Robbs v Commissioner of Police [2020] NSWIRComm 1074

Industrial Relations Commission New South Wales Medium Neutral Citation: Robbs v Commissioner of Police [2020] NSWIRComm 1074 Hearing dates: 5 August 2020. Written submissions received 13 and 17 August 2020. Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application allowed. Order revoked. Alternate orders made. Catchwords: POLICE – application for review of disciplinary order – allegations of sexual harassment admitted – serious misconduct – mitigating circumstances – reduction in rank and disciplinary transfer – application allowed Legislation Cited: Police Act 1990 Cases Cited: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Duncan v Commissioner of Police [2020] NSWIRComm 1011 Lawrance v Commissioner of Police (2010) 199 IR 139 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 Texts Cited: Nil Category: Principal judgment Parties: Troy Robbs (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Ms J Ellis (Applicant) Mr J Darams (Respondent)

Solicitors: Mr D Cabal, Carroll & O'Dea Lawyers (Applicant) Ms F Edwards, Sparke Helmore Lawyers (Respondent) File Number(s): 2019/00298137 Publication restriction: Nil

DECISION 1. On 4 September 2018, the applicant, Troy Robbs, was served with an order made pursuant to section 173(2) of the Police Act 1990 ("Order"). The substance of the Order was that the applicant was to be reduced in rank from Sergeant 9th Year to Senior Constable Level 6 and be subject to a disciplinary transfer from his role as supervisor in the radio studio at the Newcastle Radio Operations Centre ("Newcastle ROC") to the Brisbane Waters Police District. The immediate impact of the Order on the applicant will be a reduction in his annual salary from $124,994 to $106,937, a difference of $18,057 per year. 2. The Order was made by Acting Assistant Commissioner Scott Whyte, Acting Commander, Communications and Security Command. The Order was made following complaints about the applicant's conduct by Ms Melissa Parciany, an Administrative Support Officer in the Newcastle ROC and Ms Melanie Mitchell, a Communications Officer also in the Newcastle ROC. 3. There are references in the Order and in the respondent's evidence to a number of serious allegations by Ms Parciany and Ms Mitchell which the applicant denied and which were not sustained in the Order. I have ignored these references and excised them from the materials I have reproduced in these reasons for decision. 4. In the Order, Acting Assistant Commissioner Whyte set out the findings he had made against the applicant in the following terms: Allegation 1 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you engaged in inappropriate, unprofessional and disrespectful behaviour to Ms Parciany when: 1. Ms Parciany was standing in your office when she jokingly said 'You shall not pass'. You said in response 'I know a quick way to make you move'. Ms Parciany indicated that this made her feel like you might touch her in some way and she quickly moved and said 'I don't think it would be worth it, do you?' to which you responded 'You're right, $10,000 harassment suit'. Ms Parciany then said 'I wouldn't worry about a lawsuit but you would hurt, trust me'. You said 'It might be worth it' to which Ms Parciany responded 'I don't know about that, you'd have to explain to the boss why you are black and blue' (Incident 2); 2. Ms Parciany was wearing a top with a tiger printed on it and you came up behind her and whispered in her ear, 'Nice pussy' (Incident 3); 3. Ms Parciany mentioned one day that she was concerned about the length of a top she was wearing to which you asked if she was concerned about the top of it covering her 'vulva' (Incident 4); 4. two or three weeks prior to the meeting with Inspector Atterby and Chief Inspector Chaffey, Ms Parciany was wearing a blue and white striped top and you asked whether she was wearing a more padded bra as she looked 'bustier than usual' (Incident 5); and 5. you had made numerous remarks about Ms Parciany 'getting a good rogering' (Incident 6). Further, I also find, on the balance of probabilities although having regard to the seriousness of the allegation, that your conduct towards Ms Parciany constituted a pattern of sexually harassing behaviour, regardless of whether the nature of each individual action was objectively offensive, humiliating or intimidating when viewed on its own. In the circumstances, I conclude that your conduct was contrary to the Sex Discrimination Act 1984 (Cth), s 7 of the Police Act 1990, the Respectful Workplace Behaviours Policy Statement and Guidelines, the Workplace Equity Resolution Procedures and the NSW Police Force Code of Conduct and Ethics. ……………………… Allegation 2 I find, on the balance of probabilities, although having regard to the seriousness of the allegation, that you engaged in inappropriate, unprofessional and disrespectful behaviour to Ms Mitchell when: 1. you sent her text messages and chats containing comments along the lines of 'Just letting you know your arse looks hot today in those pants'. There were also instances of you walking past Ms Mitchell's desk and leaving a folded post-it note on the desk containing comments about her breasts and body, and you would then walk back past and take the note (Incident 7); 2. while working one night, Ms Mitchell's eye had become irritated (by what could have been OC spray residue) and she was washing it at a sink in the female bathroom. You came into the bathroom and assisted Ms Mitchell to wash her eye (with her consent). You then grabbed the face of Ms Mitchell and looked in her eyes telling her that she had 'the most beautiful skin' (Incident 8); and 3. while Ms Mitchell was working in the station area, you entered through the main door and said good morning, after which you said 'your tits look huge, why are you wearing a padded bra. I like small boobs, it's okay to embrace' (Incident 9). Further, I also find, on the balance of probabilities although having regard to the seriousness of the allegation that your conduct towards Ms Mitchell constituted a pattern of sexually harassing behaviour, regardless of whether the nature of each individual action was objectively offensive, humiliating or intimidating when viewed on its own. In the circumstances, I conclude that your conduct was contrary to the Sex Discrimination Act 1984 (Cth), s 7 of the Police Act 1990, the Respectful Workplace Behaviours Policy Statement and Guidelines, the Workplace Equity Resolution Procedures and Points 1, 3, 4 and 6 of the NSW Police Force Code of Conduct and Ethics as set out above in relation to Allegation 1. 1. The complaint by Ms Parciany which formed the basis of "Incident 1" was not sustained by Acting Assistant Commissioner Whyte and I don't propose to deal with it further in these reasons for decision. 2. The Order was made following an investigation into the complainants' allegations and the service upon the applicant on 17 June 2019 of a notice pursuant to section 173(5) of the Police Act which set out particulars of the allegations of misconduct against the applicant ("Notice"). The Notice was signed by Acting Superintendent Patrick Stafford. 3. The applicant responded in writing to the Notice on 4 July 2019 ("Response"). Acting Assistant Commissioner Whyte considered the Response before issuing the Order. 4. The applicant has applied pursuant to section 174(1) of the Police Act for a review of the Order ("Application"). This decision determines the Application.