Industrial Relations Commission New South Wales Medium Neutral Citation: Mounce-Stephens v Commissioner of Police [2022] NSWIRComm 1008 Hearing dates: 8, 9 and 10 November 2021 Date of orders: 25 February 2022 Decision date: 25 February 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: POLICE – removal of police officer – review of removal order – allegations of sexual harassment of fellow police officer – removal not harsh, unreasonable or unjust – application dismissed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Industrial Relations Act 1996 (NSW) Police Act 1990 (NSW) Sex Discrimination Act 1986 (Cth) Work Health and Safety Act 2011 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Cassel v Commissioner of Police [2003] NSWIRComm 73 Guru v Commissioner of Police [2019] NSWIRComm 1080 Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; 382 ALR 231 Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 Texts Cited: NSW Police Force Code of Conduct and Ethics Respectful Workplace Behaviours Policy Statement Respectful Workplace Behaviours Guidelines. Category: Principal judgment Parties: Phillip Mounce-Stephens (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Ms P Lowson (Applicant) Mr J Darams (Respondent) Solicitors: Ms J Whalebone, Police Association of NSW (Applicant) Ms K Plowman, Partner/Ms J Lennon, Senior Associate, Minter Ellison (Respondent) File Number(s): 2021/00073299 Publication restriction: See [4] decision 1. The applicant, Phillip Mounce-Stephens, was removed from his position as a Senior Constable with the NSW Police Force (NSWPF) by the respondent, the Commissioner of Police, by an order dated 17 February 2021 made pursuant ss 181D(1) of the Police Act 1990 (NSW) (Order). The Order was preceded by a notice by the respondent pursuant to ss 181D(3)(a) of the Police Act and served on the applicant on 7 September 2020 (Notice). The Notice contained a number of allegations of misconduct by the applicant amounting to sexual harassment of a fellow police officer at Orange Police Station on 17 August 2019. The applicant provided the respondent with a written response to the Notice dated 8 October 2020 (Response). Attached to the Response was a number of character references, including references from a number of serving police officers, attesting to the applicant's good character. 2. The Order was accompanied by the respondent's written reasons for making the Order (Reasons). The Reasons contained findings by the respondent that the applicant had engaged in unprofessional and inappropriate behaviour towards a colleague; that the applicant's conduct amounted to unwelcome conduct of a sexual nature; and that the applicant sexually harassed the police officer concerned who subsequently complained about the applicant's behaviour. 3. The applicant has made an application to this Commission pursuant to s 181E of the Police Act for review of the Order (Application). 4. At the request of the respondent, on 10 November 2021, after the hearing of the Application had concluded, I made the following orders pursuant to s 164A of the Industrial Relations Act 1996 (NSW) (IR Act): 1. There be no publication of the name or any other material that identifies the person who complained about the applicant's alleged conduct on 17 August 2019; and 2. To the extent it is necessary to refer to the person referred to in order 1 of these orders, they are to be referred to as "Complainant". 1. In 2019, the applicant and Complainant were both Senior Constables stationed at Orange Police Station. The removal of the applicant from the NSWPF followed certain exchanges between the applicant and Complainant which occurred at the police station on 17 August 2019. 2. The Reasons contained the following with respect to findings made by the respondent against the applicant in relation to his behaviour on 17 August 2019 whist on duty at Orange Police Station: … I find that, after Complainant refused your requests to "go out with" you or "have a coffee" with you, you: 1. continued to make similar invitations; 2. asked her if you could message her on her private phone number and, when she said "No", you said "you can message me anytime"; and 3. said to Complainant, in reference to an abandoned mattress in the police station: "I should trip you over so you fall onto this mattress". 1. According to the respondent, the conduct of the applicant was contrary to the Police Act, the Anti-Discrimination Act 1977 (NSW), the Work Health and Safety Act 2011 (NSW), the NSW Police Force Code of Conduct and Ethics, the Respectful Workplace Behaviours Policy Statement and the Respectful Workplace Behaviours Guidelines. Background 1. The applicant commenced training at the NSW Police Academy on 17 August 1997. He attested on 13 February 1998 with his first posting being to Burwood Police Station. He remained at Burwood Police Station until 19 August 2001, when he commenced duty with the Endeavour Region Highway Patrol at Five Dock Police Station. 2. On 13 February 2003, the applicant was promoted to the rank of Senior Constable whilst attached to the Eastwood Highway Patrol. On 19 October 2005, the applicant was promoted to the rank of Leading Senior Constable whilst stationed at Broken Hill Police Station. On 25 March 2007, the applicant transferred to Bathurst Police Station. 3. Between 2000 and 2016 the applicant received a number of awards and commendations for good police work. 4. On 25 December 2010, Christmas Day, the applicant was the driver of a police vehicle on an urgent duty response when he was involved in a fatal motor vehicle collision. The driver of the second vehicle did not survive despite the best efforts of the applicant, civilians who were present at the scene and, later, NSW Ambulance Officers, to revive him. The applicant had some time off work in 2011 and was subsequently diagnosed with post-traumatic stress disorder which was recognised as a workers compensation injury. The applicant was subsequently involved in a number of other traumatic situations whilst on duty. 5. On 13 February 2012, the applicant was served with a Commander's Warning Notice after he was absent from his nominated address without authority whilst on sick leave and failed to serve a brief of evidence in a matter as ordered by the court. 6. On 18 November 2012, the applicant was promoted to the rank of Sergeant and commenced duties at Orange Police Station. 7. Other aspects of the applicant's disciplinary history were set out in the respondent's Reasons in the following terms: P1700533 - unauthorised absence Region Commander's Warning Notice On 29 March 2017, you were served a Region Commander's Warning Notice and placed on a conduct management plan when, while performing duties as the custody manager, you: • failed to provide supervision to a prisoner in custody; • failed to update the prisoner's custody management records to indicate you had handed over supervision of the prisoner; and • without permission, made a 106km round trip from Canobolas LAC to Bathurst in an unmarked police vehicle (without completing a vehicle diary entry) in your police uniform (but without your arms and appointments) to deliver your house keys to your girlfriend. Reinforcement of Code of Conduct and Ethics As a result of P1700533, on 29 March 2017, you: • were provided the NSW Police Force Standards of Professional Conduct booklet which includes a copy of the NSW Police Force Statement of Values and Code of Conduct and Ethics; and • signed an acknowledgement that you: - had "read and understood the NSW Police Force Code of Conduct and Ethics and the supporting information that [was] provided with it in the Standards of Professional Conduct booklet"; and - understood that, if you failed to comply with the Code of Conduct and Ethics. you may be subject to management action. 1. Subsequently, a sexual harassment matter (LM1702371) led to the demotion of the applicant from Sergeant to Senior Constable Level 6 following an allegation that the applicant, on 23 June 2017, said to a female police officer who was about to convey a doctor to Cowra: …well if he's not a gynaecologist he'll be a gynaecologist by the time he gets to Cowra with you. 1. The applicant admitted making this statement to the female officer involved. 2. With respect to this matter, the Reasons contained the following: LMl1702371 - sexual harassment Reduction in Rank and Region Commander's Warning Notice On 15 August 2018, pursuant to an order made under s 173(2) of the Police Act 1990, you were reduced in rank from Sergeant to Senior Constable Level 6 and received a Region Commander's Warning Notice (the Warning Notice) after it was found that you had sexually harassed a junior officer and interfered, or at least attempted to interfere, with the subsequent complaint investigation. In the Warning Notice, you were warned that "should you engage in similar conduct in the future you will be considered for removal under section 181D of the Police Act 1990". In your Show Cause Response, you say you have attempted to modify your behaviour since this matter. Conduct Management Plan Reinforcement of Code of Conduct and Ethics and the Guidelines On 17 December 2018, you were placed on a six month Conduct Management Plan (CMP) for the findings in LMl1702371. As part of Strategy 2 of the CMP: • you were required to undertake one on one equity training with the Workplace Relations Equity Unit; and • the NSWPF Code of Conduct and Ethics and the Guidelines were reinforced with you. The intended outcome of Strategy 2 was that you would: 1. display a clear understanding of your obligations under the Code of Conduct and the Guidelines; and 2. have greater awareness of the consequences for continued non-compliance with the Code of Conduct and the Guidelines. On 18 December 2018, you acknowledged receipt of a copy of the CMP, its contents and requirements. On 26 July 2019, Acting Superintendent David Harvey wrote to you advising that: 1. the Complaints Management Team had recommended to finalise your CMP; and 2. "if your work performance falters again"', further management action, including removal under s 181D of the Police Act 1990, will be considered. You acknowledged receiving this letter on 30 July 2019. Your Show Cause Response In your Show Cause Response, you say: • you have never received any complaints for your off-duty behaviour despite the fact that you believe officers who work and reside in the same town are "more identifiable by the community"; • prior to December 2010, your complaints history was "relatively minor. especially given that [you] had almost 13 years of service"; and • you have a "good disciplinary history when viewed as a whole in the context of [your] 23 years of employment in the NSWPF" 1. The respondent's Reasons then dealt with events of 17 August 2019 which, ultimately, led to the removal of the applicant from the NSWPF. 17 August 2019 allegations 1. The allegations against the applicant of sexual harassment by him of Complainant on 17 August 2019, were initially investigated by Chief Inspector Scott Rayner, Central West Police District. 2. The allegations were framed by Chief Inspector Rayner in the following terms: During the AM on 17 August 2019 at the Orange Police Station, it is alleged that the subject officer made a number of unsolicited comments to Complainant, received by her as being of a sexual nature, including repeatedly asking her to 'go out with him" and asking permission to be able to text Complainant in a private capacity. It is also alleged that the subject officer made a further unsolicited comment to Complainant later on the same day whilst handling a mattress within the Orange Police Station. The comment was alleged to be words to the effect of "I should trip you over onto this mattress" which was construed by the recipient to be inappropriate and sexual in nature. 1. During the investigation, Chief Inspector Rayner was provided with a number of statements from a number of police officers who were present on duty at Orange Police Station on 17 August 2019, some of whom were also interviewed, including Complainant, Senior Constable Benjamin Williams, Constable Dane Monks and Senior Constable Christian Macrea, as well as Sergeant Brian Duffey who had a conversation with Complainant at the station on 26 August 2019. Chief Inspector Rayner also conducted an interview with the applicant on 21 January 2020 which was recorded and a transcript produced. 2. During the applicant's interview with Chief Inspector Rayner, the following exchanges occurred: Q. I have received information that during the shift on the 17 August 2019 you asked Complainant to 'go out with you' on several occasions throughout the shift. ls that correct? A. I invited her out for a coffee, I believe were my words. I'm not sure that it was several times. Q. How many times did you ask Complainant out? A. I believe I would have only asked her the once, directly. Q. What do you mean by directly? A. Put the actual question to her, "do you want to go and have a coffee", Q. Did you ask her indirectly? A. I might have tested the water, floated the idea. Judged If she was receptive to the idea. There appeared to be banter between Complainant, Senior Constable Bird and myself during the shift. O. How many times did you ask her out indirectly? A. At that stage I was very mindful that I could only ask her once, due to the policy. Maybe twice. Q. What was her response to the direct request from you? A. Um I don't recall exactly but obviously it was a no. So, I never raised it again. Q. What was her response to the indirect request from you? A. That was all part of that banter, she was jovial and giving it back, and that made me think that she was somewhat receptive to the idea. Q. Did you ask her out directly as you described prior to the two indirect occasions? A. I tested the water first and then I asked her directly. Q. What was her response on each occasion? A. Like l said when I was testing the waters so to speak she seemed receptive. We were laughing and being friendly. I got no indication that she was uncomfortable. When I asked her directly I don't recall her reaction but obviously it was in the negative and I never raised it again after that. Q. How did you know her response was in the negative? A. Cause we never want out for coffee. … Q. Do you recall the words you used when asking Complainant out? A. No, I don't, Q. Why is that? A. Passage of time. Nerves. She said no so let it go. Q. Did she refute your offer to 'go out' with her? A. Yes. Q. How many times did she refute your offer? A. l believe once. … Q. Did you consider the possibility that Complainant would be offended by your requests to 'go out' with her? A. I don't see why she would be offended. Q. Did you continue to ask her out after she initially declined? A. Definitely not. Q. Where did you intend to take Complainant out for coffee? A. Any coffee shop in Orange. I'm not really a coffee drinker myself l would have had a shake or something like that so I would have asked her where she likes to drink her coffee. Q. Did you ask Complainant for her phone number? A. No. I don't believe so, no. Q. Did you ask Complainant whether you could text message her? A. I don't believe so. Q. Did you then inform her that she could text message you anytime? A. I don't believe so. But If she wanted to, she could of. We're two adults. … Q. I am now going to ask you some questions about a separate allegation that is alleged to have occurred on the same day inside the Orange Police Station. Do you understand? A. Yes. Q. Did you have cause to handle a mattress within the Orange Police Station on that day? A. I know I have picked up a mattress off the street and brought it back to Orange Station but I have absolutely no idea about the dates. I had forgotten all about it. … Q. I have received information that whilst you were handling the mattress near the back of the station area, Complainant walked passed that area. Is that correct? A. I don't recall. Q. I have received information that as Complainant walked passed you and the mattress, you said to her words to the effect of" I should trip you over, so you fall onto this mattress". Did you say words to this effect? A. I don't believe that is something I would have said no, but I don't recall. Q. Why do you say you don't believe it is something that you would have said? A. I'm trying to mindful of what I say to people. Talking to people in the station as little as possible. Q. Why are mindful of what you say? A. Because of previous issues, Q. This alleged comment was received as being sexual in nature in that you articulated your wish to throw Complainant down onto a mattress. What do you say to that? A. Definitely not. I don't believe I said it and it definitely would not have been in a sexual nature. I don't believe it would be something I would have said. Q. How are you definite that it would not be sexual in nature or intent? A. Cause I don't need any more issues. l don't even believe I would have said it in the first place. 1. In the Investigation Report, which was signed off by Chief Inspector Rayner on 22 January 2020, the allegations of sexual harassment by the applicant against Complainant were sustained. 2. The applicant provided a lengthy written response to the Investigation Report on 5 March 2020. That response contained the following: WHAT I SAY ABOUT THE GROUNDS IN THE REPORT 52. There is only one allegation relied upon and referred to in the Report arising from IAPro file number MIR2019-1456, and it is as follows: Issue 1: Sexual Misconduct/Sexual Harassment (Unwanted Sexual Advances) "… During the AM shift on 17 August 2019 at the Orange Police Station, it is alleged that the subject officer made a number of unsolicited comments to Complainant, received by her as being of a sexual nature, including repeatedly asking her to 'go out with him' and asking permission to be able to text Complainant in a private capacity. It is also alleged that the subject officer made a further unsolicited comment to Complainant later on this same day whilst handling a mattress within the Orange Police Station. The comment was alleged to be words to the effect of 'I should trip you over onto this mattress' which was construed by the recipient to be inappropriate and sexual in nature …". This conduct is alleged to be contrary to the NSWPF Code of Conduct and Ethics (Points 3 and 4), the NSWPF Respectful Workplace Behaviours Policy Statement and the NSWPF Respectful Workplace Behaviours Guidelines. 53. I partially admit this allegation to the extent that I admit I asked my colleague, Complainant out for a coffee. 54. However, I deny the balance of the allegation insofar as I deny that there was any sexual intent or that this conduct constituted sexual harassment, and I deny that I made any comment about a mattress. 55. I do wish to acknowledge my actions, however, at the same time I do not believe I was disrespectful to my colleague or that I engaged in conduct that could properly be construed as sexual harassment. 55. I sincerely apologise if I caused Complainant any offence, that was never my intention. … 62. I refute the allegation I made a comment similar to "I should trip you over on to this mattress" at all. Following my previous disciplinary matter in 2017, I have been extremely mindful what I say and do both at work and in my private life. I have isolated myself from my colleagues as much as possible and routinely request to work in the charge room area of Orange Police Station where I can be monitored via CCTV. I also have minimal interaction with my colleagues in this area. This situation has been discussed with a counsellor and he indicated it was not healthy. The counsellor suggested that I should interact with my colleagues more, however I question the soundness of that advice, given the way in which I was treated and investigated by the NSWPF for the previous matter in 2017. I have also often walked away from conversations that appear to be heading in an inappropriate direction. I do not attend team functions and do not get myself involved in team social media discussions or even view the conversations. 1. The Notice setting out the allegations of sexual harassment by the applicant against Complainant on 17 August 2019 was served on the applicant on 7 September 2020. 2. In his Response to the Notice dated 8 October 2020, the applicant repeated and relied upon his written response to the Investigation Report. In addition, under the heading "MITIGATION FACTORS Social and Medical Issues", the applicant stated: 42. I am socially awkward and find it difficult to interact socially with people. I have always struggled to make and keep friends. Traditionally, I have avoided work functions, such as Christmas parties and the like as I feel that I do not fit in, this is largely due to the fact that I do not consume alcohol. My asking Complainant for coffee was an attempt at friendship. As I stated in my record of interview "my intention was to get to know her better". Complainant and I mutually follow each other on Instagram, we did so before this incident and continue to do so, but we do not communicate with each other via social media. … 49. Whilst I do not have a formal diagnosis of ASD (Autism Spectrum Disorder), as I stated, I am aware that I am different and attempt to manage this in the best way I know how. I am very mindful of being socially awkward. The fact that I do not consume alcohol at all, does not help me in social settings either. 50. I am aware that I sometime misread visual and verbal communication cues. I do attempt to remain vigilant to this fact. I also find myself avoiding social situations to avoid the awkwardness or conflict. I rarely attend work social gatherings as I feel out of place. There have also been many occasions where I have not been invited to many team functions for unknown reasons. In my 23 years as a police officer, I may have attended about 10 social functions. When transferring from Burwood police station in 2001, I was reluctant to even attend a send-off for several officers, one being myself. 51. Being somewhat of a loner, I can sometimes be overzealous when someone extends to me, what I interpret to be friendship. … 55. Whilst I acknowledge that I have no formal diagnosis of ASD, there is strong evidence to suggest that I have undiagnosed ASD. Whilst I believe this does not impede me from doing my job, in fact, I believe it made me a better Highway Patrol practitioner due to the clear rules, I do believe that it may go some way to explaining my differences in communication styles. This can affect how I interact with others and also how I am perceived. 1. Despite the representations made by the applicant in his Response, he was removed from the NSWPF by the respondent's Order dated 17 February 2021. The respondent's Reasons contained the following: As set out in my Notice, I am very concerned by your conduct set out above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force. You have an obligation to conduct yourself in such a way that upholds the good reputation of the NSW Police Force. Your conduct has fallen well short of what is expected of you. You are a Senior Constable with approximately 23 years' experience within the NSW Police Force. Given your rank and length of service, I am entitled to expect you would be well aware of and comply with the Code of Conduct and Ethics and all NSW Police Force policies and procedures. This expectation is heightened by the considerable training you have received regarding respectful workplace behaviour. Not only have you undertaken the mandatory training required by all members of the NSW Police Force regarding respectful workplace behaviour, you have also received remedial one-on-one training with the Workplace Relations and Equity Unit on: - how to assess whether conduct may be offensive in the workplace; - what constitutes sexual harassment; and - the Policy Statement, Guidelines and the Code of Conduct. Furthermore, you have also previously been disciplined for engaging in behaviour amounting to sexual harassment and been provided with mentoring through conduct management plans in an effort to correct your conduct. Given your rank, length of service and the efforts that have been made to curb your behaviour, I am extremely disappointed that you have again engaged in behaviour towards a colleague in the workplace that amounts to sexual harassment. While I acknowledge you continue to say you ceased asking Complainant out on a date or for coffee after she refused your invitation, did not request to message Complainant and did not make the Mattress Comment, I have also taken into account your previous behaviour, and that [Complainant] made contemporaneous records of your conduct on 17 August 2019 some of which is corroborated by independent witnesses. In making my decision, I have given careful consideration to your assertion in your Show Cause Response that there is no evidence that asking Complainant out for coffee constitutes sexual harassment. However, throughout your various responses, you have admitted to asking Complainant out for coffee three times during one shift and that your intention was to pursue a relationship with her. Complainant's evidence is that these requests were unwelcome and declined on each occasion. I am satisfied that, by repeatedly asking Complainant out for coffee when she had previously declined a similar request, you engaged in unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated Complainant would be ''offended, humiliated, or intimidated". As a result, I consider your conduct amounts to sexual harassment. In fact, as you should be well aware, the Guidelines specifically state "repeated unwanted requests to go out on dates when the person has refused similar invitations before" is an example of sexual harassment. I find your insistence to the contrary demonstrates a concerning lack of insight into your own behaviour. I have also considered your claims that Complainant was "laughing and being friendly" and was "joking just as much" as you. However, I do not accept these claims having regard to Complainant's evidence to the contrary, and Constable Monks' evidence that he felt the need to check on Complainant due to the frequency of your comments and she informed him that she was "very uncomfortable" but, otherwise, "alright''. I expect all sworn officers to treat everyone with courtesy and respect at all times. Your conduct. and subsequent responses, demonstrate a lack of understanding of the NSW Police Force's expectations regarding the high standards of behaviour that sworn officers are required to achieve and maintain. These matters go to the very heart of your personal judgement and integrity. In making my decision, I have considered your submission in your Show Cause Response that, "when viewed as a whole in the context of [your] 23 years of employment", you have a good disciplinary history. I disagree. You have received three Warning Notices, including two from a Region Commander, and a reduction in rank. The requirement to comply with the Code of Conduct and Ethics has repeatedly been reinforced with you. You have clearly failed to adjust your behaviour and heed the warnings you have been given. ln considering this matter, I have taken into account the fact that your conduct occurred within: 1. 12 months of receiving a reduction in rank and Region Commander's Warning Notice for sexually harassing another colleague and interfering, or at least attempting to interfere, with the subsequent complaint investigation; 2. six months of you undertaking one on one training on respectful workplace behaviour; 3. two months of you completing Respectful and Inclusive Workplaces training; and 4. 18 days after Acting Superintendent Harvey advised you that your CMP had been finalised but management action may be considered "if your work performance falters again". Despite being warned and given extra training and mentoring, you have continued to show poor judgment in your interpersonal interactions in the workplace. Your inability or unwillingness to adjust your behaviour has led me to conclude that you do not truly understand, or are incapable of understanding, what is acceptable and respectful workplace behaviour. In fact, even after being provided one-on-one training on respectful workplace behaviour, you admitted in your Directed Interview that you are only "partially" familiar with the content of the Guidelines. You state in your Show Cause Response that you have "attempted" to modify your behaviour since receiving a reduction in your rank yet you still fail to recognise that your conduct towards Complainant was completely unacceptable and inappropriate. I am disappointed by your continual refusal to take any responsibility for your behaviour. You also have failed to recognise the negative effect your conduct has had on your colleagues, especially Complainant, and have provided intentionally vague and, at times, contradictory information regarding what occurred on 17 August 2019. In an effort to deflect attention away from your own behaviour, you have also attempted to portray the witnesses in a poor light by suggesting that, if they thought your conduct was so bad, they should have reported it and intervened. You have now raised in your Show Cause Response that you may have an Autism Spectrum Disorder and seek to rely on this possibility to justify your behaviour. However, you accept you have no formal diagnosis and you have not provided any medical evidence in support. I am not persuaded that any medical condition caused you to conduct yourself in the manner set out above. I find your apology in your Show Cause Response disingenuous given your attempt to blame Complainant for your conduct. After apologising to Complainant, you state the matter was simply due to a "communication breakdown" which was "not assisted by [your] Autism Spectrum Disorder tendencies" and that it could have been resolved quickly if both Complainant and you could respect each other's differences and were approachable. You have failed to show any genuine remorse over your conduct. Your assertion that you have not engaged in serious misconduct shows you lack insight into the seriousness of your conduct and your responsibilities under WHS legislation. Your repeated behaviour has had a detrimental impact on your colleagues and resulted in your colleagues expressing serious reservations about working with you. I have considered your submissions regarding your financial position and your difficult personal life. I have also considered the references you attached to your Show Cause Response. In this regard, I acknowledge the positive contributions a number of your referees say you have made to the community and NSW Police Legacy. I accept that your referees believe you are a well­ respected member of the community. However, I have a duty to provide a safe workplace for all workers engaged by the NSWPF. The fact you are unable or unwilling to comply with your obligations has caused me to conclude there is a real risk you will repeat this behaviour in future. I cannot allow this to occur. I do not agree with your submission that the "public interest would not be served" by removing an officer with 23 years' service who has '"a lot more to continue to offer''. On the contrary, I believe it is in the public interest to provide a workplace free from sexual harassment. Overall, given the seriousness of your conduct I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer. Put simply, your actions demonstrate that you lack the necessary integrity to be an officer in the NSW Police Force and I cannot be satisfied that you would not engage in similar conduct in the future. I expect and the law demands that New South Wales police officers will always uphold their solemn Oath of Office. This requires all New South Wales police officers to act professionally at all times, with ethics and integrity, and in accordance with the law. This is our sworn duty, and you have failed in this regard. I want you to clearly understand, and I cannot stress too strongly, that I expect an appropriate standard of behaviour from all police officers and I expect them to adhere to the expectations of ethical and professional conduct, whether it is on or off duty. You have clearly breached the New South Wales Police Code of Conduct and Ethics. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer. Case for the applicant 1. The applicant swore an affidavit in the proceedings in which he traversed his career in the NSWPF commencing in 1997, as well his personal life over that period. 2. The applicant gave the following evidence with respect to the sexual harassment matter which led to his reduction in 2018 from Sergeant to Senior Constable Level 6: LMI1702371 - Sexual Harassment Reduction in Rank and Region Commander's Warning Notice - 15 August 2018 36. This matter arose from a finding that I sexually harassed a junior officer, and interfered, or at least attempted to interfere, with the subsequent complaint investigation. I was the subject of a directed interview on 18 July 2017… 37. On 19 September 20l7, I was served with an Investigator's Report and supporting evidence. 38. I decided not to submit a response to the Investigator's Report... 39. On 4 April 2018, I was served with a Notice pursuant to section 173(2) of the Police Act 1990 (NSW) ('the Police Act') ('the Section 173 Notice'). 40. I responded to the Section 173 Notice on 14 May 2018… 41. On 13 August 2018, I was served with an Order under section 173(2) of the Police Act which proposed to impose a reduction in rank from Sergeant 6th Year to Senior Constable Level 6 and a disciplinary transfer from Orange Police Station, Central West Police District to Dubbo Police Station, Orana-Mid West Police District. 42. On 31 August 2018, the solicitors representing me in that matter, Mr Paul Walter of Walter Madden Jenkins filed an Application for a Review of an Order under section 173(2) of the Police Act in the Commission… 43. My main concern was that I did not want to move from Bathurst to Dubbo, as I had shared care of my three children who all went to school in Bathurst. If I had moved to Dubbo, I would not have been able to comply with Family Law orders regarding the children living with me six days per fortnight; more importantly, I would not have been able to spend time with them as their father. While I would have preferred to move to a different police station rather than return to Orange in the demoted position of senior constable - for example, Lithgow or Bathurst - the respondent only offered me the options of Dubbo or remaining at Orange. The matter settled on terms to the effect that I would accept the demotion from Sergeant 6th Year to Senior Constable Level 6 but remain at Orange Police Station. The demotion saw my loaded salary significantly reduced by 9 increments from $115,169 to $104,329, amounting to a total loss of loaded salary of $10,840 per annum. 44. On 25 October 2018, Terms of Settlement and a Notice of Discontinuance were filed… 45. Although I settled the matter, I continued to deny that I had interfered, or attempted to interfere, in an investigation. 46. Following my demotion to Senior Constable in 2018, I continued to perform my duties to a high standard. This is evident in remarks made to me by the Officer in Charge of Orange Police Station, Chief Inspector Atkins, in or about December 20 l 9. Chief Inspector Atkins' remarks were made after he reviewed body worn video footage of me dealing with a group of youths in Robinson Park, Orange. Chief Inspector Atkins praised my professionalism. 47. Further, following my demotion to Senior Constable, I maintained a positive work attitude and strived to improve and learn from the situation. I constantly sought feedback from my team leaders. I was always informed I was performing to the level expected. In the months prior to and following my demotion, I was subject to written reviews. I was never made aware of any adverse issues and again I was informed I was performing at the level expected. On one occasion, Inspector Linda Bradbury (at the time attached to Orange Police Station) informed me that my record keeping in the custody management system was the best she had ever seen. 48. When I returned to Orange Police Station after I had been demoted to Senior Constable, there were no discussions or support from my senior officers other than mentioning the availability of the Employee Assistance Program to me. When I returned to the station, I felt humiliated, some officers continued to address me as Sergeant, and this was like a kick in the guts and rubbing salt into the wound. I felt isolated, targeted and like I was being constantly watched, I started to question myself more about who I was as a person, and it affected my confidence levels. 49. As part of the findings in LMI1702371, I was placed on a six-month CMP. 50. I successfully completed the CMP with no issues, and it was finalised on 26 July 2019. 1. With respect to the matters which led to the applicant's removal from the NSWPF and to this Application, the applicant's affidavit contained the following: The Events of Saturday, 17 August 2019 at Orange Police Station 51. On Saturday, 17 August 20 I 9, I was rostered on duty with Probationary Constable ('PC') Dane Norman Monks to work in police car OG 16. Records made in my official police notebook indicate I actually worked with PC Benjamin Kennedy and that is what I recall occurring. Our duties for the shift were performing general duties which included such activities as, but not limited to, responding to calls for assistance, random breath testing, random roadside drug testing, paperwork, mobile general patrols, proactive policing, foot patrols, collecting located property and the like. My official police notebook indicates I arrested a person after they returned a positive roadside drug test. … 54. During the shift, PC Kennedy and I received a call over the police radio to respond to a job involving a mattress, which had been found by a member of the public, in the middle of the road in Orange. I cannot recall the exact location; however, I recall it was only a short drive from the police station and possibly near Cook Park. 55. PC Kennedy and I attended the location of the found mattress in the police vehicle. Upon arrival at the location, we had a short conversation with a member of the public before placing the mattress into the caged section of the police vehicle. PC Kennedy and I returned to Orange Police Station before we both carried the mattress inside the police station. We placed the mattress near the exhibits office. Either PC Kennedy or I completed the relevant paperwork in relation to the found mattress. 56. As PC Kennedy and I walked through the police station with the mattress, I was met with several belittling comments asking why we had returned the mattress to the police station. 57. During the course of the shift, in a quieter period, I found myself engaged in a group conversation. The conversation occurred in the area where the station officer would sit. To the best I can recall, Senior Constable ('SC') Christian Macrae, SC Benjamin Williams and Complainant were all involved in the conversation. Senior Constable Macrae was the shift supervisor at the time. 58. I do not recall the exact nature of the conversation; however, I do recall all present taking part and there was the usual banter and jovial talk that would often take place in the police station. During the conversation, I invited Complainant if she would like to have a coffee with me. I cannot recall the exact words I used. I do not recall Complainant's response to this offer, but I knew that she had not agreed to have coffee with me. The group chat came to an end, and I do not recall having any further interaction with Complainant during that shift. … 61. I continue to rely on my submissions in my Response to the Investigator's Report and my Response to the Section 181D Notice in relation to my response to the allegation that I sexually harassed Complainant. 62. I have since been made aware that Complainant did not want to work one on one with me on 23 December 2019. However, at the time I was not aware that she had any issues with me or felt that way. I had continued to work shifts with her and our interactions at work between August and December 2019 had not changed from how they had always been. She also continued to "follow" me on the social media platform, Instagram, and I followed her on Instagram during this period too. 1. The applicant then referred to the interview between himself and Chief Inspector Rayner on 21 January 2020; to his response of 5 March 2020 to the Investigation Report; and to his Response to the Notice (at [22], [24] and [26] above). Rose-Marie van Raad 1. The applicant relied upon evidence given on affidavit by Rose-Marie van Raad, a Consultant to Schools with the Catholic Education Office in Bathurst. Ms van Raad deposed that she had known the applicant for approximately five years. They are part of the same local running and Park Run community in the Bathurst area. 2. Annexed to Ms van Raad's affidavit was a character reference which she had provided to the applicant to use as part of his response to the Notice. In that reference, Ms van Raad commented on the applicant's general good character and then stated: I truly believe that Phillip Mounce-Stephens meant no harm to Complainant and indicated to me that he believed the banter was both ways, and that he ceased particular actions when Complainant indicated her standpoint. I have never known him to cross the boundary with a female in this way, and truly believe it is out of character. 1. Ms van Raad was not required for cross-examination. Dr Peter Anderson 1. The applicant also relied upon an affidavit sworn by Dr Peter Anderson, psychiatrist. Annexed to Dr Anderson's affidavit was a medical report dated 21 July 2021 prepared by him at the request of Jillian Whalebone, In-House Counsel of the Police Association of NSW. 2. In his report, Dr Anderson recounted the applicant's background and history of psychological and emotional symptoms or difficulty, including a number of traumatic incidents to which the applicant had been exposed during his career as a serving police officer. 3. In relation to allegation of sexual harassment of Complainant by the applicant, Dr Anderson's report contained the following: He asked the colleague for a cup of coffee, that is for a date. This was declined. He says there was a further allegation that he made a comment about a mattress. He is adamant that he did not make the comment. He says "I was being so careful". 1. Dr Anderson further stated: It appears to be the case that your client (the applicant) has difficulty with subtle social cues, and has difficulty reading the reactions of others. His account is that he cannot distinguish verbal behaviour found offensive from verbal behaviour not found offensive. 1. Dr Anderson diagnosed the applicant with "mild Autism Spectrum Disorder". His report contained the following question and answer: Any aspect of Mr Mounce-Stephens' personality, or any diagnosed condition (including but not limited to Posttraumatic Stress Disorder and/or Autism Spectrum Disorder) that might be relevant to Mr Mounce-Stephens' conduct at work in the period 2016 to 2019, including in particular his interactions with colleagues that underlay the 2018 and 2019 disciplinary actions Your client was not good at interacting with colleagues anywhere, primary school colleagues, secondary school colleagues, police colleagues. He has difficulty in his reading of subtle social cues. He was perceived as different by others. His mild Autism Spectrum Disorder is relevant to his conduct at work in the period 2016 to 2019, including in particular his interaction with colleagues that underlay the disciplinary actions of 2018 and 2019. These difficulties with interactions appeared aggravated by life events which preceded these difficulties including the unfortunate second marriage and subsequent risk assessment procedures, restricted duty status, and relative isolation from colleagues. Case for the respondent 1. The respondent relied upon the Notice, the Order and the Reasons which set out the findings against the applicant and the basis for the removal of him from the NSWPF. In addition, the respondent called a number of serving police officers to give evidence in the proceedings. David Maher 1. David Maher is a Chief Inspector, Professional Standards Command (PSC), based at Orange Police Station. Chief Inspector Maher gave evidence about the applicant's disciplinary history in the NSWPF, which is referred to at [12]-[17] above. Paul Pisanos 1. Paul Pisanos is an Assistant Commissioner and Commander of the PSC. Assistant Commissioner Pisanos had no direct involvement in the disciplinary action taken against the applicant which led to his removal from the NSWPF. 2. Assistant Commissioner Pisanos gave evidence about the role and functions of the PSC, including the promotion of professional standards across the NSWPF which included the Respectful Workplace Behaviours campaign launched in December 2016. 3. In addition, Assistant Commissioner Pisanos outlined the training which had been undertaken by the applicant in Respectful Workplace Behaviours, including training in relation to sexual harassment. 4. Assistant Commissioner Pisanos stated: 46. Mr Mounce-Stephens' conduct shows a failure to meet the requirements of his role, a lack of understanding into the expectations of his role as a police officer and a lack of insight into his own behaviour that is expected of a police officer. Specifically: (a) In 2018, Mr Mounce-Stephens was served with a s l73 Order reducing him in rank and a Region Commander's Warning Notice following findings that he had engaged in sexual harassment towards a female police officer. (b) The NSWPF then took remedial action to minimise the risk of Mr Mounce-Stephens engaging in that conduct again. Including, one-on-one training and mentoring on respectful workplace behaviour… (c) Despite these steps, less than one year later and, Mr Mounce-Stephens sexually harassed another colleague, being Complainant on 18 August 2019. Complainant 1. A witness statement by Complainant, which was relied upon by the respondent, contained the following: Phillip Mounce-Stephens 4. I first met Phillip Mounce-Stephens in 2016 when I moved to Orange Police Station. At this time, Mr Mounce-Stephens was in the rank of Sergeant. 5. Throughout the time that I worked with Mr Mounce­Stephens, our relationship was solely as colleagues. I did not consider him to be a friend. 6. When I arrived at Orange Police Station, people talked about issues between Mr Mounce-Stephens and his ex­wife. I do not specifically recall what they said. I also recall comments that complaints had been made about Mr Mounce Stephens. I don't specifically recall what they were. I didn't think about what other people said and wanted to make my own mind up about Mr Mounce­Stephens. 7. Shortly after I started at Orange, I started feeling uncomfortable around Mr Mounce-Stephens because he would make personal comments towards me. I do not remember each comment that he made or the timing of the comments, but two of the comments that i recall are Mr Mounce-Stephens said words to the following effect: "that jumper looks good on you" "if I asked you out, would you go out with me" 8. Mr Mounce-Stephens would make these types of comments towards me sporadically. Sometimes they would be months apart and other times more frequently. When Mr Mounce-Stephens made comments like this, I tried to brush the comments off or not respond to him. 9. Throughout my time in the Central West Command, I have had conversations with other female police offers who told me that Mr Mounce-Stephens made comments around them that made them feel uncomfortable. I don't recall specifically what those comments were. 17 August 2019 11. On Saturday, 17 August 2019, I was rostered to work between 6.00 am and 6.00 pm. 12. Either when I arrived at the station or when I checked the roster shortly before the shift, I noticed that Mr Mounce-Stephens was also rostered on to work the same shift as me. It was unusual that we would have a full shift together, we were often on opposite shifts and would only cross over for an hour or two during change over. 13. When I arrived at the station, Senior Constable Chris Macrae was acting supervisor for the shift. 14. Shortly thereafter, I approached Senior Constable Macrae and requested to be on station duties. Senior Constable Macrae agreed to my request. 15. Station duties means that you stay at the police station for the duration of the shift and are generally not required to be alone in a car with any other police officer. I would not normally request to be on station duties unless I had to catch up on paper work. However, on this occasion I requested to be on station duties was because I assumed that Mr Mounce-Stephens would not be there and I wanted to avoid a situation where we would be alone together for the majority of the shift. 16. The reason I made this request on this day was, in light of the sporadic comments Mr Mounce-Stephens had made towards me (referred to at paragraph 7 above), I didn't feel comfortable being around him for a whole shift and wanted to minimise the chances of that happening. 17. I do not recall the exact time of day, though at some stage during the morning I was sitting at the main computer in the station area. There was a group of police officers having a conversation and laughing, Senior Constable Williams and Senior Constable Macrae were in the area and I do not remember who else. Mr Mounce-Stephens was standing on the other side of a partition next to the computer that I was sitting at. I don't recall how the conversation started or what was said before, however Mr Mounce-Stephens said to me words to the following effect: "will you have a coffee with me" "will you go out with me" 18. Each time that Mr Mounce Stephens asked me these questions, I responded with words to the effect of "no". Mr Mounce-Stephens continued asking me questions to this effect throughout the shift and each time I would say no. At one point, I remember someone saying in response to Mr Mounce-Stephens asking me these questions, something to the effect of: "don't you have a missus" and Mr Mounce-Stephens replied saying "yeah". 19. Initially, I laughed at the comments because I was nervous and did not know what else to say or do. I also generally don't like conflict, particularly in the workplace, so I was avoiding having to address the comments. 20. Throughout the day, he continued to ask me similar questions when he was in the station. I don't recall whether it was every time that he returned to the station, but he made comments that made me feel uncomfortable throughout the shift. It was not uncommon for Mr Mounce-Stephens to make inappropriate comments generally in conversation, and had made similar comments to me in passing before, but on this day he kept doing it throughout the shift and I felt that it went further than usual. 21. The repeated requests and comments made me feel very uncomfortable and uneasy. 22. Later in the shift, Mr Mounce-Stephens was leaning on the partition that was directly to the right of my desk and he pointed to a list of staff numbers beside the computer and we had a conversation with words to the following effect: Mr Mounce-Stephens: Can I message you? Me: No Mr Mounce-Stephens: My number is there, you can message me anytime Me: No 23. Late in the afternoon around the time that I was waiting for nightshift, I was walking down the hallway known as the wet area where we hang jackets out to dry. At the same time, Mr Mounce-Stephens was dragging a mattress through the hallway the opposite way to which I was walking. As I passed him, he laughed and made a comment to the effect of: "I should trip you over so you fall onto this mattress" 24. When this comment was made, there was no conversation going at the time between any of the officers present. 25. I understood this comment had a sexual connotation due to the previous comments when he asked me on a date earlier in the shift. That is how I took the comment. This comment made me feel very uneasy, particularly after him repeatedly making comments to me throughout the shift. 26. Constable Monks was walking in front of me at the time that Mr Mounce Stephens made this comment about the mattress. Constable Monks immediately turned around and looked at me shocked with a raised eye brow. I mouthed (or whispered) words to the effect of: "What the fuck" 27. By this point in the shift, I felt really horrible because the comments had been consistent throughout the day and had continued and become more inappropriate after I said no to him. I was embarrassed because other police officers heard these comments and I was angry because Mr Mounce-Stephens had acted inappropriately towards me. 28. I walked back to the computer and the shift ended not long after. I did not see Mr Mounce-Stephens again during the shift. 29. I don't recall speaking to anyone on shift. I spoke to a friend about Mr Mounce-Stephens' conduct a few days after. Events of 26 August 2019 30. After 17 August 2019, the next time that I was rostered on to work with Mr Mounce-Stephen was 26 August 2019. 31. On that day, I started my shift around midday. I had seen that Mr Mounce-Stephens was rostered to work a day shift. I tried to avoid going near him during the shift to avoid him acting inappropriately towards me again. 32. At around 4.00pm, I was standing beside a pigeon hole shelf and leaning over the desk, Senior Constable Glawson was sitting at the computer on the phone in front of me. Mr Mounce-Stephens approached me and we had a conversation to the following effect: Mr Mounce-Stephens: You forgot to do to the month ending in 2 vehicle diaries. Me: I did them. 33. I was intentionally blunt when I answered Mr Mounce-Stephens to avoid engaging in a conversation with him or address his previous behaviour without another person present. The conversation continued to the following effect: Mr Mounce-Stephens: Are we good? Me: I didn't appreciate the comments the other day Mr Mounce-Stephens: Oh sorry I thought we were joking? Me: It was at the start but once it kept going all day it made me feel uncomfortable. Mr Mounce-Stephens: Sorry I thought it was a joke maybe I should keep my mouth shut. 34. I thought that Mr Mounce-Stephens' comment suggested that he knew what he had done was wrong. If that was right, given he continued the comments, I was concerned about how he would behave with other female police officers, especially junior ones. 35. Shortly after, I approached Sergeant Duffey, I do not recall the words that I used, but I told him everything that had occurred on 17 August 2019 and on 26 August 2019, and how it made me feel. I also told him that I was concerned about the junior female staff members, specifically the probationary officers, who may not feel comfortable standing up to him because he was a senior officer. 36. During the conversation with Sergeant Duffey, he told me to record what had happened on 17 August 2019 in my note book. Later that night, I recorded the incidents in my note book. I have reviewed the record that I made and confirm that it is true and correct. … 37. At this stage, I just wanted to let Sergeant Duffey know what was going on and did not want to make a formal complaint. I felt that this was sufficient to deal with the issue. Impact of conduct 38. Mr Mounce-Stephens and I did not work together much after 26 August 2019. When we were rostered on together, I would often feel anxious and consider calling in sick. The times that we did work the same shifts, we were on different trucks or while he was restricted, he worked on station or in custody, so there was limited contact between us. 39. On or around 15 November 2019, the roster for the following period came out. I did not see the rostered until 21 November 2019 because I was not at work during that time. When I first saw the roster I saw that Mr Mounce-Stephens' and I were both rostered on to start at midday on 23 December 2019, I became anxious about what he might say on the shift. I spoke to Sergeant Duffey and tried to get out of the shift. 40. Sergeant Duffey spoke to Inspector Harvey and the formal report and investigation process started. I didn't work with Mr Mounce-Stephens again. After the report went in, Sergeant Duffey made sure that I wasn't in the position to be alone with Mr Mounce-Stephens. 41. Since Mr Mounce-Stephens was removed as a police officer, I did not continue to feel anxious about his behaviour. I felt like a weight was lifted off my chest. If I think about his conduct, I still find it upsetting, but it is much better that he is not still at work. 1. Annexed to Complainant's witness statement was a copy of pages from her note book which contained the following hand written notes made by her on the evening of 26 August 2019: 8:10pm 26/08/19 On 17th August 2019 I was rostered on from 6am until 6pm. I was performing station duties. S/CST MOUNCE-STEPHENS was also rostered on. He made harassing comments to me all day. He said things like "will you go out with me?" "will you have coffee with me?" He pointed to the list with Police personal numbers and said "Can I message you?" I said "No" He said "my number is there you can message me anytime" I said "No" to all those comments. This happened on and off all shift causing me to feel uncomfortable. I was laughing at the comments but it was an uncomfortable laugh as I didn't know what to say or do. Late afternoon he seized a matress which was taken and placed on the trough area under the jackets as he was moving the matress I walked past and he said something similar to "I should trip you so you fall onto this mattress" This comment was out of line and made me feel extremely uneasy. On 26th August 2019 S/CST MOUNCE-STEPHENS spoke to me about 2 vehicle diaries. He said to me "Are we good?" I said "I didn't appreciate the comments the other day" He said "oh sorry I thought we were joking" I said "It was at the start but once it kept going all day it made me feel uncomfortable" He said "Sorry I thought it was a joke maybe I should keep my mouth shut" I said "ok let's just start fresh now" After this happened I told sgt DUFFEY everything that had happened as I wanted a senior officer to know what was going on and how it made me feel. Christian Macrae 1. Christian Macrae is a Senior Constable at Orange Police Station where he has been stationed since 2015. His witness statement, tendered in these proceedings, contained the following: Relationship with Phillip Mounce-Stephens 4. I met Mr Mounce-Stephens when I moved to Orange Police station in 2015. 5. During my first year at Orange Police Station, I worked with Mr Mounce-Stephens on most shifts. At the time, he was the team Sergeant and my direct supervisor. 6. After my first year, I moved to another team and generally would only see Mr Mounce-Stephens at shift change over. I understand shortly after I changed teams he was demoted to Senior Constable. 7. At times, I thought Mr Mounce-Stephens would make comments that were inappropriate. For example, as he was one of the few single officers at the Orange police station, if another officer became single he would comments to the effect of: Mr Mounce-Stephens: How about it? Let's go on a date. We're both single now. 8. Mr Mounce-Stephens would frequently make these sorts of inappropriate jokes and comments which I saw made other members of staff, particularly female members feel uncomfortable. On one occasion l saw him sniff a seat that a female member of staff had just stood up out of. He did this in the station area where people were around and he knew that people were watching. This made me think that he thought he was being funny. I don't think the female member of staff (who got out of the seat) saw him do this. 9. I consider that he often took things too far. 10. Mr Mounce-Stephens said comments or did things that I could see made others in the workplace feel uncomfortable because there was an awkward silence or people would say things like "you can't say that". 11. I can recall a number of times when people would tell Mr Mounce-Stephens that his comments were inappropriate, or he had gone too far. While I do not remember the specific details, I recall that he would generally become defensive and suggest that he hadn't behaved differently to anyone else. For example, while I do not specifically recall when the comment was made or to whom, I recall on one occasion he said words to the effect of: Mr Mounce-Stephens: It's nothing worse than what you've said. 12. From my observations of his leadership style, I would say Mr Mounce-Stephens understood the rule book but was not a leader, in that he generally did not lead by example or promote team morale. 1. Senior Constable Macrae then referred to Complainant, whom he had known since she was a probationary constable at Kings Cross Police Station in or around 2011. They had a good working relationship and he considered her to be a friend. His witness statement continued as follows: Events of 17 August 20219 17. On Saturday, 17 August 2019, I was rostered to work between 6.00 am and 6.30 pm. 18. When I arrived on 17 August 2019, I was informed I would be the supervisor for the shift. This is not uncommon and generally occurs when a rostered Sergeant calls in sick or otherwise a Sergeant has not been rostered. I cannot recall which occurred on 17 August 2019. 19. As part of the role of shift supervisor, I completed changeover with the outgoing Sergeant and spoke to the starting staff team about what they wanted to do for the shift. The starting constables included: Mr Mounce­Stephens; Senior Constable Williams; Complainant; Constable Monks; and Constable Rutten. 20. Complainant approached me in the muster room and asked to do station duties for the shift. I do not recall the exact words used, but we had a conversation to the effect of: Complainant: Can I be in the station for this shift? Me: Yeah, no worries. 21. I thought this was an unusual request from Complainant. In the time we had worked together, she generally preferred to be out in the truck rather than in the station. I did not question her further. I usually ask the senior team members for their preference and accommodate them where possible. 22. Around late morning, I joined several other Officers in the muster room. Aside from the usual banter amongst other staff, l noticed Mt Mounce-Stephen seemed particularly interested in Complainant. By this I mean, he was directing a number of comments towards her rather than the group. 23. Mr Mounce Stephens made a few comments over about a 20-minute period which in effect appeared to be asking Complainant out on a date. The comments were directed to Complainant. I cannot recall the exact or precise words he used, but they were to the effect of: Mr Mounce-Stephens: Hypothetically; what would you do if I asked you out on a date? Mr Mounce-Stephens: Do you want to go to the custody area and have a coffee with me? Would that count as a date? 24. Complainant responded in words to the effect of: Complainant: Fuck no, next level no. 25. I was surprised to hear Mr Mounce-Stephens make these comments because I understood he had a girlfriend. I made comments to the effect of: Me: Don't you have a girlfriend? Mr Mounce-Stephens: Yes 26. At the time, I did not realise that Mr Mounce-Stephens' comments were making Complainant uncomfortable. It did not immediately occur to me, that the comments might have that effect. 27. It was not until later that day, when I spoke with Complainant that I appreciated the impact of the comments. I do not recall the entire conversation, but during the conversation Complainant made comments to the effect of: Complainant: He has been a bit creepy before, it's made me feel uncomfortable, like significantly uncomfortable. I requested station duties because I was worried about having to work with Senior Constable Mounce Stephens. Complainant: This wasn't the beginning of it all. I've been feeling uncomfortable for a while. 1. Annexed to Senior Constable Macrae's witness statement was a typed statement signed by him and dated 20 January 2020. That statement contained the following: There was the usual banter that goes on, but I noticed S/Cst Mounce-Stephens seemed particularly interested in Complainant. He made a number of comments directed towards her, asking her out on a notional "date", and asking her hypothetically what she would say if he asked her out on a "date". He also asked her if she wanted to go out to the Custody area and have a coffee with him, and if that would count as a "date". I was surprised to hear S/Cst Mounce Stephens make these comments as I was aware that he had a girlfriend, which I asked him about and he confirmed. Ben Williams 1. Ben Williams is a Senior Constable who has been stationed at Orange Police Station since 2017. In his witness statement, which was tendered in these proceedings, Senior Constable Williams claimed that he met the applicant when he started at the station in 2017. At that time, the applicant was the team Sergeant. After the applicant was demoted to Senior Constable Level 6 in 2016, Senior Constable Williams worked with the applicant on a number of truck shifts. 2. Senior Constable Williams stated that he felt, at times, that the applicant "could be inappropriate" and that there were occasions where he would "cringe at [the applicant's] comments when he took the joke too far... when he was joking around, he might make a comment that was personal about a colleague or a joke that … was inappropriate in a work setting". 3. Senior Constable Williams had a professional relationship with Complainant who was also a friend of his wife. 4. Senior Constable Williams' witness statement contained the following: Events of 17 August 2019 12. On 17 August 2019, I was rostered to work between 6.00 am and 6.00 pm, as part of the car crew 'Orange 15' with Constable Monks. Mr Mounce-Stephens and Constable Kennedy were also rostered to work that shift as part of car crew 'Orange 16'. 13. On a car crew shift, it is normal to spend around 40% of the shift in the station, completing any relevant paperwork associated with requests for assistance and patrolling. 14. I do not recall the exact time, but during the shift I was sitting in the station area using the computer. The station area is separated from the muster room by a 4 foot partition. The partition does not go from floor to ceiling, so those in the muster room could be heard from where I was sitting. 15. I was sitting at a computer and heard Complainant and Mr Mounce Stephens having a conversation in the muster room. I was working at the time and did not give the conversation my full attention. I do not recall the exact words of the conversation but on about two occasions I recall Mr Mounce Stephens asked Complainant words to the effect of: Mr Mounce-Stephens: Will you go on a date with me? 16. I do not recall at what stage, but I recall that Complainant laughed in response to the comment being made on one occasion. I assumed she did so to try to brush it off or ignore it, as she was not engaging with what he was saying and the conversation ended. I do not recall her say anything specifically to shut down the comments or otherwise what was said in response. 17. I did not find the comment out of the ordinary for Mr Mounce-Stephens. He often engaged in awkward conversations with colleagues during work. Dane Monks 1. Dane Monks is a Constable stationed at Orange Police Station. He first met the applicant when he started at the station in 2018 when the applicant held the rank of Sergeant. Constable Monks also first met Complainant in 2018. He worked with her on his first shift and they have been on the same team since that time. Constable Monks described their relationship as "friendly" given that they work closely together but stated that they would not socialise outside of work. 2. Constable Monks' witness statement contained the following: Events of 17 August 2019 8. On 17 August 2019, I was rostered to work between 6.00am to 6.00pm. 9. During this shift I witnessed Mr Mounce-Stephens' make several comments to Complainant that were flirtatious and sexually suggestive. I do not specifically recall most of the comments, or the response. 10. On this same shift, Mr Mounce-Stephens made a comment to Complainant about a mattress which was resting against the wall outside the Station Manager's office during that shift while he was standing in front of me. 11. I do not recall the exact words that he used, but, I recall that it was a reference to using the mattress together and I recall thinking that comment was sexual in nature. That is, I did not think the comment was innocent at the time. 12. Immediately after the comment was made, Complainant turned around and mouthed to me, words to the effect of: Complainant: What the fuck. 13. Complainant did not otherwise respond to the comment. I cannot recall exactly, but to the best of my recollection, Complainant may have tried to laughed off the comment, in what I thought was a nervous manner. 14. l do not think Complainant received the comment as a joke given the comment that she made above at paragraph 12. At the time I thought the comment was a bit off and, given the sexual connotation, that it was inappropriate. 15. I recall Mr Mounce-Stephens making other comments throughout the shift, directed at Complainant, but no longer recall what he said or what Complainant's reaction was, if any. 16. Because of the frequency and nature of Mr Mounce-Stephens' comments to Complainant during the shift, I went to check on her. Towards the end of the shift, we had a conversation to the effect of: Me: Are you okay with the comments? Complainant: It's very uncomfortable, but otherwise I'm alright. 1. Annexed to Constable Monks' witness statement was a written statement signed by him on 18 December 2019 in which he stated that the applicant's comment to Complainant about the mattress "expressed a desire to use the mattress with Complainant". Also annexed to Constable Monks' witness statement was his response to a series of questions from Chief Inspector Rayner dated 5 January 2020. Constable Monks' response to a question about "'flirtatious/sexually suggestive' comments made by Senior Constable Mounce-Stephens to Complainant" contained the following: …there were a number of comments made throughout the day… Due to the frequency of S/CST MOUNCE-STEPHENS comments towards Complainant throughout the day it prompted me to ask her if she was alright. Brian Duffey 1. Brian Duffey holds the rank of Sergeant at Orange Police Station. He has known the applicant and Complainant since he began working at the station in February 2019. For most of the time that Sergeant Duffey has worked at Orange, Complainant has been part of his team. 2. Sergeant Duffey did not witness the events that occurred at the station on 17 August 2019. He did, however, have a conversation with Complainant at the station on 26 August 2019. Sergeant Duffey gave the following evidence by way of a witness statement that was tendered into evidence in the proceedings: 10. On 26 August 2019, I was rostered to work the day shift, between 6.00 and 6.00pm. Complainant was also rostered to work that day from midday as the mobile supervisor. 11. Around 5.30pm, towards the end of the shift, Complainant approached me in the rear supervisor office to discuss an incident with Mr Mounce-Stephens a few days prior. I noticed Complainant appeared very uneasy and uncomfortable. We had a conversation to the effect of: Complainant: Senior constable Mounce-Stephens has been making comments, asking me out on a date and for coffee and for my phone number. At first, I just tried to laugh it off to try and keep things civil. I was hoping it would stop but the comments continued for most of the shift. I kept saying no, but he just kept asking over and over. It was very uncomfortable. Complainant: There was another comment about a mattress which had been brought in as found property. As I walked past him in the hallway, he made a comment about knocking the mattress onto the floor and tripping me onto it. Constable Monks was nearby, he may have witnessed the comments. Senior Constable Williams was also in the station that day and appeared to notice the inappropriate comments and ran interference for me. Me: Do you want to make a formal complaint? Complainant: I'm not sure. I don't think I'm comfortable going down that road yet. Me: Well, initially you talk to him and let him know that you found the comments inappropriate. If you're not comfortable having that conversation, I could have that conversation for you. If you felt that couldn't work, we could go to paper and speak to the duty officer and then take it further if we need to. 12. At the time, I was aware Mr Mounce-Stephens had been demoted, but I did not know why. 13. During our conversation Complainant also made a comment to the effect of: Complainant: Earlier I was just in the Station Area and Senior Constable Mounce-Stephens approached me asked me ''Are we okay?". It was probably because I have been avoiding him as much as possible. I told him that we were not okay and that I did not appreciate the way he spoke to me the other shift and it made me very uncomfortable and I didn't appreciate it at all. He then said that "I guess I should have kept my mouth shut". 14. I then took Complainant through NSWPF's internal grievance procedure again, discussing what options were open to her. Complainant then made a comment to the effect of: Complainant: I don't want to record the matter formally or make a formal complaint. I feel like I've dealt with it myself today but I am concerned that we have new probationers in the station, they might become his targets. They may not have the courage to stand up to him. … 16. The following day, I also had a conversation with Complainant to check in on her welfare. I do not recall the specific words or timing, but when we had the chance to speak privately I recall having a conversation to the effect of: Me: How are you going? Complainant: I'm okay, l just feel really uncomfortable about it all. I feel like I have dealt with it. I haven't had to have any further interaction with him. I made a short note in the team chronology that day about our conversation and confirming that I had checked in on Complainant. 17. From time to time, I continued to check in on Complainant to make sure she was okay. When I checked on her, she would make a comment to the effect of: Complainant: I'm still uncomfortable around him. 18. Complainant did not inform me of any further issues with Mr Mounce-Stephens. I understand they did not work together often and because of their seniority and if they did work the same shift, they would be on separate crews. 19. On 21 November 2019, Complainant approached me in the supervisor's office about a shift she was rostered to work at mid-day on 23 December 2019. I do not recall the entire conversation but [Complainant] made a comment to the effect of: Complainant: Senior Constable Mounce-Stephens and I are both rostered to work on 23 December 2019. I feel very uncomfortable with the thought of working with him. I was wondering if a shift swap was possible or if anything else could be done? I hadn't realised how much it was still worrying me. I have been feeling very anxious and unwell about it. 20. Complainant's manner made me form a view that she was distressed. She is usually very matter of fact and straight down the line. However, during this conversation she was very fidgety, flustered and a bit frantic. 21. On 21 November 2019 at 12.17 pm, I sent an email to Mr Harvey, the HR Duty Officer about a possible shift swap for Complainant. In the email, I explained that an incident had occurred with Mr Mounce-Stephens a few months earlier and Complainant was still feeling uncomfortable. … 22. Shortly thereafter, Mr Harvey approached me to discuss what had happened with Mr Mounce-Stephens. Mr Harvey asked me something to the effect of: Mr Harvey: What happened? Me: I had a meeting with Complainant in August and she told me about the incident. 23. I do not recall my exact words, but I went on to summarise what Complainant had told me on 26 August 2019. Mr Harvey then asked something to the effect of: Mr Harvey: Do you know the background of this guy? Me: I know he was demoted, but I am not sure why or what the issues were. Mr Harvey: Right, there have been prior incidents. Can you please speak to Complainant and see if she is happy to speak with me? 24. Shortly after, I arranged for a meeting with Complainant, Mr Harvey and myself. During the meeting, Mr Harvey asked Complainant a question to the effect of: Mr Harvey: Would you be happy to do a formal report? If not, Sargent Duffey can do it. Complainant: I am happy to do it. 25. I still regularly speak with Complainant about her welfare as a result of this matter. Submissions of the applicant 1. Counsel for the applicant commenced her final submissions as follows: The applicant's position is, firstly, the removal is unjust and/or unreasonable because Mr Mounce-Stephens did not engage in the conduct as described in the allegation. He did not sexually harass Complainant. To the extent that he admitted some of the conduct, it did not amount to unprofessional or inappropriate behaviour and strictly, in the alternative, if the conduct that the applicant is found to have engaged in amounts to unprofessional and inappropriate behaviour, removal is harsh and in regard to the minor nature of the conduct, the applicant's long history as a committed police officer, his personal circumstances at the time and the impact upon him and his family. 1. Counsel then referred to the definition of "sexual harassment" in State and Commonwealth legislation and to the judgement of the Full Federal Court (Collier, Reeves and Perram JJ) in Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; 382 ALR 231. Counsel distilled from this judgement that sexual harassment under the Sex Discrimination Act 1986 (Cth) was "conduct of a sexual nature", a question of fact; conduct that is "unwelcome to the person allegedly harassed"; and the "circumstances must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct". 2. Counsel went on to submit that the Commission would not be satisfied that asking Complainant to go out or have a coffee involves conduct of a sexual nature. Similarly, asking Complainant if the applicant could message her or telling Complainant that she could message him, which conduct is not admitted by the applicant, does not involve conduct that is sexual in nature. It was also put that the comment, "I should trip you over so you fall" absent the reference to the mattress, could not be viewed as sexual in nature. However, it was accepted on behalf of the applicant "that the mattress does convey connotations that are sexual in nature", but the applicant maintained his denial that this comment was ever made by him. 3. Counsel then canvassed the evidence of witnesses called by the respondent with respect to the applicant asking Complainant to go out on a date or for a coffee and concluded as follows: So, of the three witnesses who heard anything, in my submission none of their evidence could satisfy this Commission that the reasonable person would find, in all of the circumstances, that the spoken words would have offended, humiliated or intimidated Complainant. 1. Counsel also noted that a number of potential witnesses were at Orange Police Station on 17 August 2019 and "recollected nothing from the day in question". This, together with what was recollected by the witnesses who did give evidence in the proceedings, did not meet the "reasonable person test for the purposes of establishing sexual harassment" by the applicant of Complainant. 2. It was also submitted on behalf of the applicant that there was no "power imbalance" between the two officers who were of equal rank. 3. Counsel referred to the evidence of the work environment where "the language can be robust and where workplace banter and jokes are recognised as part of the culture…" and then submitted as follows: Even if the Commission were to accept Complainant's account, that is that Mr Mounce-Stephens made comments, such as "Will you go out with me?" and "Will you have coffee with me?" on and off all day…, it does not follow that the reasonable person would have anticipated that Complainant would have been intimidated, humiliated or offended by the conduct. 1. It was noted on behalf of the applicant that, as at 26 August 2019, Complainant had dealt with the matter herself which is in accordance with the respondent's Respectful Workplace Behaviours Guidelines. 2. It was also put that the fact that none of the officers who gave evidence in the proceedings, and none of the other officers on shift on 17 August 2016, "had the view at the time that the comments involved conduct that was sufficiently serious to require them to speak up at the time or to report the conduct is also relevant to the reasonable person test". 3. Counsel also noted that Sergeant Duffey, "the most senior witness from Orange Police Station to give evidence in these proceedings but not actually a witness on 17 August, upon being told of the conduct on 26 August, did not report it, notwithstanding that five probationary constables started work on the day that the conduct was reported to him and notwithstanding that he was aware that my client had been recently demoted from the position of sergeant to senior constable". Counsel submitted that this "inaction by a senior officer strongly militates against the reasonable person anticipating that the comments made by Mr Mounce-Stephens would have had the effect of intimidating, humiliating or offending Complainant". 4. It was further submitted that the Commission should accept the applicant's evidence that, once Complainant said "No" to his direct invitation to go out for coffee, he stopped asking. 5. Counsel then submitted that it was not the inherent seriousness of the applicant's conduct on 17 August 2019, but rather the intervention of the HR Duty Officer, Acting Superintendent Harvey, who had been involved in the previous matter that resulted in the applicant's demotion, that led to a formal complaint being made by Complainant. 6. Counsel referred to the judgement of Peterson J in Cassel v Commissioner of Police [2003] NSWIRComm 73 at [46] and submitted that, on the evidence before the Commission, the allegation that the applicant continued to ask Complainant out after she had clearly said no cannot be made out. 7. Reliance was also placed on a number of character references that were provided to the applicant. 8. Counsel canvassed the evidence of the witnesses about the mattress comment and submitted as follows: In its totality, there is sufficient uncertainty about the mattress comment that, in circumstances where Complainant delayed in making the complaint and deprived Mr Mounce-Stephens of the advantage of recency of recollection or the ability to preserve CCTV footage, the Commission should find this part of the allegation not proven. 1. Lastly, counsel referred to the evidence of Dr Anderson which outlined some of the difficulties which the applicant had faced in recent times. Submissions of the respondent 1. In support of the decision to remove the applicant from the NSWPF, counsel for the respondent relied primarily on the evidence of Complainant as to the "particulars of the allegation". 2. In relation to what counsel described as the "disputed conduct", the Commission was referred to Complainant's evidence of the conversation she had with the applicant at the police station on 26 August 2019 (see Complainant's witness statement, paragraph 33 at [46] above). Counsel noted that the applicant had not contradicted this evidence. Counsel then submitted as follows: Now, a number of things flow from all of this and some I'll come back to later on, but this, in our submission, demonstrates that, notwithstanding the training that Mr Mounce-Stephens had only recently been engaged in, it supports this submission, that he just doesn't get that that behaviour, whether it's joking or not, is not acceptable and wasn't acceptable. So, we say that that's a rational explanation to the submission of the inherent improbability. Now, the flipside of that submission is to approach it from the perspective of Complainant and I'll ask a number of rhetorical questions. What does Complainant achieve or derive from in effect - I'll say this, in effect making this evidence up? Now, in our submission and there are a couple of things I'll say in a moment, but our submission is that the potential consequences for Complainant point to the inherent improbability that she would make this evidence up. So, there are a couple of factual matters that I want to rely upon; two in particular. The first, that there's been no evidence or suggestion, it's certainly not suggested to her in cross-examination, that she was somehow had some grudge to bear against Mr Mounce-Stephens and so she was on some sort of path to have him disciplined or removed. None of that was suggested to her and there's no evidence to that effect. The second thing, Commissioner and perhaps this is just as important, that Complainant, if she has to have made this all up, she would, in my submission, expose herself to making a false complaint against another officer and that, in turn, for her would expose her to either conduct which could be managed or I think it's ultimately a breach of the Police Act. So, they're matters, in my respectful submission, that you ought have regard to in assessing whether or not this is the type of evidence that Complainant would concoct or make up. 1. The decision of the Commission as presently constituted in Guru v Commissioner of Police [2019] NSWIRComm 1080 was cited on the issue concerning whether one of the police officers in that matter made up the complaint. 2. Counsel referred to the fact that Complainant had made a "relatively contemporaneous note of what had occurred on 17 August… It has… all of the fundamental aspects of the evidence recorded" (at [47] above). 3. Counsel then dealt with the submission put on behalf of the applicant concerning the delay between the incidents that occurred on 17 August 2019 and the making of a formal report by Complainant on 21 November 2019 by tracing the chronology of events that occurred between those two dates. Counsel submitted as follows: Now, again in my submission, that chronology of events is supported by her evidence and is completely understandable. But what it demonstrates - and this was her evidence - is that the conduct had this continuing effect on her. And so when she gave evidence in re-examination that her anxiety had gone through the roof, that is consistent with her evidence that she gave in-chief and it's consistent, I would submit, or we would submit, with human nature. And again, consistent, just dealing with it herself, consistent with what Sergeant Duffy says in his evidence… he says he took Complainant through the grievance procedure, discussing what options were open and she says here, "I don't want to record the matter formally or make a formal complaint. I feel like I've dealt with it myself today" and then she says, "But I'm concerned that we now have probationers in the station and they might become his targets. They may not have the courage to stand up to him." Then you have the evidence in para 16 the following day, so this is the next day, Sergeant Duffy had a conversation with Complainant to check in on her. Now, I want to digress here because there was a submission that I ...(not transcribable)... submission that along the lines, and I might be wrong about that, no one did anything to check in about this behaviour or check in on this behaviour after it occurred and that somehow demonstrated that no one thought this was inappropriate or the like. Well, here's evidence of Sergeant Duffy checking back. I'll come to the evidence of Constable Munks in a moment, but he checked in at the end of the shift with her, to find out whether Complainant was okay. But again, we have this consistent corroborative of evidence about Complainant trying to deal with this matter herself. And so you ought not, in my submission and there's no basis in my submission, to draw any adverse finding against Complainant in relation to the gravity or the nature of the conduct because she didn't formalise the complaint immediately, nor because of what she did in November 2019, to then formulate the complaint. Logical, understandable explanation. 1. Counsel then submitted that the evidence of Complainant had been corroborated by Constable Monks and rejected any suggestion that the two officers had got together and concocted their evidence. In submitting that the evidence of Complainant and Constable Monks about the mattress comment should be preferred over that of the applicant, counsel submitted as follows: So all of those matters, in my respectful submission, do give some explanation as to why Mr Mounce-Stephens might not be prepared to accept or the flip-side of the argument, give evidence denying that he engaged in that conduct because he appreciated fully the consequences for him if he was to admit that conduct and so what he is prepared to do - so unlike Complainant and Constable Munks, who have - who in my submission, have nothing to gain from making this evidence up or no telling the truth, one can imagine that Mr Mounce-Stephens does have everything to gain in relation to defending his employment. 1. The judgement of the Court of Appeal (Bell P, and Payne and McCallum JJA) in Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 was cited on the issue of the meaning of the phrase "other unwelcome conduct of a sexual nature" as used in s 22A of the Anti-Discrimination Act. In particular, counsel referred to the following passages from the judgement: 33 Section 22A of the Anti-Discrimination Act provides: 22A Meaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if — (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 34 The relevant requirements of the section are that the first person, here Vitality Works, engages in "other unwelcome conduct of a sexual nature" in relation to the other person, here Ms Yelda. Whether conduct amounts to "other unwelcome conduct of a sexual nature" is a question of fact having two parts. Whether the conduct is "unwelcome" is a subjective question, judged from the point of view of the person subjected to the conduct. Whether the conduct is "conduct of a sexual nature" is a question of fact, ascertained objectively. 35 The breadth of the conduct amounting to "other unwelcome conduct of a sexual nature" should not be read down or confined by reference to limits or restrictions which do not appear in the statute. In a leading text concerning sexual harassment, which was quoted in submissions by Vitality Works, the following passage appears (Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, Federation Press, 2018) at 640): [12.3.24] The [Sex Discrimination Act 1984 (Cth)] definition of 'sexual harassment' strikes a balance between competing interests by providing some protection to unthinking and unwelcome, but genuine, suitors, and to people who engage in horseplay, by requiring proof of an objective element which evaluates the behaviour in question from the perspective of the reasonable person. 36 No doubt contrary to the intention of the learned authors, it would appear that this passage may have been understood by some as introducing the concept of conduct found to be "horseplay" as being somehow immune from characterisation as "sexual conduct". We reject that suggestion. It is a serious error to contrast "horseplay", whatever that non-statutory term is supposed to mean, with "other unwelcome conduct of a sexual nature". A finding of fact that conduct amounts to "horseplay" is irrelevant to the question of whether that conduct should be characterised as "other unwelcome conduct of a sexual nature". Conduct which may be characterised as "horseplay" — an imprecise concept — is not immune from being found to be sexual harassment. 37 The second element of sexual harassment is that a reasonable person, having regard to all the circumstances, would have anticipated that Ms Yelda would be offended, humiliated or intimidated by the proved conduct. This is an objective test. Vitality Works' submission that the use of the slogan "Feel great — lubricate" over photographs of employees of Sydney Water and other clients of Vitality Works had not led to adverse comment in the past, and that this was somehow relevant to determination of the objective question, should be rejected. The evidence advanced by Vitality Works of a subjective reaction of an unknown number of people about this question is a clear example of why the subjective views of participants are irrelevant to the question of whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by the conduct. The evidence relied upon by Vitality Works was vague and anonymous. Absent context, Vitality Works' evidence about the absence of complaint concerning other posters reveals nothing about whether a reasonable person would be offended, humiliated or intimidated by the conduct addressed to Ms Yelda here. That evidence did not even disclose whether any other woman, as distinct from a man, had ever been subject to a campaign where her image was superimposed with the text "Feel great — lubricate". 1. Counsel then submitted as follows: So here, whether it's unwelcome depends entirely upon the evidence of Complainant and Commissioner, I took you to that evidence earlier, where I say clearly, what occurred to her on 17 August was unwelcome. So you focus entirely on what she felt about it and in my submission, her evidence I took you to earlier, clearly demonstrates how unwelcome it was. Their second proposition is whether the conduct is conduct of a sexual nature is a question of fact ascertained objectively, then over the page, paragraph 35, they talk about not reading down the breadth of the conduct and then there's this pickup of horseplay, so again it's introducing this prospect, in certain circumstances, jokes, banter, horseplay, all of that, all of that is irrelevant ultimately, it can amount to sexual harassment. And then I just wanted to draw your attention to paragraph 37, where it says that the second element of sexual harassment is that a reasonable person having regard - and they italicise this, "all the circumstances would have anticipated that Ms Yelda would be offended, humiliated or intimidated by the proved conduct". And then they say here, "This is an objective test". And so this reasonable person proposition depends upon all of the circumstances. In our submission, all of those circumstances include knowledge of the fact that Complainant had had the initial requests made that she had rejected. Then a continuation of those requests, asking for the email or the text messaging and then the comment about the mattress. So can we be clear about this, what the Commissioner has relied upon is all of the conduct and in our submission, all of the circumstances include all of the conduct which I referred to before as the particulars of the allegation. 1. Counsel then referred to a number of other passages from the Court of Appeal judgement and ultimately submitted as follows: Now perhaps I needn't spend too much time on this because as I understand it, understood, the concession is that if it's accepted that a mattress comment was made, then it would - it's not a concession about a sexual harassment, because the other elements have to be made out, but its concession was of a sexual nature and we say that this clearly would support that in the circumstances. 1. Ultimately, counsel submitted that all of the elements of sexual harassment of Complainant by the applicant were made out in that the conduct was clearly unwelcome and that "a reasonable person, with knowledge of all of the circumstances, ie the original, the earlier rejection of the offer, the further consistence (sic insistence) on going out for a date, the text messaging, request a message and then the mattress comment, would regard that as being conduct that could humiliate or offend Complainant". 2. Counsel concluded his submissions by rejecting the applicant's claim that his removal was harsh; by pointing to the applicant's failure to accept that he had engaged in sexual harassment of Complainant and to apologise; by referring to the applicant's disciplinary history and the fact that he was on notice of the possible consequences for him if he engaged in similar conduct again; and the "medical evidence" which, as far as the respondent was concerned, did not explain the applicant's conduct one way or the other. Determination 1. I have determined that the Application must be rejected. I have reached this determination for reasons upon which I elaborate below. Request to go out and/or have a coffee with the applicant 1. The allegation against the applicant was that, on 17 August 2019, after Complainant refused the applicant's initial requests to go out with him or to have a coffee with him, the applicant continued to make similar invitations (see [6] and [20] above). 2. The applicant's response to this allegation varied over time. 3. In his interview with Chief Inspector Rayner on 21 January 2020, it was put to the applicant that he had asked Complainant to go out with him on several occasions throughout the shift. The applicant stated "I invited her out for a coffee… I'm not sure that it was several times… I believe I would have only asked her the once, directly". He stated that he "might have tested the water, floated the idea… I was very mindful that I could only ask her once, due to the policy. Maybe twice… I tested the water first and then I asked her directly". The applicant recalled that Complainant's reaction was "obviously negative" because they "never went out for coffee" and "I never raised it again after that" (at [22]). 4. In his response to the Investigation Report, the applicant stated that he partially admitted the allegation in that he asked Complainant out for a coffee but denied that there was "any sexual intent or that this conduct constituted sexual harassment…" (at [24], paragraph 54). 5. Under cross-examination, the applicant gave the following evidence: Q. ... after Complainant refused your request to go out with you and have a coffee with you, you", first, paragraph see that? A. Yes. Q. "Continued to make similar invitations", see that? A. Yes. Q. In these proceedings before the Commission you deny that, don't you? A. I asked her twice. Indirectly and directly. Q. But to the extent that it was said that you made similar invitations, you deny doing that? A. Yes. 1. In stark contrast to the applicant's evidence, it was Complainant's evidence that the applicant said to her words to the following effect, "will you have a coffee with me" and "will you go out with me" throughout the shift and, each time, she would say "no" (at [46], paragraphs 17-20). 2. Counsel for the applicant cross-examined Complainant about this evidence. The following exchanges occurred: Q. I want to suggest to you, Complainant, that Mr Mounce-Stephens only asked you once directly whether you would go out for a coffee with him? A. No. Q. And that it was only on one occasion that you directly said, "No" to him when he asked you if you wanted to go out for a coffee with him? A. No. 1. Complainant was cross-examined further on the number of times during the shift that the applicant asked her to have a coffee or go out with him. She remained unshaken with respect to her claim the this occurred repeatedly throughout the shift. Her evidence to this effect was supported by evidence given by Constable Monks (at [56]-[57]) and, to a lesser extent, by Senior Constable Macrae (at [50]). There is no evidence before the Commission which would support any suggestion that the witnesses who gave evidence for the respondent during the proceedings had colluded with each other to manufacture false evidence which would be detrimental to the applicant's cause. 2. It is also unsurprising that other potential witnesses who were on duty at Orange Police Station on 17 August 2019, but who apparently did not hear or recall the applicant making repeated requests to Complainant to go out or have coffee with him, were not called to give evidence in these proceedings. The fact that some officers may not have heard or recalled the conversations between the applicant and Complainant on that day does not diminish the weight to be accorded to the evidence of those officers who did. 3. I have had the advantage of observing Complainant giving her evidence under cross-examination and I formed the opinion that she was a witness of credit. She had nothing to gain by making up the allegations against the applicant whereas he had a strong motive for denying them… the preservation of his job. I accept Complainant's evidence on the issue of the frequency of the applicant's requests for her to have a coffee or go out with him over the evidence of the applicant on this issue. 4. The respondent's Respectful Workplace Behaviours Guidelines, which had only recently been one of the subject matters on which the applicant had received intensive training, clearly states, as examples of sexual harassment: - requests for sex or repeated unwanted requests to go out on dates when the person has refused similar invitations before 1. The applicant was aware of this but chose to ignore it. Request to message each other 1. When the allegation that he asked Complainant whether he could text message her was first put to the applicant by Chief Inspector Rayner on 21 January 2020, the applicant's response was "I don't believe so". When asked if he informed Complainant that she could text message him, the applicant responded "I don't believe so. But If she wanted to, she could of. We're two adults" (at [22]). 2. In his response to the Investigation Report, the applicant denied this aspect of the allegation (at [24]). 3. The applicant repeated this denial under cross-examination during these proceedings: Q. …it was also alleged that you asked Complainant if you could message her; do you see that? Do you understand that allegation? A. Yes. Q. You deny that in these proceedings, don't you? A. Correct. Q. Likewise, it was alleged that you told her that she could message you any time, did you understand that? A. Yes. Q. You deny that in these proceedings, is that right? A. Correct. 1. However, under further cross-examination about the transcript of the interview with Chief Inspector Rayner on 21 January 2020, the following exchanges with the applicant occurred: Q. I draw your attention to the questions again about the middle of the page. And the question is, "Did you ask Complainant whether she - whether you could text message her", do you see that question? A. Yes, I do. Q. You answered, "I don't believe so"? A. Correct. Q. See that? You were then asked, "Did you then inform her that she could text message you any time?" Your answer was, "I don't believe so but if she wanted to she could have. We're two adults". When you said or you answered, "I don't believe so", I want to suggest to you that you were leaving open the possibility that you could have but you just didn't remember when you were asked that question on 21 January. What do you say about that? A. It's a possibility, yes. Q. When you say it's a possibility, it's a possibility that in fact you did ask Complainant whether you could text message her, that's right? A. Yes, it's a possibility, yes. Q. Likewise, it's possible that you also told her that she could text message you any time, that's right? A. It's a possibility, yes. Q. Is it the case you just don't remember whether you did do that or did not do that? A. Well, I believe that I didn't say those comments. 1. In her evidence, Complainant stated positively that the applicant asked if he could message her and then said that she could message him anytime (at [46], paragraph 22). This evidence is consistent with what Complainant wrote about this aspect of what occurred on 17 August 2019 in her note book some nine days later (at [47]). 2. When Complainant was cross-examined about this aspect of her evidence, she did not equivocate: Q. You also say in your statement that Mr Mounce-Stephens had - this is at paragraph 22 of your statement. You say at paragraph 22, "Later in the shift", do you see that? A. Yes. Q. Do you have any independent recollection now as to when in the shift this conversation took place? A. No. Q. So when you say "later", are you able to say whether you meant afternoon or later in the morning or you just don't know. Q. I don't recall. Q. Is it possible Complainant that that was a conversation that you had with a different officer? A. No. Q. Is it possible that that's a conversation that you had with… Senior Constable Mounce-Stephens on a different occasion? A. No. 1. For the reasons set out at [96] above, I accept the unequivocal evidence of Complainant on this aspect of the allegation against the applicant, over the equivocal evidence given by the applicant himself. Mattress comment 1. This aspect of the sexual harassment allegation against the applicant is the most contentious. The allegation is that, when Complainant walked past the applicant in the hallway of the police station, in the vicinity of an abandoned mattress that had been brought into the station by the applicant and Constable Ben Kennedy, the applicant said to her "I should trip you over so you fall onto this mattress". 2. When this allegation was put to the applicant by Chief Inspector Rayner during the interview on 21 January 2020, his responses contained the following: I don't believe that is something I would have said no, but I don't recall… I'm trying to mindful of what I say to people. Talking to people in the station as little as possible… Because of previous issues… I don't believe I said it and it definitely would not have been in a sexual nature, I don't believe it would be something I would have said… Cause I don't need any more issues. l don't even believe I would have said it in the first place. (at [22]) 1. In his response to the Investigation Report, the applicant stated "I refute the allegation…". He maintained this refutation in his Response to the Notice and in his evidence before this Commission. 2. Under cross-examination, the applicant gave the following evidence: Q. It was alleged that you made a comment directed to Complainant to the effect that "I should trip you over so you fall onto this mattress". Do you understand that allegation? A. Correct, yes. Q. You deny making that statement or statement to that effect, is that right? A. Correct. Q. Do you deny making any statement to Complainant on 17 August 2019 in relation or reference to the mattress? A. Yes, I do deny it, yes. Q. So just so I'm clear, so that you're clear, Mr Mounce-Stephens, you've denied the allegation that was set out in the section 181D notice, that's right? A. Yes. Q. The other question I asked you, so that you are clear, you actually deny making any statement directed towards Complainant about the mattress in its entirety, correct? A. Yes. 1. Complainant was definite in her evidence that the mattress comment was made by the applicant. She gave the following evidence under cross-examination: Q. And I want to suggest to you that you were mistaken in thinking that Senior Constable Mounce-Stephens said, "I should trip you so you fall onto this mattress"? A. No. 1. Complainant also gave evidence that, after the applicant made the mattress comment, she mouthed or whispered to Constable Monks the words "What the fuck" (at [46], paragraph 26). 2. Constable Monks gave evidence that he heard the applicant make a comment to Complainant about the mattress. He did not recall the exact words used by the applicant but recalled thinking that the comment was "sexual in nature". He also gave evidence that, immediately after the comment was made, Complainant mouthed the words to him "What the fuck" (at [56], paragraphs 10-12). 3. Both Complainant and Constable Monks gave compelling evidence that the applicant did, on 17 August 2019 at Orange Police Station, make a comment to Complainant of a sexual nature about a mattress that was present at the station at the time. I accept the evidence of Complainant and Constable Monks on this aspect of the sexual harassment allegation against the applicant. It follows that I reject the applicant's responses to this aspect of the allegation, which changed over time from "I don't recall" to a firm denial in these proceedings. However, I note that, under cross-examination, the applicant did state, in relation to his responses to Chief Inspector Rayner (at [22]), "I probably didn't answer the question with the right words… I probably didn't – yeah choose my words correctly", I am, nevertheless, satisfied to the requisite standard that the applicant made the mattress comment as claimed by Complainant (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362). 4. Having observed the applicant, Complainant and Constable Monks under cross-examination, I am fortified in finding that the applicant did make the mattress comment by the "inherent unlikelihood" that Complainant and Constable Monks would concoct the allegation and maintain it whilst giving evidence under oath in these proceedings. Against this, I find that there is no "inherent unlikelihood" that the applicant made the mattress comment as alleged, given his earlier unsuccessful attempts that day to engage with Complainant and his previous record of making a similarly unacceptable comment to a fellow police officer (at [15]-[16]). 5. Further, there is nothing before the Commission that suggests that either Complainant or Constable Monks had any motive to invent the mattress comment and attribute it to the applicant. On the other hand, the applicant did have a motive to deny the allegation. It was accepted on the applicant's behalf that the mattress comment, if made by him to Complainant, "does convey connotations that are sexual in nature" (at [62]). 6. The applicant had only recently been demoted from the rank of Sergeant and given a Region Commander's Warning Notice for a previous sustained allegation of sexual harassment of a junior officer. The Warning Notice stated that "should you engage in similar conduct in the future you will be considered for removal under section 181D of the Police Act 1990" (at [17]). Given the real threat to his employment with the NSWPF should it be determined that the applicant had made the mattress comment to Complainant, the applicant had a strong motive to deny the allegation. Was the removal of the applicant harsh, unreasonable or unjust 1. I agree with the findings made by the respondent which are referred to at [6] above. It is, therefore, my determination that the respondent had a valid reason to remove the applicant from the NSWPF. I find that such removal was neither unreasonable nor unjust. 2. On the question as to whether the removal of the applicant was, nevertheless, harsh, I have given consideration to the mitigating factors that have been raised in support of the Application. 3. However, I am unable to place a great deal of weight on the character evidence given by Ms van Raad (at [32]-[33]). It appears that Ms van Raad has accepted the applicant's version of the events of 17 August 2019, including his statement to the effect that "banter" with Complainant was "both ways" and that the applicant "ceased particular actions when Complainant indicated her standpoint". I have found that this did not occur and that the applicant persisted with his requests for Complainant to go out and/or have coffee with him despite Complainant having made her rejection of those requests very clear to him. It also appears that Ms van Raad was not made aware of the allegation concerning the mattress comment which the applicant has denied but which I have found to be substantiated. 4. The evidence of Dr Anderson falls short of establishing that the removal of the applicant was harsh (at [36]-[39]). It appears that Dr Anderson has accepted that the applicant did not persist with his requests to Complainant "for a cup of coffee, that is a date" after his initial request was declined. It also appears that Dr Anderson has accepted the applicant's denial that he made the mattress comment. At its highest, Dr Anderson's evidence expresses an opinion that the applicant's mild Autism Spectrum Disorder "is relevant to his conduct at work in the period 2016 to 2019, including in particular his interaction with colleagues that underlay the disciplinary actions of 2018 and 2019". This evidence falls short of establishing that the applicant's condition caused him to sexually harass Complainant after he had previously been demoted and warned for sexually harassing another fellow police officer who was junior to him at the time. 5. I have also given consideration to the evidence of the applicant in relation to the personal and economic consequences of his removal from the NSWPF, which evidence I fully accept. However, all such removals of serving police officers are likely to cause some level of hardship to the officer concerned. It is my determination that this evidence falls short of establishing that the removal of the applicant was harsh. 6. The respondent has a duty to provide a safe workplace for all workers engaged in the NSWPF. Workers, such as Complainant, have the right to come to work and do their job without being subjected to the type of harassment from a work colleague as Complainant was subjected to by the applicant in this case. 7. It follows that the Application must fail. Order 1. I order that the application made by the applicant, Phillip Mounce-Stephens, to this Commission pursuant to s 181E of the Police Act 1990 for review of the Order made on 17 February 2021 by the Commissioner of Police pursuant to s 181D of the Police Act removing the applicant from the New South Wales Police Force be dismissed. John Murphy Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2022