McIntyre v Commissioner of Police [2021] NSWIRComm 1093

Industrial Relations Commission New South Wales Medium Neutral Citation: McIntyre v Commissioner of Police [2021] NSWIRComm 1093 Hearing dates: 1 December 2021 Decision date: 01 December 2021 Jurisdiction: Industrial Relations Commission Before: Acting Industrial Registrar Hoskinson Decision: (1) Categories 1 and 10 to be complied with by the respondent; (2) I will adjourn this matter to 15 December at 9.15am. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – motion to set aside summons to produce Legislation Cited: Police Act 1990 (NSW) Cases Cited: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Mr Douglas McIntyre (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr M. Watts (Respondent)

Solicitors: Kingston Reid (Respondent) File Number(s): 2021/133113

REVISED EXTEMPORE DECISION 1. This is a notice of motion which was filed on 13 October 2021. The respondent moves the Commission for an order setting aside part of summons to produce issued at the applicant's request to the respondent on 27 September 2021. 2. Mr McIntyre, who is an unrepresented person, required and obtained leave to issue this summons. The categories are quite extensive and some information is added at the end of each category, to presumably explain the relevance of those categories. I will not set them out in full, and will only mention the relevant parts as required for the determination of this motion.

Background 1. The substantive matter relates to the dismissal of Mr McIntyre as a police officer and was brought by Mr McIntyre on 11 May 2021 under s 181E of the Police Act 1990 (NSW). In the "relevant particulars" part of the application, the applicant placed five particulars. The first three particulars deny that the certain facts and circumstances addressed in the statement of reasons by Commissioner of Police, justify the respondent's loss of confidence in Mr McIntyre's suitability to remain a police officer and justify the adverse findings regarding the integrity of Mr McIntyre. 2. The fourth category states that the respondent's findings in relation to the applicant's discharge of his duties do not give sufficient weight to the pressure of the workloads placed upon him in the performance of those duties, nor do they give sufficient weight to the effect that health issues had upon the performance of those duties. 3. And category 5 just simply says the respondent's decision to remove the application from NSW Police Force pursuant to s 181D(1) of the Police Act 1990 (NSW) should be set aside and he should be reinstated to his former position. 4. In the assessment of what is required under this application, regard has to be had to the relatively narrow approach that the Commission will take in relation to determining the matter. I will return to the approach later in these reasons. I will address the categories of the summons in more detail first. 5. The respondent, Commissioner of Police, raises certain grounds upon which he says the summons should be set aside. I should state that the respondent agrees to produce documents under paragraph (or category) 1 of the summons, therefore that category does not need to be considered. Categories 2 to 12, however, are in dispute. The broad contention by Commissioner of Police is that the categories of the documents which are required to be produced are broad and oppressive, akin to a fishing expedition and they are not even apparently relevant to the issues in dispute.