Robbs v Commissioner of Police

Background

1. The applicant is 54 years of age. He was attested a Constable of police on or about 26 April 1991 and has been a serving police officer for over 29 years. Prior to joining the NSW Police Force, the applicant worked as an ambulance officer with the NSW Ambulance Service.
2. In 1996 the applicant was promoted to the rank of Senior Constable. In 1999 he was promoted to the rank of Sergeant and transferred to Moree in the Barwon Local Area Command. In 2007 the applicant transferred to the position of Shift Coordinator at the Newcastle ROC and in 2009 he took on the title of Team Leader. Since 2013 the applicant has acted in the role of Senior Sergeant/Centre Coordinator and Inspector/Centre Commander.
3. During his career in the NSW Police Force, the applicant has received many letters of appreciation, medals, commendations and other awards for the work he has performed. He has never before been the subject of any allegations of the nature particularised in the Order.
4. In his Response to the Notice the applicant stated, "…I do not wish to cause any additional distress to the complainants and I do not wish to dispute the allegations which have been made against me".
5. Acting Assistant Commissioner Whyte recorded in the Order the applicant's responses to the various "Incidents" in the following terms: Your response to allegations made by Ms Parciany …………………………. You described having a good working relationship with Ms Parciany. You acknowledge that you, as acting Centre Coordinator, are Ms Parciany's first line supervisor. You state you had worked closely together for a period of 18 months, and you were completely unaware Ms Parciany had any issues with you or the nature of your conversations. You describe personal jokes you appeared to have with Ms Parciany. …………………………. In relation to Incident 2, you indicated that you did not recall that particular incident. When asked whether the incident did not occur, or whether you were advising it was that you just could not recall the incident, you advised that you 'can't recall the incident'. In relation to Incident 3, you indicated that you may have made those comments 'in the context of a broader conversation'. You state that you would regularly discuss fashion and clothing, and had a 'friendly jovial relationship'. In relation to Incident 4, you again acknowledge you may have made the comment, although you cannot recall it specifically. You state you used the term 'vulva' as it 'is more of a medical term', that 'doesn't have the connotation of other words'. You state it may be appropriate to discuss that part of a female colleague's anatomy, depending on the context. In relation to Incident 5, you indicated that you did recall making that or similar comments. You state you do not recall mentioning a padded bra, but instead recall saying, 'that accentuates your bust' or something similar. You state that you did not consider it inappropriate due to the nature of your relationship. You state that, had she taken offence to your comment, you 'would have apologised and taken that into consideration in relation to any future conversations'. You purport that the appropriateness of this kind of comment will depend on the relationship between the parties. In relation to Incident 6, you admit to making the comment, but purport that when you used the term 'rogering', you meant 'a rigorous physical training session'. You refer to it as a 'satirical comment', and deny you were inferring 'anything inappropriate'. You acknowledge that, 'depending on the context' it could also be perceived as a sexual comment. While you also purported that Ms Parciany had told you that on an occasion she had 'motorboated' or 'powerboated' her sister's breasts, you state that you 'don't recall any [conversation with Ms Parciany] being of an overt sexual nature'. You state that you have no issue with workplace conversations of this nature. ………………………… Your response to allegations raised by Ms Mitchell In your directed interview with Chief Inspector Scott on 24 October 2018, you describe your working relationship with Ms Mitchell as good, and state you have 'never had any issues with her'. You state you are friends with both her and her husband and had previously attended their home on a number of occasions. You state that you no longer socially interact with Ms Mitchell. During the interview, you indicated that it was possible that you made the comment alleged at Incident 7, 'in the context of the friendship and mutual conversations [you] had'. You state that Ms Mitchell would often ask you how she looks, including questions 'about how does a particular part of her body look in the outfit' she was wearing at the time. You acknowledge that it is generally not appropriate to make comments of this nature in the workplace, but in the context of your friendship it may have been appropriate. You state that if she had raised any issues with you, you would have apologised and refrained from making similar comments in the future. You acknowledge that this would generally not be an appropriate conversation to have in the workplace. In relation to Incident 8, you vaguely remembered the incident but do not specifically recall making the alleged comment. You indicated that you would have made the comment to make Ms Mitchell feel better. You state that you would have been the most appropriate person to assist Ms Mitchell in the circumstances, given your prior experience as an ambulance officer and first aid qualifications. In relation to Incident 9, you indicated that you may have made a comment similar to what was alleged, being that Ms Mitchell's 'tits look huge'. You state you had previously had personal conversations with Ms Mitchell about her body parts, and note that she had told you she contemplated plastic surgery in the past. You describe it as 'a personal comment and not out of context in relation to [your] friendship'. You state you do not recall telling Ms Mitchell, 'I like small boobs, it's okay, it's okay to embrace'. You purport that you would have conversations such as this with Ms Mitchell 'at appropriate times', including out of work and during private conversations at work. You allege that Ms Mitchell was a willing participant to these conversations. You state you do not recall Ms Mitchell telling you, 'I'm sorry I didn't realise that my dress is on the agenda for discussion'. You state that you do recall giving Ms Mitchell post-it notes containing writing about her appearance. You state that you recall doing this on one occasion and that 'there must have been some trigger for [you] to do it'. You express that you were shocked that she felt uncomfortable at any point. You purport that, as an 'aggrieved person', she should have made it clear to you that the nature of your conversations were inappropriate.
6. After recording his findings which are set out at [4] above, Acting Assistant Commissioner Whyte then stated: Consideration In the circumstances, I am satisfied that your conduct has fallen below that which is expected by the community and the NSW Police Force of a sworn officer. I expect the highest standards of behaviour from all sworn officers of the NSW Police Force and for all NSW Police Force employees to uphold the law. It appears that you have failed in that regard. I am satisfied that you engaged in inappropriate, unprofessional and disrespectful behaviour towards both Ms Parciany and Ms Mitchell and that this constituted a pattern of sexually harassing behaviour. In relation to Allegation 1 and your conduct towards Ms Parciany, I have taken into account your concessions in the directed interview and your response to the Investigator's Report. I note that you explain your conduct by stating that some of the comments you made to Ms Parciany occurred in the context of a 'friendly jovial relationship' or were appropriate given the nature of that relationship. I am satisfied that, even on your own version of events, your conduct was inappropriate and went beyond jovial conversation or 'workplace banter' and would have objectively offended or humiliated Ms Parciany. In relation to Allegation 2 and your conduct towards Ms Mitchell, I have taken into account your concessions in the directed interview and your response to the Investigator's Report regarding your behaviour. Again, I have also taken into account that you again purport that the comments were made in the context of a friendship and that Ms Mitchell was a willing participant to the discussions concerning her body parts. I am satisfied that your conduct, even on your own version of events, indicates a pattern of behaviour which went beyond jovial conversation or 'workplace banter' and would have objectively offended or humiliated Ms Mitchell. I have also noted your comments that neither Ms Parciany nor Ms Mitchell gave you any indication that they found your behaviour towards them offensive or inappropriate or asked you to stop. It should not have been necessary for Ms Parciany or Ms Mitchell to expressly tell you they were offended by your inappropriate behaviour, in order for you to refrain from that behaviour. It causes me concern that you were not more self-aware, given your experience and seniority. It appears you failed to appreciate or acted with disregard for the fact that you were acting in a manner unbecoming of a sworn officer of the NSW Police Force. It appears you have failed to demonstrate insight and good judgement in this regard. A Sergeant of Police is a senior position and is expected to act as a role model and lead by example. I expect that you would understand and appreciate the importance of complying with relevant policies, procedures and the law in respect of your interactions with those around you within the workplace. In fact, it is critical and in the public interest for police officers to comply with the law and not engage in behaviour that constitutes sexual harassment or that creates a hostile or unsafe working environment. It is clear that you have failed in this regard. It further concerns me that your misconduct occurred in relation to Ms Parciany and Ms Mitchell, who were more junior co-workers. In your Response, you acknowledge that your misconduct towards Ms Parciany occurred at a time that you were performing duties as co­ordinator and she reported to you. Regardless of whether you were performing higher duties at the time of your admitted misconduct towards Ms Mitchell, your seniority meant there you were supervising both Ms Parciany and Ms Mitchell at the time of your misconduct, and there was an imbalance of power between you. I consider that this aggravates your misconduct. I have taken into account the comments made by you in the Response that your conduct did not create a hostile or unsafe working environment. I do not view it as a defence to your conduct that the 'overwhelming majority' took no issue. This comment causes me concern as it is further demonstrative that you have a lack of insight into the seriousness of your conduct and the impact that it may have had, not only on Ms Parciany and Ms Mitchell, but also on others in the workplace. I have taken into account your 'clean' disciplinary record across your 28 years of service with the NSW Police Force and the fact that you say the disciplinary action proposed would have a severe financial impact on you, including your retirement savings. Finally, I have also had regard to the remorse and contrition you have shown throughout the investigative process, your acknowledgement that your conduct amounted to sexual harassment and the assurances you have given that you will not engage in similar conduct again. Notwithstanding this, I consider your misconduct serious and deserving of disciplinary action. It goes to the very heart of your personal judgement and integrity. As outlined above, I am of the view that our conduct demonstrates that you lack the insight required of a Sergeant with supervisory responsibilities, and who is trusted to act as a role model to others. I note that you acknowledge in your Response that a disciplinary transfer out of ROC would be warranted in consequence of your actions. After consideration of your Response and the evidence available, I have formed the view that it would be untenable for you to remain in the workplace in which you have engaged in the admitted conduct, and where targets of your conduct continue to be employed. I am hopeful that a disciplinary transfer and new working environment will allow you to correct and improve your behaviour in the future. Order In all the circumstances, I have formed the view that your conduct has been shown to be improper and that you should be subject to the action proposed in the Notice. I therefore order the following action under s 173(2) of the Police Act 1990 that: • your rank be reduced to Senior Constable Level 6; and • you be subject to a disciplinary transfer to Brisbane Waters Police District. You have the right to seek a review of this Order by the Industrial Relations Commission on the grounds that the Order is beyond power, or is harsh, unreasonable or unjust. You have twenty-one (21) days to lodge your application for review from the date of service of this Order. There is also provision for administrative review by the Supreme Court. You may seek independent legal advice in relation to your rights and obligations. This Order takes effect twenty-one (21) days from the date of service upon you of this Order or, where an application for review is filed, when the application is finally determined.

Case for the applicant

1. In his first affidavit filed in these proceedings, the applicant set out his work history both before and after joining the NSW Police Force. He also detailed his involvement in a number of community organisations and listed the many letters of appreciation and other commendations he had received during his career as a serving police officer.
2. After setting out the financial impact that the reduction in rank will have on him, the applicant stated: 36. I am agreeable to a disciplinary transfer to the Brisbane Waters Police District if the reduction to my Sergeant incremental level is that of a reasonable reduction having regard to my conduct and the admissions that I have made to save the complainants from any additional distress in having to endure giving evidence at a hearing at the IRC.
3. The applicant then detailed his responsibilities as the primary carer and support person for his 92 year old mother.
4. The applicant concluded by stating: 42. I acknowledge my inappropriate behaviour and understand the severity of the situation. I can confirm that this contrary conduct will not arise again and that my behaviour will be adjusted accordingly.

Case for the respondent

1. The respondent relied upon a witness statement of Assistant Commissioner Whyte. In that statement Assistant Commissioner Whyte confirmed the views that he expressed in the Order (at [14] above) and maintained that there was a sound basis for making the Order and that he stood by the Order.
2. In addition, Assistant Commissioner Whyte stated: 42. At paragraph 36 of his statement Sergeant Robbs says that he is agreeable to a disciplinary transfer to the Brisbane Waters Police District if the reduction to his Sergeant incremental level is reasonable "having regard to my conduct and the admissions that I have made to save the complainants from any additional distress in having to endure giving evidence at a hearing at the IRC". I am concerned by the implication in this statement that the admissions made by Sergeant Robbs in some way negates the severity of his misconduct. I do not consider that any requirement of the complainants to give evidence is a relevant factor to be considered in determining the reduction of Sergeant Robbs' rank. I maintain that reduction of Sergeant Robbs' rank is an appropriate disciplinary outcome having regard to his conduct and expectations of a Sergeant.

Applicant's written submissions

1. At the conclusion of the oral evidence of Assistant Commissioner Whyte on 5 August 2020, counsel for the applicant handed up to the Commission written submissions in which she set out the background to the matters which led to these proceedings. The applicant's case was put in the following terms: 17. The Applicant submits that the order is unreasonable and/or harsh because: a. The Applicant has demonstrated insight in his conduct and shown sincere remorse b. The misconduct falls at the bottom of the seriousness for that type of conduct c. The seniority and flawless career of the Applicant d. The unlikelihood of the behaviour reoccurring e. The hardship the order would cause to the Applicant and his family
2. The submissions then expanded upon each of these aspects of the applicant's case.
3. Reliance was placed on a number of previous decisions of this Commission to support the submission that the applicant had been treated harshly in comparison with other police officers who had been subjected to disciplinary action: 44. The fact that the Applicant disputed neither the allegations nor the fact that they amounted to breaches of the NSWPF Policies and Procedures should be taken into consideration. 45. By comparison in Flynn v Commissioner of Police [2019] NSWIRComm 1030, the applicant admitted to the conduct but disputed that it was misconduct for the purpose of s 173 of the Act. There were numerous allegations (11) such as failure to investigate, to create COPS event, to issue subpoena, to attend incident and provided false information. Unlike the Applicant in the present case, the applicant in Flynn displayed a lack of insight. The Commission doubted the honesty and frankness of the applicant and noted that the applicant had a substantial history of poor performance and misconduct. The Commission refused to revoke the order and confirmed the relocation of the applicant from Hume Local Area Command to Wollongong LAC and the reduction in rank from Senior Constable Level 5 to Constable Level 5. 46. In Duncan v Commissioner of Police [2020] NSWIRComm 1011, the Applicant had a 30-year career in the Police Force. He was 50-year old, lived by himself and jointly supported his two children. He was a Detective Chief Inspector at the time of the order. Contrary to the present case, disciplinary actions had been taken against the officer in the past. The officer's increment was reduced from Inspector Level 8 to Inspector Level 6 and moved from the PSC to the Eastern Suburbs PAC for misconduct in exceeding his role as a support person and issues of conflict of interests (interference in an investigation). The Commission did not revoke the orders. 47. In Parfrey v Commissioner of Police [2010] NSWIRComm 19, a case of sexual harassment (including offers for sex) and inappropriate/unprofessional comments, the officer - a Probationary Constable -never admitted to the conduct which was objectively much more serious than the present case. The order for her dismissal was upheld. 48. In Cassel v Commissioner of Police [2003] NSWIRComm 73, another case of sexual harassment (and a failure to report a car accident he was involved in and negligent driving), the officer had a 5-year career in the Police Force. The Commission assessed the officer's behaviour in context. His transfer was confirmed but his removal was revoked and the officer was reinstated without any loss of seniority. 49. In Sewell v Commissioner of Police [2008] NSWIRcomm 93, the allegations related to sexual harassment including several instances of indecent assault (squeezing buttocks...). The officer had a 20-year career. The Commission found that it was an aberrant behaviour over a short period and took into consideration the officer's personal circumstances. The Commission revoked the order of removal and reinstated the officer in his rank as Sergeant. His transfer was confirmed. 50. In A (a pseudonym) v Commissioner of Police [2019] NSWIRComm 1091, the Applicant was subject to a disciplinary transfer for conducting inappropriate and unauthorised enquiries into confidential information, failing to identity a conflict of interests and failing to abide by the Policies of NSWPF with regard to declarable associations. She made limited admissions. The order was found to be harsh because the travel resulting from her transfer would have caused the Applicant difficulties and have an impact on her family. The order was therefore revoked. 51. In Shelley Jackson v Commissioner of Police [2019] NSWIRComm 1033, an order was made for the officer's rank to be reduced from Sergeant to that of a Senior Constable Level 6. The officer had been a Police Officer for 15 years and a Sergeant for 7 years. Numerous complaints were made against her including failure to investigate, failure to attend, non-recording of exhibits, offensive and derogatory remarks on social platform about colleague. The order was found to be harsh and revoked. The Commission found that despite "presenting as someone far from contrite or remorseful [...] a demotion to Senior Constable would have significant effects on her standing and reputation in the NSWPF and she would also suffer a reduction in earnings," 52. The Commission found that "an indefinite reduction in rank would be disproportionate to the misconduct." 53. lt is submitted that the Applicant's behaviour, although not trivial and inconsequential, is totally out of character, unlikely to be repeated and occurred for a brief period in a long and unblemished police career. In this context, it is submitted that the Applicant should be given a second chance. 54. As Haylen J stated in Raymond Sewell v New South Wales Police Force [2008] NSWIRComm 93 at [131]: "The Codes of Police conduct ( ...) should not be treated as a monolith but should be viewed as blueprints with layers indicating what should be the behaviour of police officers. Those layers should also acknowledge a role for flexibility, compassion and fairness in dealing with the variety of human behaviour that will be called for review."
4. The applicant's submissions concluded as follows: Conclusion 55. The Applicant ultimately submits that he has discharged his onus of establishing that the Order is unreasonable and/or harsh. 56. As a result, the Applicant asks that the Commission pursuant to s 177(1)(b) of the Act to make the following orders: a. To revoke the Order made by the Commissioner of Police on 4 September 2019 that the Applicant be reduced from his current rank to that of Senior Constable Level 6; and to revoke the order that the Applicant be subject to a disciplinary transfer to Brisbane Waters Police District. b. ln lieu, the Applicant be reduced in rank from Sergeant Level 9 to that of Sergeant Level 8 and be subject to a disciplinary transfer within a commutable distance of less than 60 minutes from his current address.

Respondent's written submissions

1. In written submissions filed by the respondent on 13 August 2020 the following was stated: Introduction 1. The Respondent relies upon its oral closing submissions made on 5 August 2020. In these written submissions, the Respondent addresses: a. a number of matters arising from the Applicant's written outline of submissions (AS) adduced at the hearing on 5 August 2020; and b. by way of clarification, a number of points that arose during the closing submissions of the Respondent. 2. The Applicant did not dispute the findings made against him, admitted to engaging in sexual harassment and accepts that this constituted misconduct. 3. On 5 August 2020, the Respondent submitted broadly that: a. it was incumbent on the Applicant - as he has the onus - to establish that the removal order was harsh, unjust or unreasonable (It is trite, but see Flynn v Commissioner of Police [2019] NSWIRComm 1030 at [12] - [13].). b. whilst the test of whether the removal order is harsh, unjust or unreasonable is essentially the same as under the unfair dismissal regime under the Industrial Relations Act 1996 (NSW), it is not identical (Tredinnick v Commissioner of Police [2016] NSWIRComm 1026 at [21]). c. the obligation of the Respondent in the review proceedings is to answer the Applicant's case (Flynn at [14]). d. the case advanced by the Applicant in his Application and affidavit evidence… was essentially one of hardship that he would suffer if the removal order (Proposed Order) were to be upheld due to the: i. financial detriment to him; and ii. impact on the Applicant's caring responsibilities. e. the Applicant failed to discharge his onus: i. because in light of his admitted conduct, it could not be said that the Proposed Order was unreasonable or unjust. The Respondent advanced that on the basis on how those terms have come to be understood from Byrne v Australian Airlines (1985) 185 CLR 410 at 422; ii. by not providing any evidence of the financial detriment the Proposed Order would have on his personal financial circumstances; and iii. by conceding that the disciplinary transfer proposed in the Proposed Order would not impact the Applicant's caring responsibilities. f. the seriousness of the Applicant's admitted misconduct required a "substantial sanction": Flynn at [228] (per Constant C). The Proposed Order was, and was not more than, such a substantial sanction.
2. The respondent then addressed each of the matters at paragraph 17 of the applicant's written submissions (at [21] above) and continued as follows (footnotes omitted): Other matters relied upon 12. By way of confirmation, the Respondent confirms the following submissions made on the Applicant's case: a. in relation to the insight the Applicant says he has demonstrated and remorse he has shown, the submission needs to be seen in light of: i. the evidence of AC Whyte that the Applicant's remorse and contrition was taken into account when the Proposed Order was made; and ii. the Applicant's Response dated 4 July 2019 to the notice served under section 173(5) of the Police Act that his conduct did not create a hostile or unsafe working environment and that the 'overwhelming majority' of the Newcastle Radio Operations Centre staff took no issue with his behaviour. AC Whyte considered this comment demonstrated a lack of insight into the seriousness of his conduct and the impact it may have had, not only on the complainants, but also others in the workplace. AC Whyte confirmed this view during cross­examination at the hearing. b. in response to the submission that it is unlikely the behaviour would reoccur, AC Whyte in his statement of 17 February 2020 provided evidence that this consideration was taken into account when making the Proposed Order.
3. The remaining matters in the respondent's written submissions are dealt with later in these reasons for decision.

The applicant's written submissions in reply

1. Reply submissions filed by the applicant on 17 August 2020 dealt with the question of onus of proof and the financial consequences of the Order for the applicant and the unfitness, as asserted by the respondent, of the applicant to perform supervisory duties. It had emerged in the applicant's oral evidence that he had recently been assigned to the NSW/Victorian border where he performed duties in the capacity of a Sergeant of police.
2. The reply submissions then dealt with the submission that was put by the respondent to the effect that the alternative order proposed at paragraph 56(b) of the applicant's written submissions (at [24] above) could not be made because the respondent is not able to create positions in the NSW Police Force where they do not exist and there was no evidence before the Commission regarding the availability of Sergeant positions within a commutable distance less than 60 minutes from the applicant's residence. I deal with this issue later in the reasons for decision.
3. The issue of the degree of seriousness of the applicant's admitted misconduct and the proportionality of the sanction imposed was again canvassed. The reply submissions then concluded as follows: Powers of the Commission 37. It is submitted that the onus on the Applicant is to demonstrate on the balance of probabilities that the Order is harsh and/or unreasonable but not to establish that any alternative Order that the Commission may be making is "able to be made." There is no basis for the Respondent to make this submission. 38. The Applicant submits that he has discharged his onus to prove on the balance of probabilities that the Order of demoting him from Sergeant Level 9 to Senior Constable Level 6 is harsh and/or unreasonable. 39. The Commission's powers are stated at s 177(1) Police Act 1996 (NSW), including the power to revoke the order and to make any such order as it considers appropriate whether or not it is an order that the Commissioner is empowered to make under s 173. 40. The Commission has the power to revoke the Order and make an order that the Applicant be placed in a Sergeant position at a reduced level within the Brisbane Waters District or elsewhere within a 60-minute commutable distance of his residence.

Determination

1. One of the hotly contested issues in these proceedings was the degree of seriousness of the applicant's admitted misconduct and the related issue of the proportionality of the disciplinary action taken against the applicant. The competing submissions on these issues are set out below.
2. In the applicant's written submissions, the following was stated: Misconduct at the lower end of the objective seriousness 27. It is submitted that within the wide range of behaviours amounting to sexual harassment, the Applicant's statements were at the lower end of objective seriousness. There was no proposals of sexual intimacy, nor personal invitations or specific questions about the complainants' sex life but rather banter and comments with sexual innuendo. 28. ln addition, unlike other cases, the Applicant did not intend to sexually harass the complainants. Whilst it is accepted that the conduct does not have to be intended to be "unlawful sexual harassment", it is submitted that this is a fact relevant to the moral culpability of the Applicant. ………………………….. 30. In addition, the Commission will have regard to the context in which the statements were made. Whilst it will never be an excuse or justification to such comments, it is submitted that the nature of the relationship which existed between the Applicant and the Complainants blurred the lines. …………………………. 32. The Commission will note that the Applicant took responsibility for allowing the working relationship between himself and each of the complainants to "go beyond a strictly professional one of worker and supervisor."
3. The respondent dealt with this issue as follows: Conduct is at the lower end of seriousness 6. The submission that the misconduct falls at the "lower end of objective seriousness" should be rejected. There is no "scale" of objective seriousness to admitted sexual harassment. The Respondent submits that conduct is either objectively serious or it is not, and the Respondent maintains the Applicant's admitted conduct is objectively serious because: a. it is not in dispute that the Applicant's conduct amounted to misconduct in breach of the Police Act, Code of Conduct and Ethics and the NSW Police Force's policies on appropriate workplace behaviour. b. the Applicant received training on Respectful and Inclusive Workplaces, the Code of Conduct and Ethics, and Respectful Workplace Behaviour throughout his career, including in the timeframe that the misconduct occurred. c. the Applicant's misconduct was not an isolated incident. It constituted a pattern of sexually harassing behaviour that was directed towards two junior female colleagues over a four-year period. d. the Applicant gave evidence that his conduct was wilful, in that he intended to use words with sexual connotations, and accordingly should have been well aware that those comments constituted the sexual harassment. e. sexual harassment is unlawful, regardless of the 'level of seriousness', and can adversely impact the health and safety of those in the workplace who are subjected to such conduct, while also potentially creating a hostile workplace for others that have witnessed such conduct. f. intention is irrelevant in determining whether sexual harassment has occurred. g. the NSW Police Force takes a strong stance against sexual harassment and it is critical and in the public interest for police officers to comply with the law and not engage in behaviour that creates a hostile or unsafe working environment. h. the Applicant's admitted misconduct is significantly aggravated by his position as sworn police officer and Sergeant, and his supervisory responsibilities over (and power imbalance with) the unsworn targets of his admitted conduct. 7. Classifying or labelling the sexual harassment of persons as 'less serious' should be avoided. The Commission should not adopt such labels or assessment of the conduct. Sexual harassment is unlawful. The impact that it has on recipients - mostly females - will vary vastly between individuals. In this case, the female victims determined it serious enough to report the conduct. However, if one was to describe some forms of sexual harassment as less serious than others it runs the risk of sending the wrong message about that conduct. In the end, all persons have the right to feel safe in their workplace. They have the right to attend work and not be sexually harassed. That should have been evident to the Applicant at the time he engaged in the conduct.
4. In reply, the applicant put: Assessment of seriousness of misconduct 17. As submitted before the Commission, the insight and contrition shown by the Applicant together with his flawless career of 30 years and the facts of the misconduct are matters relevant to the Commission's assessment of the Order. 18. The Commission has to look at each case on its own facts and must therefore have regard to the particular misconduct. In that respect, the submission that the conduct was within the lower end of the objective seriousness is pressed. The issue is not as submitted by the Respondent whether "a conduct is objectively serious or it is not"; rather the task of the Commission is to assess the degree of seriousness of the conduct in question. 19. Breaches of the NSW Police Force Code of Conduct or its Policies are sufficient to establish misconduct (Allison v Commissioner of Police [2018] NSWIRComm 1005 at [137] and Grant Hilton Wright v Commissioner of Police [2015] NSWIRComm 1016). But it is submitted that there is a wide range of degrees of seriousness in misconduct. 20. As Commissioner Constant held in Flynn [at 84]: "Misconduct in the context of s173 Police Act may, and will usually be something less than conduct which would amount to "serious misconduct". 21. Further, quoting Sams DP in Whyte v Commissioner of Police [2010] NSWIRComm 84: "… findings of gross or wilful misconduct would usually result in the Commissioner's loss of confidence removal order under s 181D of the Act." 22. The Commissioner himself in deciding what actions to take against a Police officer must assess the degree of seriousness of the misconduct. 23. The Applicant has admitted and accepted that his conduct was misconduct. But, as in every instance of misconduct and disciplinary action, there is a wide range of degrees on the scale of seriousness, which will warrant removal in some instances, or demotion in others. 24. The Commission will therefore find that unlike the cases of Parfrey v Commissioner of Police [2010] NSWIRComm 19, Cassel v Commissioner of Police [2003] NSWIRComm 73 and Sewell v Commissioner of Police [2008] NSWIRcomm 93, the facts of the present matter are "less serious" than putting a colleague's hand on one's penis or openly offering a "fellatio" to another. 25. The Commission will also find that the conduct occurred in a particular context. 26. Finally, the Commission will reject the Respondent's submission at para 8.d. that "the conduct stretched over a four-year period between 2014-2018." The evidence does not support such a submission. 27. Ms Parciany's evidence is that the incidents ranged from a period from end 2017 to August 2018... The incidents recounted by Ms Mitchell… are undated… There is no evidence before the Commission to make a finding that… any incident occurred before the end of 2017. 28. As a result, the Commission will find that the Applicant's conduct was a lower end of objective seriousness. Sanction proportional to seriousness of misconduct 29. It is submitted that the reference to the case of Flynn v Commissioner of Police [2019] NSWIRComm 1030 as standing for the proposition that "the seriousness of the Applicant's misconduct required a substantial sanction" (at 228) is inaccurate. 30. As already orally submitted, the case of Flynn is not a case of sexual harassment. In Flynn, contrary to the present case, the applicant disputed that his conduct amounted to misconduct. He had no insight in his behaviour. The 11 issues were ranging from failure to investigate to providing false information and being untruthful. The Applicant there had a prior disciplinary history and poor performance with the NSW Police Force. Further, the Commission was not satisfied of the honesty of the Applicant. 31. In Flynn, the Commission undertook an objective assessment of the seriousness of the conduct and found "in the circumstances" of the case that the sanction was proportionate to the misconduct. 32. We submit that the word "proportionate" involves a variable that is factor capable of varying in value (the type of misconduct and its degree of seriousness). 33. The Applicant agrees with the proposition that misconduct requires a sanction but, depending on the seriousness of the misconduct, the sanction will vary. If not, then every misconduct would warrant a "one-size fits all" type of sanction. 34. The Respondent does not define what is a "substantial" sanction. In Flynn, based on the particular facts and circumstances outlined above, the sanction was a disciplinary transfer from Hume Local Area Command to Wollongong LAC and reduction in rank from Senior Constable Level 5 to Constable Level 5. 35. Ultimately, it is submitted that the Order under consideration is not proportionate to the Applicant's misconduct. 36. As in Shelley Jackson v Commissioner of Police [2019] NSWIRComm 1033, the Commission will find that "a demotion to Senior Constable would have significant effects on (her) standing and reputation in the NSWPF and (she) would also suffer a reduction in earnings." The Commission too will find that "an indefinite reduction in rank would be disproportionate to the misconduct."
5. I agree with the applicant's submission to the effect that there are more serious forms of sexual harassment than those alleged against the applicant and found sustained in this matter. Persistently propositioning a more junior work colleague for sex would be an obvious example.
6. However, I also agree with the respondent's submission to the effect that any form of sexual harassment in the workplace is serious and warrants disciplinary sanction.
7. Whilst the applicant may not have been aware of the impact that his conduct was having on the two complainants because they had not objected to it or asked him to desist, that does not excuse his behaviour. The applicant had been trained in matters such as respectful behaviour in the workplace. He should have been alive to the fact that more junior employees are likely to be reluctant to confront their line manager whose conduct they find offensive. That he was apparently oblivious to this reality compounds the seriousness of his misconduct.
8. I accept that the seriousness of the applicant's misconduct warrants serious disciplinary action against him. However, it is still the task of the Commission in matters such as the present one to examine the proportionality of the action taken against the applicant. In other words, the Commission must consider the question, "does the punishment fit the crime?".
9. The analysis of other police matters at paragraphs 45-54 of the applicant's written submissions (at [23] above) is helpful in gaining an understanding of how the Commission has grappled with this question in other cases. However, it also demonstrates that the facts of each case are different from the facts of other cases.
10. What is required is the weighing up of the seriousness of the misconduct against any mitigating circumstances and an assessment of whether the disciplinary action is proportionate in all the circumstances of the particular case.
11. In Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 Watson J, when dealing with an appeal from a reinstatement order made by Conciliation Commissioner Cansdell, stated as follows (at 233): In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence.
12. This passage from the judgement of Watson J has been cited many times in this jurisdiction in cases where the Commission has been called upon to determine whether disciplinary action against an employee for misconduct was harsh. One such case was Lawrance v Commissioner of Police (2010) 199 IR 139. In this case, Walton J, Vice-President, determined an application for review of an order by the Commissioner of Police removing a police Sergeant from the NSW Police Force who had exposed his penis, with a bottle opener attached to it, at a staff Christmas party held in a restaurant and attended by more junior male and female police officers and their partners. In considering the issue of harshness, his Honour stated: 22 The High Court of Australia discussed the distinction between the concepts of harsh, unreasonable or unjust in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465; 61 IR 32 at 72 where McHugh and Gummow JJ stated (in the context of an award provision): … 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. 23 The fundamental exposition of principle as to what may constitute "harshness" in the removal of a police officer for the purposes of s 181E(1) is found in the decision of Watson J (made in the context of an unfair dismissal claim) in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (NSW Branch) [1973] AR (NSW) 231 at 233. In Little No 2 (at [70]) the Full Bench stated, in this respect, as follows: In order to illuminate this conclusion, it is unnecessary to go any further than to recall the classic exposition of principles applicable to unfair dismissal matters given by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233, which principle, whilst stated in relation to proceedings under the Industrial Arbitration Act 1940, is equally applicable to proceedings under the Industrial Relations Act. His Honour there stated: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (See also Department of Health v Kaplan [2010] NSWIRComm 65 at [29] (Kaplan).) 24 The concepts of the "severity" of the dismissal and "too harsh a consequence" in Metropolitan Meat Industry Board naturally bring with them the notion that the assessment of harshness involves, in part, an evaluation of the gravity of any misconduct giving rise to the removal: Collins at [37] and Brennan at [70]. Thus, the question of proportionality arises (see Byrne at 465; 72 and 467; 72-73, Evans at [7] and Kaplan at [28]). Further, in the case of an application based on harshness, the Commission must take into account whether there were any mitigating circumstances (see Little No 2 at [70] and [71]). 25 Before turning to mitigating circumstances, it is appropriate to reflect upon an observation made by Schmidt J, in the minority, in Evans (at [84]). Her Honour accepted, as being open to the trial judge in an application pressed upon the ground of harshness, various considerations, including the nature and degree of the conduct engaged in by the police officer and other mitigating circumstances such as his remorse, good character, steps taken to deal with his drinking problem and other personal and financial circumstances. These, her Honour found, were relevant, even when the officer had engaged in serious misconduct. In this respect, Schmidt J accepted the trial judge's reliance upon Metropolitan Meat Industry Board. However, her Honour observed that what might be found as an unfair dismissal under Pt 6 of Ch 2 of the IR Act on the grounds of harshness might not be necessarily so concluded in proceedings under Div 1C of Pt 9 of the Police Act because what was not required to be considered in Metropolitan Meat Industry Board was how the conclusions (relevant to the principles in Metropolitan Meat Industry Board) were to be balanced with the public interest in "the maintenance of the integrity of the Police Service". That observation may be accepted and is broadly consistent with the approach of the Full Bench in Brennan at [70] and [71]. However, there is an observation and a qualification which should be made. First, by way of observation, I apprehend her Honour accepted, and I agree, whilst s 181F(3) is applicable (as earlier noted) to the assessment of harshness, that approach does not alter the factors applicable to the assessment of harshness, per se, namely, those stated in Metropolitan Meat Industry Board. Nor do those public interest considerations relieve the Commission of the need to fully assess the ground of harshness, when it is raised, in accordance with the factors stated in Metropolitan Meat Industry Board. Secondly, by way of qualification (as noted by the majority in Evans), the considerations arising under s 181F(3) do not dominate or necessarily determine a review when the issue of harshness is raised, but are to be weighed in the balance in accordance with the aforementioned principles (see also the approach adopted by the Full Bench in Johnston at [35] and [36]). 26 Finally, I turn to the factors relevant to the consideration of mitigation. Many of those factors have been mentioned in the preceding paragraphs. It may be useful, however, to further illustrate some of these factors by a series of subject headings, as follows: (a) Good previous service and character: the Commission may have regard to whether the applicant had a good service record and good professional and character references: Little No 2 at [83]; Collins at [62] and Evans at [7]. (I will discuss further the relevance of character references below.) However, the counterpoint is that prior misbehaviour may also be taken into account, even if not expressly considered in the Reasons for decision by the Commissioner: Collins at [37] and [38]; (b) Absence of a likelihood of re-offending: it may be relevant to consider whether there is any likelihood of the officer re-offending: Evans at [7]. This consideration may also include questions as to whether an undertaking was provided not to further engage in conduct which was causal of any misconduct: Dobbie at [34], [52] and [67] and Johnston at [42]. This consideration may depend very much on the particular circumstances of the case and the conduct engaged in by an applicant. The authorities make clear that relevant considerations in mitigation are whether the misconduct was due to an excessive consumption of alcohol and if the officer had taken steps to seek professional help to overcome that problem: Evans at [7], Collins at [67] and Dobbie at [34] and [52] (see a similar approach with respect to medical or psychological problems: Johnston at [43] and [61]); (c) Acceptance of responsibility and remorse by the officer: objectively demonstrable remorse and contrition and the acceptance of responsibility may be taken into account as mitigating factors: Collins at [67] and Evans at [7]; (d) The stigma which may attach to the circumstances surrounding the removal from the Police Service: Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263 at [26] (Hosemans No 4); (e) Consequences of the removal: in Little No 2 at [69], the Full Bench made it clear that "any exclusion of consideration of the consequences of a removal (even if prima facie the decision was in some way said to be 'justified') is erroneous as such an approach would effectively remove from consideration essential aspects of the statutory tripartite test, such as whether the removal was, in all the circumstances, 'harsh'". In Collins at [63], the Full Bench, in reliance on Metropolitan Meat Industry Board, adopted the approach in Little No 2 at [69], thereby emphasising the necessity to give consideration to "the consequences facing an employee and to the mitigating factors, including the immediate consequences of dismissal, such as the impact on superannuation" following the removal of a police officer. Both the financial consequences of the removal and the prospect for the applicant's economic future are relevant: Johnston at [70]. This factor will plainly have greater significance where it may be demonstrated that the impact upon the removed officer was, given the personal circumstances of the officer, particularly severe or, in some cases, out of the ordinary. It must be balanced with other factors bearing upon the question of harshness, not the least of which is the seriousness of the applicant's misconduct.
13. In applying consideration of these factors to the relevant facts in the case before him, Walton J ultimately ordered that the applicant in that matter be re-employed in the NSW Police Force at the rank of Senior Constable.
14. In my opinion, considerations similar to those outlined by Walton J in Lawrance are equally applicable to the consideration of whether an order made pursuant to section 173 of the Police Act is harsh.
15. As stated above, I readily accept that the misconduct of the applicant, as set out in the Order (at [4] above) was serious and warranted serious disciplinary action being taken against the applicant. However, I consider that, in this case as in Lawrance, there are a number of mitigating factors which I discuss below.

The applicant's good character

1. The applicant gave evidence, which was not disputed, of his service to the community over the past 20 years. He has served as APEX Australia State President NSW/ACT (2008-2009) and was a member of the National Board. He was State Chair NSW/ACT APEX Australia Teenage Fashion Awards (2008-2014) and through APEX became involved with the Guide Dog Association of New South Wales and participated as a volunteer with their fundraising initiatives during the period between 2008 and 2012. He is a Life Member of APEX Australia and a Gold Life Member of the APEX Foundation.

The applicant's good work record

1. Apart from the matters that led to these proceedings, the applicant has never been the subject of any disciplinary action throughout his 29 year career in the NSW Police Force.
2. In his first affidavit, the applicant stated: 28. My NSWPF Service History demonstrates my hard work ethic, proficiency and accomplishments as a NSWPF officer. My efforts have been recognised by the number of promotions I have attained and the many awards that I have received… 29. My hard work has also been recognised by the NSWPF and members of the community including, but not limited to the following instances: • On about 19 May 1998 I received a letter of appreciation from BHP Steelworks in regard to assisting with their Safety Program. • On about 16 September 1998 I received a letter of appreciation from John Miner in regarding my kindness and sensitivity shown during a motor vehicle accident. • On about 22 September 1998 I received a letter of appreciation from Mr Tony Skimmings from BHP regarding my excellent professionalism demonstrated during a road trauma lecture that I presented. • On about 14 March 2000 I received the National medal. • On about 1 June 2001 I received a letter of thanks and congratulations from Mr Holmwood (Executive Officer to the Executive of Human Resource Services) for my professionalism and courtesy shown during the RTA Big Ride event. • On about 5 May 2005 I received a letter of appreciation from Mr Douglas Tassie for my courteous and helpful manner in a theft-related manner. • On about 15 June 2007 I received the NSW Premier Emergency Award for my work efforts in the Hunter/Central Coast storm emergency that occurred about that time. • On about 23 May 2008 I received the 1st Clasp to NSW Police Medal. • On about 7 March 2014 I received the 2nd Clasp to NSW Police Medal. • On about 21 April 2015 I received an email from Sergeant D. Beverly, congratulating the Newcastle VKG Staff on day shift for our efforts and professionalism displayed during the storms on 21 April 2015. • On about 3 February 2005 I received a Certificate of Appreciation from Oxley LAC in regard to contributions to the Telstra Country Music Festival. • On about 12 May 2004 I received a letter of thanks from Inspector Marty Thick for my participation in the Moree Secondary Student Firefighter program. • On about 9 August 2005 I received LAC/Section Commendation in recognition of my excellent police work at the property 'South Cownlee' on 3 August 2005 during the recovery operation of two male persons trapped in an irrigation trench after a wall collapsed on them. • On about 15 October 2008 I received the 1st Clasp to National Medal. • On about 8 February 2013 I received the Commissioner's Sesquicentenary Citation. • On about 17 October 2013 I received a memorandum from the Centre Commander in regard to my good work performance during the bushfires that occurred about that time. • On about 16 March 2016 I received an award from Royal Life Saving Society Australia (NSW Branch) in recognition of my outstanding attempt at saving a human life by the application of life-saving skills by an Officer of the NSW Police. • On about 11 April 2018 I received a Region Commander's Commendation presented at the Newcastle Radio Operations Centre Award Ceremony.
3. None of the above was put in issue by the respondent.

Absence of a likelihood of re-offending

1. In the applicant's first affidavit, he stated: 43. I acknowledge my inappropriate behaviour and understand the severity of the situation. I can confirm that this contrary conduct will not arise again and that my behaviour will be adjusted accordingly.
2. In his second affidavit, the applicant stated: 27. I reiterate that the Respondent can be confident that I will not engage in similar conduct again.
3. The applicant was not seriously challenged on these statements. During the applicant's cross-examination the following exchange occurred: Q. You just gave some evidence this morning that you say that you would be mindful of not engaging in this type of conduct in the future? A. Yes. Q. Wouldn't you be mindful of not engaging in that conduct in the future not because of these circumstances but because it's conduct you're not entitled and should not be engaging in? A. It wasn't a wilful decision on my part to engage in inappropriate behaviour. At the time, I didn't do it - ………………………… Q. Ms Perchani was wearing a top and you said, "Nice pussy", you intended to say that, didn't you? A. I didn't say it by accident, no. Q. So it was certainly wilful behaviour on your part in that respect? A. In the fact that I said it, yes. Q. You deliberately chose the words "Nice pussy" because of the connotations that came with it, correct? A. It was a cat on the T-shirt and I made the comment, "Nice pussy". Q. But what I'm asking you is that you chose the word "pussy" in particular because you understood or know that it was sometimes referred to as - a name for "vagina", correct? A. Yes. Q. You deliberately chose that word because of that reason? A. Yes. Q. I want to go back to the question I asked you. What I was suggesting to you was, in respect of your evidence about engaging in misconduct in the future, what I'm suggesting to you is that you would be minded not to engage in the conduct because it's conduct that you're not and should not be engaging in at all? A. There's a bit too much of the question for me, sorry. Q. What I want to suggest to you is - I'll put it another way. Your statement that you would be mindful of not engaging in this conduct in the future, what I want to suggest to you is that you should be mindful of that, irrespective of what's happened in these proceedings. Do you agree with that? A. Yes, I do. Q. Because that is your obligations as a sworn police officer, correct, not to engage in that type of conduct? A. It is my obligation and, as I stated, I understand professional distance. I'm now more cognisant of the fact that, regardless of how long a friendship is or conversation's made, that inappropriate is inappropriate.
4. Having observed the applicant giving his evidence in the witness box, I formed the view that he was genuine and sincere in stating that he would not transgress in a similar manner in the future. I have confidence that he will not misconduct himself in such a manner again, not only to avoid further disciplinary action but because he now fully realises it is the wrong thing to do.

Acceptance of responsibility and remorse by the applicant

1. In the Notice, Acting Superintendent Stafford stated: Finally, I also have had regard to the remorse and contrition you have shown throughout the investigative process as well as your acknowledgement that your conduct as referenced by the investigation 'is below the standard which is expected of Police Officers'.
2. In his witness statement, Assistant Commissioner Whyte stated: 34.10. In making my decision I also weighed the above matters against Sergeant Robbs' length of service, the remorse and contrition he has shown throughout the investigative process and his assurances that he will not engage in similar conduct again.
3. Under cross-examination, Assistant Commissioner Whyte stated: A. I certainly agree that the applicant has exhibited levels of contrition in regards to it and acknowledge his wrongdoing.
4. In the applicant's second affidavit, he stated: 26. The proposed Order against me is harsh, unreasonable and unjust in the circumstances of the insight that I have demonstrated, the admissions that I have made to save the complainants from further distress of having to prepare evidence and come to court, the contrition and remorse that I have shown regarding the allegations subject of these proceedings, my lengthy and dedicated service to the NSW Police Force and the community, and my 'clean' disciplinary service record of over 28 years' of service.
5. The applicant was not challenged on the genuineness of the remorse and contrition that he continues to feel over his conduct towards the two complainants.
6. I have no doubt that the applicant has accepted responsibility for, and is genuinely remorseful and contrite about, his misconduct.

The stigma which may attach to the demotion and disciplinary transfer of the applicant

1. The stigma and damage to the applicant's reputation and standing in the NSW Police Force and in the community generally that will be caused by his demotion and disciplinary transfer will be significant. So much is inevitable.

Consequences of the demotion and disciplinary transfer for the applicant

1. In his first affidavit, the applicant stated: My Current Carer's Responsibilities 37. I am the primary carer and support person for my elderly 92 year old mother who has recently been diagnosed as showing signs of senile dementia and other medical conditions such as reflux, hypertension, poor hearing and a blood condition… 38. I provide domestic assistance to my mother such as driving her to the garden nursey, registered club and the shopping centre. Further, I provide support to her such as paying some her bills, managing her mobile account and her online affairs such as Medicare, pension payments and insurance. 39. My brother and I conduct minor repairs to her property however I live the closest to her and she is heavily reliant on me providing assistance for her daily activities. Given I was my father's primary caregiver until he passed away a few years ago, I know the time required to attend to an elderly parent. My brother has a family who take his time whereas I am a single man and can dedicate that time. 40. Given my mother's advanced age and medical conditions, I cannot take a posting to a police station that would be to the detriment of my ability to care for my mother, say for example if I attend for duties in the Sydney metropolitan area which would require a one way commute of two and a half hours to and from my residence and my assigned police station (on top of a 12 hour work shift). It would be objectively hazardous (for me and the community at large) and against NSWPF Occupational Health and Safety guidelines for me to have to undertake a 17 hour day if I had to report for duties in Sydney and then repeat this for the shifts in the days following. I am further concerned that such a transfer to a station in the Sydney metropolitan area will impact on my ability to perform my duties efficiently and will lead me to suffer extreme levels of fatigue that will impact my ability to perform my role as a Supervisor of other police officers. 41. As I am my mother's primary carer, I also believe that if I am to be transferred from the Newcastle region it will increase my mother's distress and overall medical condition, as she has become easily anxious. This heightened state of anxiety affects her overall safety and wellbeing. 42. I am also involved with my brother's family (he being my only sibling) who are based here at Newcastle and are my support network.
2. The applicant was cross-examined on this aspect of his evidence as follows: Q. Now, just so I'm clear, your challenge to the order that has been made is really on two distinct bases. The first is what you outline as the financial consequences for you, that's correct? A. Yes, I believe a major financial impact, going from sergeant level 9 to senior constable. Q. Being what you describe in your first affidavit? A. Yes. Q. The second is the consequences that you say would result from a transfer away from Newcastle, if I can put it this way, your caring responsibilities, is that right? A. Yes. Q. They're the two bases upon which you challenge this order? A. I believe the order isn't consistent with the benchmarks that Police set and by reducing my rank and also my salary and the transfer would potentially impact mum, yes. Q. Just the "potentially" impact your mother, does your mother live by herself? A. She does. Q. You said that she was - these are my words but my interpretation - "self" - I think it was "self-reliant" or - put it this way, she doesn't have any problems bathing or cleaning herself and things like that? A. No. Q. How long has she lived by herself for? A. Many years. Q. Ten years, 15 years? A. Yes. Q. If you had any concern about her ability to look after herself, would it be that you would have a discussion with your brother about whether she would come and live with you or go and live with him or go into some sort of care? A. I would absolutely have that discussion with my brother. Q. You haven't had that discussion at the moment? A. It's not required at the moment, so mum's had a CAD assessment, she has a care plan in place. It's just not required at the moment. Q. Other than the circumstances where you say you take some takeaway meals to her, does she cook her own food or does she have people bring her food? A. No, she cooks her own meals. Q. She's doing pretty good at 92 then? A. She's awesome for 93. Q. Ninety-three? A. Yes. Q. If I can just ask you, with your first affidavit, you say in paragraph 38 you provide domestic assistance, such as driving her to the garden nursery, registered club and shopping centres. Are they things that you can do when you're not rostered to work or on your weekends? A. Yes. Q. I think you also said that your current roster allows you - you don't work Fridays, is that right? A. At the moment, no, I do not. Q. Do you understand that you are able, as part of the NSW Police Office, to ask for flexible work practices? A. Yes. Q. Do you accept that if you needed to do these things for your mother, that you could seek, I take it like you have, flexible work practice to allow you to do that? A. I haven't sought flexible work practices. I'm doing the roster I was-- Q. Well, just in relation to if you felt that you had to do these things in paragraph 38, that you could ask for flexible work practices to allow you to do that? A. I could ask for flexible work practices in relation to rostering. That would have to be agreed with whatever command I was at. The impact of the extra travel or having to move residence, depending on where the location was, is what concerns me greatly. Q. So, at the moment, you're stationed at Maitland, is that right? A. I'm working from Maitland. Q. Sorry, working from Maitland. Is that about a half an hour from Waratah? A. Yes. Q. Would you accept that if you were required to work at Gosford, it's about an hour's drive from Waratah? A. Depending on time of day, yes. At different times, possibly more. Q. Could be a little more could be less? A. Yes. Q. Depending on traffic on the - I guess it's the F3, or what do they call it now? The-- A. F3, M1. Q. Yes. Just so I understand, do I understand from paragraph 40 of your first affidavit that if you - your real concerns about attending to these things for your mother arise if you were transferred to the Sydney metropolitan area, the travel time there? A. Certainly a metropolitan posting would either mean that I would have to move residence, which is certainly not an option in relation to mum, especially if operational on 12 hours shifts. It's not sustainable from a health and safety point of view. In relation to Gosford, I have no problem if Gosford was a posting. I see that as a reasonable travel time that a lot of people are doing and I could accommodate that without a major detrimental impact on myself or mum. COMMISSIONER: Isn't that the decision that has been made? DARAMS: Yes. COMMISSIONER: Well, that doesn't seem to be an issue, does it? DARAMS: No, not any longer. Q. Could I just ask you one question before I move onto something slightly different? You say in paragraph 37 and 41 that you're your mother's primary carer. What do you mean by "primary carer"? Do you mean that you're the first person to respond if something arises? A. I am the first person to respond. Q. Out of you or your brother? A. Yes and I'm in a more agreeable position to respond, in that I don't have the responsibilities that my brother has. Q. But in respect of taking care of herself, would you accept that she would be her primary carer? That is, she is able to take care of herself, she lives, independently, she cooks for herself, she cleans for herself? A. Yes. Q. So it's not the proposition she actually needs anyone else to care for her. That's all right? A. In relation to caring for herself, no, she does that, remarkably well. I believe she is able to do that with the support and the reassurance that comes from having me in the position I'm in and doing what I do.
3. I am satisfied that a transfer of the applicant to any location more than 60 minutes travelling time from his home in Waratah is likely to impact on his ability to provide the level of care that he currently provides to his elderly mother now and in the future.
4. In relation to the financial impact of the Order on the applicant, at paragraph 9 of the respondent's written submissions, the applicant's claim that the Order will cause hardship to himself and his family was dealt with as follows: 9. The Respondent made submissions to the effect on 5 August 2020 that it was incumbent on the Applicant - because it was his onus to do so - to bring the evidence before the Commission that would allow the Commission to properly assess the asserted "financial hardship" the Applicant says he will suffer. The Respondent supports that submission by what the minority (McHugh and Gummow JJ) of the High Court said in Byrne (at 422) that a dismissal may be harsh "in its consequences for the personal and economic situation of the employee ...". That is, in order to properly assess the consequences for the economic situation one needs a full explanation of what that situation is. Otherwise, one is left with the fact of the sanction alone and not a complete picture of its consequences. To repeat the position advanced orally on 5 August 2020, the reduction in remuneration may have very little impact for the economic situation of the Applicant, particularly when the figures represent gross amounts and not after­ tax figures. Support for the Commission requiring evidence of the economic impact in assessing harshness is derived from the decision of Webster C in Duncan v Commissioner of Police [2020] NSWIRComm 1011 at [134]-[138].
5. I accept that there is little evidence of the consequences that the Order will have for the economic situation of the applicant. However personal and/or economic impact is not the sole test for harshness. The full passage from the joint judgement of McHugh J and Gummow J in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 (not 422) is as follows: 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. (my emphasis)
6. Further, the decision of Webster C in Duncan v Commissioner of Police [2020] NSWIRComm 1011 at [134]-[138] provides only limited support for the respondent on the question of harshness. In Duncan the financial impact on the applicant of the reduction in increment was the loss of $11,000 over two years after which time he would be restored to his previous salary for an Inspector 8th Year, currently $175,348 per year. This is a significantly lighter financial penalty than the ongoing yearly reduction of $18,057 in pay imposed on the applicant in this case. Despite the lack of evidence of the applicant's current financial situation, I accept that the financial loss to the applicant if the Order is upheld will be significant, not only in terms of reduced earnings, but, potentially, also in respect of his accrued leave and superannuation entitlements.
7. At paragraphs 13-14 of the written submissions, the respondent deals with the emphasised passage from Byrne (at [65] above) in the following terms (footnotes omitted): 13. In dialogue between the Commission and counsel for the Respondent on 5 August 2020, as understood by counsel for the Respondent, the Commission raised the proposition that a finding of harshness could be made based on the proportionality of the response to the misconduct. That such a finding could be made, as a matter of principle, is supported of course by what the minority in Byrne (at 428) (sic 465) said in the extract following from what is set out in paragraph 9 above that "and may be harsh .. . because it is disproportionate to the gravity of the misconduct in respect of which the employer acted''. 14. However, the Respondent's submission is that the Proposed Order is not disproportionate taking into account the gravity of the misconduct as set out in paragraphs 6 and 7 above. This is a case of admitted sexual harassment of two unsworn female officers by an older male colleague in a senior position to them who was required to lead by example. Such conduct is unlawful. It was engaged in at the Respondent's workplace where the two female employees were entitled to freely attend and do their work without being subjected to such conduct. The Respondent, rightly and appropriately as the NSW Police Force, has taken a strong stance against such conduct. AC Whyte determined the demotion contemplated in the Proposed Order to be proportionate to the Applicant' misconduct.
8. I deal with the issue of the proportionality of the penalty imposed on the applicant further in these reasons for decision.

Other matters

1. Another mitigating circumstance that weighs in favour of the applicant in this case is his admission to the allegations against him which have been sustained, which avoided the need for the respondent to call Ms Parciany and Ms Mitchell to give evidence in these proceedings and be cross-examined. This would most likely have been a distressing experience for both women (see paragraph 36 of the applicant's first affidavit at [16] above).
2. In response to this part of the applicant's evidence, Assistant Commissioner Whyte stated in his witness statement the following: 42. At paragraph 36 of his statement, Sergeant Robbs says that he is agreeable to a disciplinary transfer to Brisbane Waters Police District if the reduction to his Sergeant incremental level is reasonable "having regard to my conduct and the admissions that I have made to save the complainants from any additional distress in having to endure giving evidence at a hearing at the IRC". I am concerned by the implication in this statement that the admissions made by Sergeant Robbs in some way negates the severity of his misconduct. I do not consider that any requirement of the complainants to give evidence is a relevant factor to be considered in determining the reduction of Sergeant Robbs' rank. I maintain that reduction of Sergeant Robbs' rank is an appropriate disciplinary outcome having regard to his conduct and the expectations of a Sergeant.
3. I disagree. In my opinion, the admissions made by the applicant and the avoidance of the necessity to call the complainants to give evidence in these proceedings is a mitigating factor which should be weighed in favour of the applicant in much the same way as an early guilty plea to a criminal charge generally results in a discounted sentence.

The context in which the misconduct occurred

1. I have no doubt that the sexual harassment by the applicant of two female work colleagues, who were junior to him, constituted serious misconduct which warrants significant disciplinary action against the applicant. However, in assessing the level of seriousness of the applicant's misconduct I have taken into account the context in which it occurred.
2. In a written statement to police made by Ms Parciany on 7 September 2017, she stated: 5. In my role, I work closely Sgt Robbs and he is my supervisor. I provide both he and Insp Atterby with administrative support. We all get on very well, Inspector Atterby is great. Sgt Robbs and I have a bit of a love hate relationship. He's a very tough person. We are different personalities. I am softer and I find that we get along, and then we don't get along because our personality types clash.
3. During an interview with police on 14 November 2018, Ms Parciany responded to questions as follows: Q1. This is a type written interview between Chief Inspector Scott and Melissa Parciany at Newcastle Radio Centre at 10.40am on 14 November, 2018. As you are aware Melissa, I interviewed you on 7 September where I obtained a statement from you outlining a number of allegations against Sergeant Robbs. Following further enquiries, I interviewed Sergeant Robbs on 24 October 2018. Do you understand that? A. Yes. Q2. During my interview with Sergeant Robbs, a number of issues were raised that I need to clarify with you. Do you understand that? A. Yes. Q3. During that interview, I asked Sergeant Robbs if any of the conversations between the two of you were of a sexual nature and he told me that you had once told him about 'motor boating' or 'power boating' your sisters breasts and that she would only allow you to do that? What can you tell me about that conversation? A. I can't exactly remember how the conversation came about, but I do recall saying that. So, I would have talking about, it would have been my older sister, and I would have been discussing how she was going out on the weekend, and I think she was wearing a top that was revealing. To me it was just a general conversation about what happened on the weekend with my sister. Q4. What does the term ''motor boating' or 'power boating' mean? A. To me it means when you put your face in someones chest and make a sound into their chest. Q5. By chest do you mean breasts? A. Yes. 06. And is that something that you actually did? A. With my sister, yes. Q7. I have also been told that you called Sergeant Robbs 'home slice' and referred to him as 'your home slice'. What can you tell me about that? A. Its just a made up name. We all have names for each other in the office. He would call me red priestess or red woman based on the game of thrones characters, and I would call him LOL Lord of Light, Grumpy Cat and Gato Grunon which is Mexican for Grumpy cat and home slice. Q8. What does home slice mean? A. To me it means like, your Pal. That's what it means to me. Q9. So is it like a term that means friend? A. Yes. Q10. So if you used the expression 'My home slice' what did that mean? A. Like I said, my Pal, my friend. Q11. When I have been in the Newcastle Radio Centre, I noted pictures stuck on the door of Sergeant Robbs office. I believe the picture was of a cat known as 'Grumpy Cat'. What can you tell me about those? A. Well that all started when the original picture was of a Taco Cat. And that was an in joke. I think he has a t-shirt that has a taco Cat. And Deb and the boss called him Taco Cat and I said that I didn't know about Taco Cat but I thought he was more like grumpy cat so that is where all the grumpy cat pictures came from. Which he seemed to find amusing. And he joined in and put his own Grumpy Cat pictures up there. Q12. Did you stick some of the pictures on the door? A. Yes. Q13. I have also been told that both yourself and Sergeant Robbs often talked about fashion and clothes you would buy during your lunch break. What can you tell me about that? A. If I bought something like new shoes or something I'd show him, or if I bought new perfume. I can't recall anything specific that stands out. Q14. The conversation we spoke about earlier where you said you told Sergeant Robbs about 'motor boating' your sister, would you have that sort of conversation with other people in the workplace? A. Probably. Because I don't really think of that, I just think of that as a story that I'm telling about my weekend. Q15. Do you think talking about that sort of behaviour that occurs outside of the workplace, in the workplace has a sexual connotation? A. Not when I'm talking about my sister no. To me that was just something funny that I did with my sister. And if he had at any stage told me he was offended by that, I would have stopped and apologised but he didn't seem to be upset by that at all. Q16. ls there anything further you wish to say about this matter? A. Only that if he thinks that anything that I have said to him is of a sexual nature and is a come on he is delusional. I am guilty of oversharing, for sure. And, if I go overboard and I speak about something that is inappropriate then I am willing to accept responsibility for that. If this has taught me anything, it has taught me that I can't be talking about my personal life at work. I feel like how he is putting that is not in the light in which it was meant.
4. In a written statement to police made by Ms Mitchell on 12 September 2017, she stated: 7. Melissa sits directly outside Troy's office. l would say that they have a close working relationship due to the dynamics of the workplace. The Command team is essentially three people. For example, Melissa has put up all over Troy's door, pictures of 'grumpy cat'. I have been in the Command office when I have seen Melissa curtsying to Troy, and saluting him, saying "would you like a cup of tea my master." It appeared to me as if Melissa was playing up to Troy. I had never seen Melissa behave like that with previous people in the office who were in the Commander and Coordinator role. I have also seen Melissa act as if she was a puppy and follow Dale around. She has said to me that if Dale ever leaves that she will follow him to his next role. I assume that she really likes working for Dale. In my assessment, I don't believe her behaviour towards Troy or Dale is of a sexual nature, but I consider it a bit strange and unprofessional.
5. Of her own relationship with the applicant, Ms Mitchell stated: 8. I am aware of some of Troys behaviour in the workplace and I have experienced it first hand. My current association with Troy is purely that of a working relationship, a bit distant, I wouldn't put myself in a one on one situation or closed door scenario with Troy. In the early days of my employment, I was friends with Troy, having several times associated outside of the workplace for coffee, but having observed behaviours that I consider odd, I rescinded the friendship and cut ties on levels such as social media, and catch up outside of work. The friendship was never more than a work association, and in fact my now husband was working in the radio room at the time, and I was with my husband at the lime.
6. Considering the context in which it occurred, being the nature of the relationships between the applicant and the two complainants as described by them, I, nevertheless, regard the conduct of the applicant which led to the sustained allegations against him as serious misconduct. However, against this consideration there are a number of significant mitigating circumstances as set out above that need to be considered when assessing the proportionality of the disciplinary action imposed upon the applicant.

The need for supervision of the applicant

1. In re-examination, Assistant Commissioner Whyte gave the following evidence: Q. You were asked some questions about your belief in relation to Sergeant Robbs' fitness to be a sergeant. And you were asked some questions as to whether you had any concerns about whether he was given sergeant's duties recently. What is your concern about Sergeant Robbs' fitness to remain a sergeant? A. My concern with Sergeant Robbs would be his fitness to remain a sergeant. A lot of that will be dependent on what sort of supervision was in that particular workplace because I believe that he's demonstrated a level of behaviour that, comfortably, I don't think, without supervision, he could perform the role of a sergeant. Q. And what supervision would - well, can you explain the types of supervision that one might receive, for instance if they are a sergeant level 6 - sorry, a senior constable level 6? A. Again, it differs between the metropolitan areas and the regional areas. So, a police district is, in normal practice in most police district, that you wouldn't have an inspector working. So, a sergeant on shift is the most senior police officer, running the police response for the whole area, with no supervision. In a metropolitan area, so therefore a senior constable would always have a sergeant supervision, in the vast majority of times, in a police district area, but won't have that level of inspector. In the metropolitan commands, your senior constable will always have a sergeant supervision and always a 24/7 commissioned officer working within that command. So, there's varying levels of location of supervision. So, would be uncomfortable, based on the behaviour that was demonstrated here, for Sergeant Robbs to be the senior police officer on a shift at any time.
2. I reject this evidence of Assistant Commissioner Whyte as to the need for the applicant to be supervised by another Sergeant or other more senior officer. The applicant was promoted to the rank of Sergeant in August 1999. On the respondent's case, the applicant's "admitted conduct in this case stretched over a four year period between 2014-2018". This timeframe is doubtful given that the first incident reported by Ms Parciany, which formed the basis of Allegation 1, Incident 2, occurred before Christmas in 2017 but she couldn't recall the exact date and Ms Mitchell did not provide a timeframe for the incidents which formed the basis of Allegation 2, Incidents 7, 8 and 9. But even on the respondent's case, there is no evidence of any misconduct by the applicant during the period 1999-2013 such as would require that he be supervised by a more senior officer. It was during this period that the applicant received: • the Commissioner's Sesquicentenary Citation. • a memorandum from the Centre Commander in regard to his good work performance during the bushfires that occurred about that time. • the 2nd Clasp to NSW Police Medal. • an email from Sergeant D. Beverly, congratulating the Newcastle VKG Staff on day shift for their efforts and professionalism displayed during the storms on 21 April 2015. • an award from Royal Life Saving Society Australia (NSW Branch) in recognition of his outstanding attempt at saving a human life by the application of life-saving skills by an Officer of the NSW Police.
3. Given the applicant's insight into his conduct, acceptance of responsibility, genuine remorse and commitment to not re-offend, I am fully confident the he will be capable of operating as a Sergeant of police without the necessity for supervision by a more senior officer.

Availability of a Sergeant's position

1. In the respondent's written submissions, the following was put: Alternative order 17. At paragraph 56(b) of the AS, the Applicant proposes the alternative order of a reduction in rank from Sergeant Level 9 to Sergeant Level 8 and a disciplinary transfer within a commutable distance of less than 60 minutes of his residence. The Respondent submits that the onus rests with the Applicant to establish that the alternative order proposed is able to be made. 18. The Respondent is not able to create positions in the NSW Police Force where they do not exist. There is no evidence before the Commission regarding the availability of Sergeant positions within a commutable distance of less than 60 minutes of the Applicant's residence. 19. Further, the Respondent submits that the Applicant has not established that he does in fact have any carer's responsibilities that would require any transfer to be to a location within a commutable distance of less than 60 minutes of the Applicant's residence. 20. If the Commission was minded to revoke the Proposed Order and make an alternative order, such as the alternative order suggested by the Applicant, the Respondent submits that there is no evidence upon which the Commission can be satisfied that an alternative is available and can be given effect to by the Respondent. The Respondent further submits that the Applicant has not relied on any evidence to support that the proposed alternative order is possible and such an order cannot and should not be made in the absence of this evidence.
2. I reject the above submission of the respondent. The effect of it, if accepted, would be to severely restrict the types of orders this Commission could make pursuant to section 177 of the Police Act.
3. It would follow that every time a police officer was subjected to an order that involved a reduction in rank, coupled with a disciplinary transfer, the Commission would be prevented from making an order restoring the officer to the rank held prior to the order taking effect unless there was evidence before the Commission as to the availability of a position or positions at that rank at the new location. Such a restriction would severely limit the power of the Commission to make orders in cases such as the present one and cannot be the intention of the legislation.

Proportionality of the disciplinary action

1. At paragraph 56 of the applicant's written submissions, the Commission was asked to make the following orders: a. To revoke the Order made by the Commissioner of Police on 4 September 2019 that the Applicant be reduced from his current rank to that of Senior Constable Level 6; and to revoke the order that the Applicant be subject to a disciplinary transfer to Brisbane Waters Police District. b. ln lieu, the Applicant be reduced in rank from Sergeant Level 9 to that of Sergeant Level 8 and be subject to a disciplinary transfer within a commutable distance of less than 60 minutes from his current address.
2. The financial impact on the applicant of these orders, if made, would be to suffer a reduction in gross income of $1,385 for one year. Such an outcome is seriously inadequate and would not be proportionate to the seriousness of the applicant's misconduct.
3. However, I also regard the reduction in rank from Sergeant 9th Year to Senior Constable Level 6 with the resultant reduction in pay of $18,057 per year ongoing, coupled with a disciplinary transfer, as a disproportionate penalty for the applicant's misconduct. On current rates of pay, the applicant will suffer a reduction in gross income of $180,570 over the next 10 years unless he is promoted back to the rank of Sergeant. In my opinion, a financial penalty of that magnitude is disproportionate to the seriousness of the applicant's misconduct.
4. During the re-examination of Assistant Commissioner Whyte the following exchange occurred: COMMISSIONER Q. Assistant Commissioner, if I was to form the view that, based on the contrition that Sergeant Robbs has demonstrated during these proceedings and the insight into his past behaviour and commitment to not repeat that type of behaviour in the future, if I was to form the view, based on those matters, that the decision to demote him to senior constable level 6 was too harsh a punishment, but a demotion to a lower level of sergeant was appropriate, he would then progress, incrementally, by years of service, back to level 9. That's the case, isn't it? A. Yes, it would. Yes, he would.
5. I have determined that a more proportionate disciplinary outcome in all the circumstances of this case would be a reduction in increment for the applicant to Sergeant 3rd Year on the current rate of $113,844 per year. This would mean that the applicant would progress by increments back to Sergeant 9th Year over the next six years. The total reduction in gross income, on current rates of pay, over that period would be $38,882 which is still a significant financial penalty but more proportionate to the seriousness of the applicant's misconduct than that imposed on the applicant by the Order.

Orders

1. I make the following orders 1. The orders made by Acting Assistant Commissioner Whyte pursuant section 173(2) of the Police Act and served on Sergeant Troy Robbs on 4 September 2019 whereby Sergeant Robbs' rank was to be reduced to Senior Constable Level 6 and he was to be subject to a disciplinary transfer to Brisbane Waters Police District are revoked. 2. Sergeant Robbs is to be reduced in increment to Sergeant 3rd Year on the basis that he will progress by increments to Sergeant 9th Year over the period of six years from the date on which these orders take effect. 3. Sergeant Robbs is to be subject to a disciplinary transfer to the Brisbane Waters Police District or, at the discretion of the Commissioner of Police or his delegate, to another location within a commutable distance of 60 minutes or less from his current address. 4. These orders take effect on and from Monday 16 November 2020. John Murphy Commissioner

Amendments 30 October 2020 - Address removed from Paragraph 89(3). 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: 09 June 2022