicates the steps he took to try and get her to change the time of his children's visits; and, claims that evidence detailed in the affidavit of his mother, Sue Wright, (GW83) indicates the steps he took to obtain child care to assist so that I could attend the rosters as the respondent. (at 56) 3. That the claim that he failed to comply with a direction of M J Fuller, APM Commander of Southern Region that was served on him on 6 December 2011. That written direction required him to perform duty in Hillston. (56-57) 4. That on or about 19 August 2011 when he applied for a change to his annual leave, there was no evidence at that time that any of the leave had been granted to Senior Constable William English. As at September, October 2010 he nominated preferred leave dates in line with Sergeant Ryan. At that time Senior Constable English was not at Hillston, he did not start at Hillston until February 2011. (at 58 and 65) 5. That during the September/October 2010 annual leave nomination period the applicant nominated the three weeks leading up to December 2011 subject to re-applying at a later time to have it changed. (at 66) 6. That his case is not that he have deliberately disobeyed orders, but about his inability to properly comply and, more particularly, whether the orders were reasonable and lawful. (at 58) 7. That the leather belts worn by police are a problem, and have been identified as a problem for over ten years by the police as causing back pain, back injuries, soreness, numbness, a whole range of symptoms. (at 63) 8. That Superintendent McKenna as the decision maker of this order relied on an investigation that was deficient as no evidence was obtained from various people who may or may not be able to provide relevant evidence. For example, SC Johansen was not asked to provide a statement or a report for the investigation. Evidence that simply went towards a finding that the applicant had engaged in such conduct had been obtained. (at 64 and 65) 9. That Hillston is a town of 1,000 people 110 kilometres north of Griffith and Cobar is the next main centre and that is 260 kilometres to the north. The only childcare facility in Hillston was not appropriate to a seven and ten year old child at the time. He did seek other childcare for the children. In support of that point, the applicant brought the attention of the Commission the case of Reddy v International Cargo Express [2004] NSWADT 218. This was a case where a mother of a young child sought a flexible working arrangement with her employer and similar issues of the employer were raised in relation to late notice or late attempts to secure childcare. Quoting from that judgment at paragraph 60: "It may be that Mrs Reddy was remiss in not moving earlier to locate suitable care for her daughter or that she had not exhausted all alternatives when she concluded she could only work part time. Presumably there must have been some childcare available somewhere in Sydney that would have allowed Mrs Reddy to return to fulltime work. In our view it is not necessary that Mrs Reddy provide proof that no fulltime care was available, regardless of when her search commenced. It is enough that she establishes that she made reasonable attempts to find appropriate care. We are satisfied that she did." Prudently in that comment the Tribunal says: "Presumably there must have been some childcare available somewhere in Sydney that would have allowed Mrs Reddy to return to fulltime work. In our view it is not necessary that Mrs Reddy prove that no fulltime care was available, regardless of when her search commenced. It is enough that she establishes that she made reasonable attempts to find appropriate care. We are satisfied that she did." At para 85: "The respondent contends that it was she not it who acted unreasonably by leaving childcare arrangements to the last minute By the tone of her demand and her failure to get in contact with either Mr Kerricodis(?) or Mr Timmerman despite their longstanding open door policy. Mrs Reddy may not have acted with perfect forethought in seeking childcare for her daughter but it appears to us that she took reasonable steps to secure a childcare place. The company complains that it had only two months to consider her request. While this may have stretched things somewhat it seems to us that two months ought to have been sufficient time to consider the proposal, weight the alternatives, discuss any possible variance of the plan and to have implemented a trial. We therefore cannot conclude that Mrs Reddy acted unreasonably in the way she approached the problem that confronted her. She had a child to care for, a job to return to and she sought to address that dilemma but in any event is not the reasonableness or otherwise of her conduct that is in issue, rather it is the reasonableness of the requirement that she work fulltime. Her conduct is only relevant insofar as the timing of the request and any response or otherwise to any alternatives that may have been proposed. It is one of the factors to be considered in determining whether in all the circumstances the requirement was unreasonable." The applicant submitted that in his circumstances he had provided reasonable attempts to secure childcare for his children. (at 67 to 69) 1. That Superintendent Rowan's contact with his doctor on 23 December 2011 was unlawful because any consent that had been given by the applicant had been invalidated on 21st December 2011 when Employers Mutual Limited formally declined his workers compensation claim. (at 69) 2. The rejection by the Civil and Administrative Tribunal on 24 February 2014 of his claim of discrimination in regard to the order to work in December 2011 is irrelevant to the matter before the Commission. 3. What was important was his belief at that time that the risk disciplinary action by not attending for work was outweighed by his need to ensure that his two children aged seven and ten at the time were not left at home alone by themselves. (at 70) 4. That on 23 July 2012, SC Johansen, who told him to put his appointments back on 24 May 2012, was witnessed by the applicant removing his belt 30 minutes before the end of his shift which was from 8.00 am to 4.30pm. A complaint was made but SC Johansen, whilst he could recall that he had been at court that day, had no recollection of what else had occurred that day. 5. That response was provided at the investigation of the alleged incident and the complaint was unsubstantiated. The applicant submitted that it went to the reasonableness of the requirement that SC Johansen "enforced on him" some two months earlier. (at 71) 6. That his treatment related to the appointments issue was beyond power, harsh, unreasonable, and unjust. He referred to Whyte v Commissioner of Police 2010 NSW IRC 84 and, in particular, to paragraph 19 in that decision: 19 The onus on the applicant to establish a case that the orders of Supt Fehon were 'beyond power' and/or were 'harsh, unreasonable or unjust' is a mixed question of fact and law: See Allchin v Commissioner of Police (No 2) (2007) 168 IR 170. It is now well accepted (see Newton v New South Wales Police Service (1999) 87 IR 66) that the words 'harsh, unreasonable or unjust' have the same meaning in s 175(2) as they have in s 181E review proceedings, which, in turn, have the same meaning as they have in s 84 of the Industrial Relations Act 1996. Moreover, each of these words have their own discrete meaning as was explained in Byrne v Australian Airlines Limited (1995) 185 CLR 410: Clause 11(b) is aimed at the situation where the termination of employment brought about by the dismissal, rather than the steps leading up to the dismissal, or lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, unjust or unreasonable because it is based on a ground defined as such by clause 11(b). This refers to such matters as termination "on the ground of" race, colour, sex and marital status. 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. See also Laird v Commissioner of Police [2001] NSWIRComm 253 and also Commissioner of Police and Wayne Edward Collins. (at 72) The applicant added that Assistant Commissioner Fuller and Inspectors Blanchard and Dunlop each had a conflict of interest in regard to the order now under review. On that basis, he submitted that this order is "beyond power". (at 73)

The Respondent

1. The Respondent's submissions may be summarised as follows: 1. The Applicant breached the Code of Conduct, specifically Part 5, on two occasions - first, by disobeying a direction to attend for duty on 28th - 30th December 2011, and second, by disobeying two directions to replace his appointments belt on 24th May 2012 2. In oral evidence, the Applicant had accepted that there is a Police Code of Conduct and Ethics. He agreed that he is obliged to act in accordance with the Code of Conduct in his professional and personal capacity. 3. Regulation 8(1) provides that Police officers are to 'comply with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them'. Regulation 5 states that each of the following ranks is higher than the rank of Senior Constable: Chief Superintendent; Superintendent; Chief Inspector; Inspector; Senior Sergeant and Sergeant. 4. On 6 December 2011, Commander Fuller issued a written direction to the Applicant which stated: You are rostered to work on the following dates and you are required to attend for duties on these dates: 26th, 27th, 28th, 31st December 2011 and 1st,4th,5th,6th, 12th, 13th, 14th and 15th January 2012 1. The written direction was clear and, contrary to the Applicant's belief, it was not a direction that he only attends for duty at Hillston. The direction was that the Applicant was rostered for duty on the specific dates and required to attend for duties. 2. A similar direction had been made prior to the Applicant failing to attend for duties on rostered dates in April and May 2011. The Commander's direction also made it clear that a failure to attend for duty would be treated as misconduct. 3. The direction was clear and the Applicant was required to comply with the direction from a senior officer. Regulation 8(2) provides, "In particular, a police officer is required: (a) to serve wherever the officer is duly directed, and (b) to perform such police duty as may be duly directed, whether or not during the officer's rostered hours of duty." 4. The Applicant, as a police officer, was bound by Regulation 8 at all relevant times. The requirement to promptly comply with lawful orders under Regulation 8 is not subject to a 'reasonableness' requirement. 5. A police officer, while rostered off-duty, on annual leave, or otherwise absent, is subject to the provisions of the Regulation and the Police Code of Conduct (Reg 9(1)(a)). The Applicant, as a police officer, would be held responsible for any misconduct by him while not attending for duty. Moreover, Regulation 9(1)(c) provides that as he was not on sick leave, he was liable to be recalled to duty as if he were on duty at the time. 6. The Regulations demonstrate the importance of these matters to the orderly operation and management of operational policing in New South Wales. The Police Commissioner and the general public are entitled to expect that officers will attend for duty when rostered or when required. 7. The Administrative Decisions Tribunal (ADT) on 24 February 2014 dismissed the claims of the Applicant that his being required to attend work over the Christmas 2011 and New Year 2012 period was indirect discrimination on the ground of his responsibilities as a carer. (In the Respondent's oral submissions on 23 July 2014, on pages 37 to 41 of the transcript, the Commissioner's attention was drawn to the key findings and the nature of the claimed discrimination.) 8. The approach by Ms Brenda Stedman to the Applicant's GP did not render the order given by Supt Rowan unlawful. Even if consent for the contact had not been given, the approach was not so closely connected with the order that it could be said to affect the legality of that order. 9. Superintendent Rowan already had in his possession the medical certificate (provided by the Applicant) which stated that the Applicant was fit for suitable duties. The Superintendent would have been acting lawfully to determine for himself what 'suitable duties' meant, and could have ordered the Applicant to attend work on that basis. 10. On 24 May 2012, the Applicant was given two directions to put his appointments back on. The first by his Team Leader, LSC Johanson, and the second by Sergeant Clarke. There is no dispute that he failed to comply with these directions. The Applicant's admission should be sufficient to find that the failure to comply with the directions was a breach of the Code of Conduct. 11. The claim by the Applicant that he was never directed by either LSC Johanson or Sergeant Clarke should not be accepted in light of the evidence of both of those officers. Confirmation that the directions were given is provided by Sergeant Clarke's contemporaneous report; and, the fact that, throughout the initial investigation of the complaint, the Applicant did not challenge the fact that the directions were given. 12. The directions were lawful. The matter about which the directions were given was within the Applicant's scope of employment, particularly as he was rostered for "Response" in General Duties on that day. The Applicant had acknowledged during the investigation process that there was no issue with the legality of the order, but it was a question of 'reasonableness'. 13. The directions were reasonable as the wearing of the belt was an expected part of an officer's normal duties while rostered on general duties and particularly, response. There was nothing to suggest to the senior officers that the Applicant should not be required to wear the appointments belt. 14. Neither LSC Johanson nor Sergeant Clarke was aware of any particular 'condition' of the Applicant at the time of giving the direction as the Applicant did not say that he suffered from any issue. The Respondent submitted that it appeared the Applicant simply expected both senior officers to guess that he was suffering from the appointments belt. 15. Even during an interview on 29 May 2012, four days after the incident, in circumstances where the Applicant had the assistance of a support person of his own choosing (S/C Corrie Ward), the Applicant did not make any mention of back pain or suffering any disability as the reason for the removal of the appointments belt. 16. A critical element is that the alleged discriminators (namely LSC Johanson and Sergeant Clarke) had to know that the Applicant had a relevant disability. An employer cannot discriminate on the ground of disability if the employer did not know that the employee had a disability: Forbes v AFP [2004] FCAFC 95, Tate v Rafin [2000] FCA 1582 and Zoltaszek v Downer EDI Engineering Pty Ltd (No. 2) [2010] FMCA 938. 17. In fact, the comments made by the Applicant during the incident and in the interview on 29 May 2012 indicated strongly that he simply did not respect the authority of his superior officers who had given him the direction. 18. The Respondent submitted that the order, and the action taken under the order, were proportionate to the Applicant's misconduct, and therefore were not harsh, unjust, or unreasonable in the circumstances - circumstances which included the Applicant's prior conduct history, particularly the prior warnings in relation to a failure to attend for duty when rostered. 19. Whether the actions "are not sufficient to justify" the s 173 order is a matter that this Commission as presently constituted is to review under s 174. The Commission may take any matter it considers relevant (s 175(3)); and must have regard to the interests of the applicant and the public interest (s 175(4)). The burden of proof that the order is harsh unjust or unreasonable is borne by the Applicant (s 175(2)). 20. The public interest weighs strongly in favour of the making of the order. Moreover, the outcome of the order is, on balance, objectively in the best interests of the Applicant. 21. Failure of a police officer to attend for duty is, on any view, a serious matter. The two instances of misconduct in this matter form part of a broader pattern of failure to attend work and a lack of respect for those who have authority over him within the police force. Prior to the events leading up to the December absence, the Applicant had a history of failing to attend work without leave, in relation to which he has been informally and formally warned. 22. The Applicant also failed to seek to have his leave properly arranged so that he would be able to attend work. He applied for annual leave in the first half of December 2011, towards the end of 2010. At that stage, on his own account, he was aware that this would pose a problem due to his children visiting him in the second half of December. He took the view that "I was sure something could be worked out". However, the Applicant made no effort to 'work out' any arrangements that would enable him to attend for duty when he was required, by taking annual leave at appropriate times. 23. () It was stated In Robert Whyte v Commissioner, quoting from Commissioner of Police and Wayne Edward Collins (2008) 180 IR 191 (Full Bench); quoting Van Huissted v Commissioner of Police (2000) 98 IR 57; that the interests of an applicant include their employment, reputation and financial security. The Respondent suggested that in this case, the Applicant's interests may also include his family responsibilities. 24. () The Respondent relied on the evidence of Supt McKenna (written and oral) with respect to the Applicant's interests and how those interests were accommodated in the context of a disciplinary transfer. Indeed, the Applicant did not challenge the reasons - other than the issue of child care and Inspector Dunlop's presence at the LILAC. 25. () While the Applicant had said in these proceedings that he prefers the country to larger towns, that preference should be viewed in light of the fact that a member of the police force may be transferred at any time in the interests of the NSW Police Force (Police Act s 69). 26. () The Applicant's reputation, in not having a s 173 order and a further Warning Notice recorded against his name, is an issue that weighs against the making of the s 173 order. However the Respondent submitted that this consideration is balanced against the Applicant's misconduct and the need for that misconduct to be appropriately sanctioned. He should not be rewarded for misconduct. 27. () The Commission must take into account the seriousness of misconduct. The evidence shows a pattern of insubordination. Further, the Applicant had serious issues with respect and cooperation with a number of officers within Griffith LAC and needed a clean start. The circumstances of the present matter raise similar issues to those considered by the Commission in Probst v Commissioner of Police (No 2) [2009] NSWIRComm 201 at [413] ff. 28. () The order and the action taken under that order were proportionate to the Applicant's misconduct to the level required by the statute: that is, the order and the action were neither harsh, nor unjust, nor unreasonable in the circumstances. 29. () Point 5 of the NSW Police Force Codes of Professional Conduct and Ethics states: An employee of the NSW Police Force must comply with any lawful and reasonable direction given by someone in the NSW Police Force who has authority to give the direction. 1. () The Respondent asserted that there should be findings of misconduct, which fall into two areas. There is the failure to comply with the directions to attend for duty on the 28th to the 30th December. Then in May 2012, the failure to comply with the directions of LSC Johansen and Sergeant Clarke in relation to putting the appointments belt back on during the course of the shift.
2. The Respondent concluded that the proper outcome of this proceeding is that the decision made by Superintendent McKenna in the form of the order be affirmed.

LEGAL FRAMEWORK

1. Section 173 of the Police Act 1990 provides as follows: 173 Commissioner may take action with respect to police officer's misconduct or unsatisfactory performance (1) In this section: non-reviewable action means action referred to in Schedule 1. [Schedule 1 lists as non-reviewable action a non-disciplinary transfer]. reviewable action means action referred to in subsection (2), other than non-reviewable action. (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine…. (9) Except as provided by Division 1A: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission.
2. Sections 174(1) and s 174(4) of the Police Act provide as follows: (1) A police officer in respect of whom an order for reviewable action is made under section 173 may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the order is beyond power or is harsh, unreasonable or unjust…. (4) An application may not be made by or on behalf of a police officer more than 21 days after the date on which written notice of the making of the order to which it relates was served on the police officer.
3. Section 179(1) of the Police Act deals with the application of the Industrial Relations Act 1996 ("the IR Act"): (1) In the application of Part 5 of Chapter 4 of the Industrial Relations Act 1996 to proceedings under this Division, the provisions of sections 163 (Rules of evidence), 167 (Intervention by Minister, ADB and State Peak Councils), 169 (4) (anti-discrimination matters), 172 (Power to order secret ballot), 181 (costs) and 184 (Power of entry of members of Commission and other authorised officers) of that Act do not have effect.
4. The NSW Police Code of Conduct and Ethics relevantly provides that: An employee of NSW Police must: 3. know and comply with all policies, procedures and guidelines that relate to their duties 5. comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction. 10. report the misconduct of other NSW Police employees. Failure to comply with the Code of Conduct and Ethics may result in management action.

CONSIDERATION

1. Senior Constable Wright's disciplinary transfer is a 'reviewable action' and no jurisdictional issue arises.
2. Section 174 of the Police Act 1990 permits an application to be lodged with this Commission by a police officer for review of an order of reviewable action on the grounds that the order is beyond power and/or is harsh, unreasonable or unjust.
3. As Sams DP observed in Probst v Commissioner of Police (No 2) [2009] NSWIRComm 201 (at 11): It is now well accepted that the correct approach to be adopted by the Commission, in a s 174 review case, is that identified in Hosemans v Commissioner of Police (2004) 138 IR 159, where the Full Bench, albeit in a s 181D case, said at par 134: "The correct approach is that the Commission is to make a fresh and independent review decision itself, based on the material before the Commissioner as well as any new evidence admitted."

General findings as to the allegations

1. The applicant has never claimed that the alleged orders against him are untrue but, rather, that he had good and cogent reasons for refusing to follow such orders. In the case of P1200156 (the Griffith issue), his refusal to attend for duty in December 2011 in accordance with his roster, he claimed the need to care for his two children as the reason. He claimed to have been in pain as the reason for his refusal to replace his Appointments in regard to P1202297.

The Griffith issue - (P1200156)

1. The applicant nominated the following periods of leave: 1. 10-17 April 2011 (the first week of the school holidays and the week preceding the Easter leave embargo); 2. 10-15 October 2011; and 3. 4-24 December 2011 (Annual Leave)
2. The Applicant was cross-examined on that event by Ms Eastman on behalf of the Respondent: Q. Do you remember nominating the dates 4 to 24 December 2011? A. Yes. Q. And you didn't consult with your ex-wife about those particular dates prior to making that nomination in the September October 2010 did you? A. No. Q. And is it the case that as at November 2010 it was your understanding that the period 4 to 24 December 2011 would be consistent with the first part of the school holidays? A. That - it included part - yes the first holidays. However, I don't exactly recall in that year which day the school holidays immediately commenced, because the children still in school up until a few days before Christmas Q. And in terms of nominating that particular period of time did you check the parenting arrangement that you had, the written parenting arrangement that you had with your ex-wife before nominating those dates? A. No because I was aware of it Q. You were aware of it? A. What our agreement was, yes. Q. I think you've got a copy of that in your statements? There's some numbered tabs, I don't know whether your copies are numbered, Senior Constable Wright, but tab-- A. TW13. Q. But 13 that's a copy of an agreement that you reached with your ex-wife sometime around the latter part of 2009 through to about, it seems on her signature 12 March 2010? A. Yes. Q. And this agreement was to set out your mutual understanding about arrangements in relation to the care and custody of your two children, do you agree with that? A. Yes. In general terms, yes. Q. Well this is intended to be binding on both of you wasn't it? A. Not binding at law, because there was an agreement between us it wasn't required to be a court order as such. Q. But it was intended that you and your ex-wife would have some certainty about what those arrangements would be? A. Yes. Q. If we look at the school holiday period for December and January the agreement makes provision for the following, in paragraph 4 you will see in subparagraph (c) that in 2010 and each alternate year thereafter from 3pm Christmas Eve to 3pm Christmas Day, do you see that? A. Yes. Q. And then if we say that's the even years, for the odd years in paragraph 4 in 2009 and each alternate year thereafter from 3pm Christmas Day and thereafter for three weeks of the school holidays, do you see that? A. Yes. Q. And if you say that that's the odd years that would mean that in 2011 this agreement provided that you would have the children from 3pm on Christmas Day and the following three weeks? A. Yes. Q. Did you read this agreement at all when you came to nominate what period of leave that you wanted to take when you were looking at dates back in November 2010? A. No I didn't read the parenting agreement, because I was aware of it. Q. And would you agree with me that by nominating the period 4 to 24 December 2011 that that's entirely inconsistent with clause 4D of your parenting agreement? A. Yes, there was a reason why I - the reason why I nominated the 4th to the 24th was because Sergeant Jed Ryan wanted from Christmas Day onwards. Q. I didn't ask you that I just ask you-- A. Well that's my answer. Q. No I didn't ask you why? I just asked this question, do you agree that the dates you nominated were inconsistent with your parenting agreement? A. Yes. Q. And you didn't tell your ex-wife at the time you nominated those dates that you had nominated for dates that would reflect the even year rather than perhaps the odd year? A. No because this was in September in or around September October 2010 in relation to Christmas or 2011 over 12 months away. Transcript 22 July 2014 Pages 19 to 21)
3. On 19 August the applicant applied to alter his 2011 annul leave dates on the ground of his childcare responsibilities and was advised by Sergeant Ryan, the Sergeant in charge of Hillston police station on 16 September that his application had been refused.
4. It is a matter of record that the Respondent did not grant leave to the Applicant for the days following Christmas Day 2011 because of operational reasons and considerations of fairness to the other two police officers at Hillston.
5. On 6 December 2011, Commander Fuller issued a written direction to the Applicant which stated:
6. You are rostered to work on the following dates and you are required to attend for duties on these dates:
7. 26th, 27th, 28th, 31st December 2011 and 1st, 4th, 5th, 6th, 12th, 13th, 14th and 15th January 2012
8. The Applicant had been on sick leave intermittently over September to the end of November and his doctor (Dr Mahmoodi) issued a medical certificate dated 12 December 2011 stating that the applicant was fit for suitable duties of three shifts per week each of six hours duration. The medical certificate was unclear as to the type of restricted duties that SC Wright could perform.
9. Superintendent Rowan, having received the medical certificate which stated that the Applicant was fit for suitable duties, would have been acting lawfully in determining what 'suitable duties' meant himself and could have ordered the Applicant to attend work on that basis.
10. Superintendent Rowan advised the applicant by telephone on 23 December 2011 in words to the following effect :- Grant, we have made enquiries with Dr Mahmoodi to clarify the types of restricted duties you can perform. Dr Mahmoodi says you can work, but for restricted periods of time. Since that means you won't be able to work in Hillston, you must attend Griffith police station to perform duties in the Crime management Unit for six hours per day on 28, 29 and 30 December 2011. These are all non-public holiday weekdays, and 28 December 2011 is one of those days on which you were previously rostered and directed to perform duty. You will also be required to perform suitable duties at Griffith in the coming weeks.
11. As the roster which Assistant Commissioner Fuller had On 6 December 2011 directed the applicant to work to had been based on the assumption that he would be fit for the full range of duties at Hillston police station, a new roster was developed for SC Wright to perform day work duties in accordance with his doctor's assessment at Griffith station as there were no suitable duties available at Hillston.
12. I reject the Applicant's claim that the Superintendent had no authority to approach his doctor. Regardless of which senior officer actually made the contact with the doctor, I regard the Respondent's actions in seeking to clarify the type of restricted duties that the applicant could perform as prudent and responsible.
13. I find that the order by Superintendent Rowan to the Applicant to work six hours per day at Griffith police station on 28, 29 and 30 December 2011 was in accord with the doctor's recommendations and was a fair and reasonable instruction.
14. Regulation 8(2) of the Police Act provides, "In particular, a police officer is required: (a) to serve wherever the officer is duly directed, and (b) to perform such police duty as may be duly directed, whether or not during the officer's rostered hours of duty."
15. It is a matter of record that the Applicant refused to attend for work on the days he had been rostered over as he had so clearly been instructed, and it is also a matter of record that he did not attend for duty as directed.
16. In Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16, the ADT rejected SC Wright's claim of indirect discrimination over having been rostered to work 28 December 2011 to 30 December 2011, and the disciplinary transfer that followed his refusal to attend work as directed. The Tribunal made the following observation: The Applicant was not granted leave in relation to various periods because of a combination of factors. The Respondent did not grant him leave for those days because of operational reasons and considerations of fairness to the other two police officers at Hillston. The Applicant was not able to attend work on those days both because of those refusals and, in some cases, because of his poor planning, lack of alternative child care and a belief that he was "entitled" to spend time with his children. (at para 73) Neither the parenting agreement nor the level of the Applicant's entitlement to paid leave meant that he was "unable to comply" with the requirements to attend work as rostered. Even if the non-compliance element of indirect discrimination needs to be assessed at a more detailed level in this case, we are not satisfied that the Applicant was "unable to comply". To a significant degree, the Applicant's non-compliance was as a result of his own poor planning and communication as well as his unwillingness to comply. (at 74)
17. I agree with that those observations which, while made in regard to claims of indirect discrimination, I find also applicable to this review.

The Appointments Belt issue - (P1202297)

1. There was some discrepancy in the evidence of LSC Johanson in the amount of time referred to in SC Wright's offer to have his pay docked because he was leaving work early. I do not regard that to be of significance and does not undermine the thrust of the LSC Johanson's testimony that he gave a lawful order to the applicant which was not obeyed.
2. I am satisfied that the direction given by LSC Johanson and Sergeant Clarke to the applicant to replace his belt and appointments were directions that the applicant was required to obey and were both clear and lawful.
3. Under cross examination the applicant agreed that he had not complained of a disability or discomfort to LSC Johanson or of any stress, soreness, tiredness or disability to Sergeant Clarke at the time they issued their directions to him and therefore the instructions were not unreasonable. . (Transcript of 22 July 2014 Pages 33 and 34)
4. Further, I accept the Respondent's submission that four days after the incident, during an interview on 29 May 2012, when the Applicant had a support person of his own choosing (Senior Constable Corrie Ward), the Applicant made no mention of back pain or any disability as the reason for the removal of the appointments belt.
5. The applicant cannot escape from the fact and did not deny that on two separate occasions he failed to comply with the directions of a superior officer: LSC Johanson and Sergeant Clarke on 24 May 2012. On that basis it seems to me to be irrelevant that on other occasions and in other circumstances other officers may have removed their appointments belt without being ordered to put it back on.
6. The requirements of clause 5 of the NSW Police Code Of Conduct And Ethics are to comply with any lawful and reasonable direction given by someone in NSW Police who has authority to give the direction.

Allegations of procedural unfairness - 'beyond power'

1. The Police Act 1990 provides: 175 Proceedings on a review (2) The applicant has at all times the burden of establishing that the order to which the application relates is beyond power or is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary.
2. After he became aware that the applicant had filed complaints with the Anti-Discrimination Board relating to himself personally, as well as to actions said to have been taken by other members of Griffith LAC, Superintendent Rowan prudently decided that any investigation into the applicant's conduct should be conducted by an officer based outside the Griffith LAC.
3. Due process was followed in relation to the action under section 173 of the Police Act 1990 as the applicant's refusal to attend for work and to restore his appointments belt went before the Internal Review Panel (IRP) on 6 July 2012 in line with the Police Commissioner's instruction 12/01 which required all such type of conduct to follow that procedure.
4. Superintendent McKenna holds certain delegations of authority, including a delegation from the Commissioner of Police authorising him to exercise the powers and duties of the Commissioner under section 173 of the Police Act 1990.
5. As a result of the IRP discussions, Superintendent McKenna took the role as delegate for the Commissioner of Police and proceeded to consider from the reports produced by Detective Inspector Blanchard whether or not reviewable action might be appropriate in respect of the applicant's two matters.
6. The Applicant provided no evidence to support his claim that Assistant Commissioner Fuller and Inspectors Blanchard and Dunlop each had a conflict of interest in regard to the order now under review.
7. His claim that the investigation by Inspector Blanchard was deficient was not supported by any evidence other than the Applicant had submitted that it had gathered no evidence from various people who may or may not be able to provide relevant evidence.
8. In regard to the appointments belt issue, there was no evidence that inspector Dunlop had a conflict of interest or was biased against the applicant. However, I do not regard the charge against the Applicant to be of such seriousness as to require the appointment of an officer from outside the Griffith area to investigate that issue.
9. Apart from the complete lack of any evidence of bias or conflict of interest, Inspector Dunlop's investigation was but one step in a process which also involved other officers senior to him.
10. I find no evidence to sustain the claim that the order under review is "beyond power".

Balancing the applicant's interests against the public interest

1. The Applicant refused to attend work in accord with his roster and in line with clear instructions from senior officers. He also did not attend work as directed.
2. I do not consider the punishment of a disciplinary transfer to be too harsh given the seriousness of the applicant's misconduct and his failure to accept any responsibility for his actions.
3. In my view, the Applicant has displayed an unreasonable, and at times an irrational, view of many of the senior management of the police force in his area. From his evidence it seemed that he imagined or unfairly alleged bias or conflict of interest against anyone in authority who was not supportive of him or who had a reasonable basis to be critical of him.
4. In seeking to balance the applicant's interests against the public interest, as required by s 175(4) of the Police Act, it is clear that the applicant's interests in this matter are relatively narrow as he will not lose any rank or salary by the transfer. Whilst he does share custody of two young children with his ex-wife, he does not have to physically uproot his family.
5. The Applicant is clearly guilty of the misconduct of which he is charged, and it would be quite out of the question to conclude other than the public interest far outweighs the applicant's interests in determining this matter.
6. I find that the order is appropriate and proportionate with the nature of the breach and the specific circumstances as set down by the Management Action requirements in the Police Standards of Professional Conduct.

CONCLUSIONS AND FINDINGS

1. In respect to these review proceedings under s 174 of the Act, the Industrial Relations Commission finds that: 1. The applicant's conduct breached the New South Wales Police Force's Code of Conduct and Ethics and the New South Wales Police Standards of Professional Conduct. 2. At all relevant times, the applicant was aware of the allegations against him and was given every opportunity to defend himself against the allegations. 3. There were no issues of procedural unfairness of such significance as to outweigh the seriousness of the applicant's misconduct. 4. The public interest outweighs the applicant's interests in this matter. 5. The section 173 order made by Superintendent Adrian McKenna on 7 November 2012, was not 'beyond power' and was neither 'harsh, unreasonable nor unjust' within the meaning of section 174 of the Act. ORDERS
2. This application for review under s 174 of the Act is dismissed, pursuant to s 177(1)(d) of the Act. I Tabbaa AM
3. COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2015