McIntyre v Commissioner of Police [2023] NSWIRComm 1000

Industrial Relations Commission New South Wales Medium Neutral Citation: McIntyre v Commissioner of Police [2023] NSWIRComm 1000 Hearing dates: 21, 22 and 23 March, 20 and 21 April 2022 Date of orders: 12 January 2023 Decision date: 12 January 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The application is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Police – Removal - Incapable of discharging duties Legislation Cited: Police Act 1990, ss 181D, 181E, 181F Industrial Relations Act 1996 Cases Cited: Police Service Board v Morris and Martin (1985) 156 CLR 397 Commissioner of Police v Eaton (2013) 252 CLR 1 Category: Principal judgment Parties: Douglas McIntyre Commissioner of Police Representation: Counsel: M Watts (respondent)

Solicitors: Kingston Reid (respondent)

Other: D McIntyre (self-represented) File Number(s): 2021/133113 Publication restriction: Nil

decision

Overview of application 1. The applicant is a 56-year-old man. He attended the NSW Police Force college for training in late 1996 and attested as a Probationary Constable on 14 February 1997. He worked in a single Command for almost all his time as a police officer, being the Hills Local Area Command ("Hills LAC"). 2. Prior to becoming a police officer, the applicant had been employed by the NSW Police Force in a civilian capacity for approximately 10 years. 3. Working for the NSW Police Force was a very substantial part of the applicant's life, and the overwhelming portion of his working life. 4. As the applicant had reached 55 years of age when the Commissioner removed him from the NSW Police Force, he is legally considered to have retired. However, it is clear from his evidence that he wished to continue working as a police officer for at least several more years. 5. During the applicant's career as a police officer he had been the subject of a number of disciplinary issues, but there were also commendations, letters of support from police officer colleagues, and expressions of gratitude from members of the public. Until late 2013 there does not appear to have been any suggestion the applicant risked being involuntarily removed from the NSW Police Force. 6. The evidence of the applicant is that from approximately December 2013, and continuing for approximately 3 years, the applicant's then commanding officer, who had command of the Hills LAC ("the Hills Commander"), made a series of comments to the applicant. The effect of these comments was that the applicant was not capable of performing the job of a constable of police, that for his own sake the applicant should resign from the NSW Police Force rather than risk being involuntarily removed. Further, if the applicant did not resign, the Hills Commander would initiate the process to remove the applicant from the NSW Police Force. 7. The Hills Commander may have intended his comments to be in the best interests of the applicant, but the evidence is clear that they were not understood by the applicant in that context. 8. Moreover, the applicant's detailed and specific evidence, which was subjected to only minor challenges as to the Hills Commander's intent, and which evidence was not contradicted by evidence from the respondent, was of a series of interactions between the applicant, the Hills Commander, and others, which could fairly be described as bullying of the applicant. 9. On 17 September 2015, the then Commissioner of Police served the applicant with a notice pursuant to s 181D to show cause why the applicant should not be removed from the NSW Police Force. Having received the applicant's response to that "show cause" notice, the Commissioner of Police did not remove the applicant from the NSW Police Force, expressing that he had not lost confidence in the applicant. 10. The Commissioner of Police did however issue the applicant with a Commissioner's Warning Notice, on 18 April 2016, expressing that the applicant was effectively on a final warning in these terms: "I, Andrew Phillip Scipione, Commissioner of Police, have considered your conduct, competence, performance and integrity, in accordance with section 181D of the Police Act 1990, to determine whether I have confidence in you as a member of the New South Wales Police Force. On this occasion I have determined that I have not lost confidence in you. In making this determination and in accordance with the relevant legislation, I have taken into account a Notice, pursuant to section 181D(3)(a) of the Police Act 1990, and supporting documentation, which were served on you on 18 September 2015. I have also taken into account the written response provided to me through your solicitor in response to the grounds set out in my Notice. I have given a great deal of thought to this matter and, after considering all the circumstances, I have determined that I will issue you with a written warning. I refer you to the facts and circumstances that are outlined in detail in my Notice, and are not repeated here. In brief, it has been alleged that: [Nine summary allegations were listed] I found these allegations to be particularly alarming in the context of your disciplinary history, which I summarise as follows: [Twelve historical disciplinary events were summarised] I am extremely concerned by both the allegations set out in my Notice and your significant disciplinary history. In view of your disciplinary history, I hold grave concerns that you have consistently demonstrated an inability to meet the standards of performance, conduct and competence that I expect from a sworn police officer. I have reviewed your Response in detail. You admit several of the allegations set out in my Notice. However, you deny that you failed to investigate the matters set out in Allegations 3, 6, 7 and 9 in a timely manner. You submit that you conducted extensive and timely enquiries, though you acknowledge these enquiries were not reflected in the information recorded in COPS. You admit that you failed to record your attempts to contact victims and witnesses. You accept that you should have actioned Cases to better reflect how the matters had been progressed. However, I am concerned that you fail to demonstrate insight into the potential consequences of these failures to record actions. I am concerned that a sworn police officer with 18 years of service continues to fail to meet the standards of performance and competence expected of a Constable of Police. I find this particularly concerning in light of the extensive opportunities provided to you throughout your career to assist you to reach and maintain the standards expected. In this regard, you submit that the various programs you have been placed on throughout your career were mismanaged and you believe you were not adequately supported. You believe that senior management of The Hills Local Area Command have had no regard for your welfare. I find your submission in this regard to be very disappointing as throughout your 18 year career, you have regularly been provided with the opportunity to improve and every effort has been made to assist you. I am disappointed that you have demonstrated little appreciation for the efforts made by others to assist you. You were provided the assistance of several officers, each of whom endeavoured to help you to improve your performance and competence. You have been counselled on numerous occasions and been subject to several remedial performance programs specifically designed to assist you to reach and maintain the standards expected. I am particularly concerned that despite all these efforts, the same issues have consistently arisen. I have given careful consideration to the character references you attached to your Response. I note that several of the references compliment your communication skills, your professionalism and your willingness to assist others. While these are admirable qualities, it is imperative that all sworn police officers perform their duties to the highest standards. I provide this Warning Notice to you to outline that, while I still have confidence in you as a police officer at this time, I still hold significant residual concerns about your performance, competence, conduct and integrity, which you must address immediately. In particular, it is critical that you immediately start taking more responsibility for the professional performance of your duties, in accordance with the standards that I expect all sworn officers to meet. You should be under no misapprehension that you are being provided a final opportunity to demonstrate that you can perform your duties to the standards expected by the community and the NSW Police Force. You have already received two Commander's Warning Notices in which you were clearly warned that any continued unsatisfactory conduct and/or performance may result in removal. I want you to clearly understand that I will not tolerate any further failures to comply with the required standards of a police officer. You should be aware that any future failures may result in your removal under the provisions of section 181D of the Police Act 1990. Due to the seriousness of the matters raised in my Warning Notice to you, your Commander is also considering other management action as an adjunct to my written warning." 1. The applicant was also subject to reviewable disciplinary action pursuant to s 175, which following proceedings for review in the New South Wales Industrial Relations Commission ("IRC"), resulted in the applicant being transferred to Parramatta Command, effective 17 March 2017. 2. By this time, the applicant had developed serious medical issues, which ultimately caused the applicant to require open heart surgery. The applicant's personal evidence was that these medical issues were caused by the bullying he had been subject to at the Hills Command, and some of the medical certificates in the materials filed with the IRC appear to support this evidence. However, these medical certificates were not put in evidence in a way which formally allows this conclusion. At the least, the applicant's experiences during his later time at the Hills Command must have exacerbated the applicant's medical issues. 3. The applicant's surgery and recovery resulted in the applicant performing alternative, non-operational duties for almost two years after his transfer to Parramatta. The applicant was subject to a performance improvement plan during this period, out of which he was assessed as satisfactory. As the applicant was performing alternative, non-operational duties, this plan necessarily had limitations. 4. From approximately February 2019, with the applicant medically certified to return to operational duties, the senior officers at Parramatta Command assigned the applicant a mentor who was tasked with assisting the applicant both "getting up to speed" with the tasks of an operational police officer, and transitioning back to that role, given he had been on alternative duties for a lengthy period. 5. The assessment of the mentor was not positive, and this led the Parramatta Commander, Superintendent Boon, to require the applicant to undertake a series of performance improvement processes. Ultimately, Superintendent Boon's assessment was that the applicant could not perform the duties of a police officer to the required standard and the applicant was served with a second show cause notice, pursuant to s 181D, as to why he should not be removed from the NSW Police Force. 6. Following receipt and consideration of the applicant's response to that show cause notice, the Commissioner of Police removed the applicant from the NSW Police Force on 27 April 2021. 7. The Commissioner of Police says that, following the structure of Division 1B, the applicant was removed for reasons that are proper, relevant, and demonstrated by the material in the Commissioner's Confidence Bundle, and the reasons given by the then Commissioner when removing the applicant form the NSW Police Force. The Commissioner submits that nothing in the evidence before the IRC rises to the point where the applicant can establish that his removal was harsh, unreasonable or unjust. 8. The applicant says that from the moment he was bullied, and in his words "abused and neglected", by the Hills Commander, he was set up to fail. He says that on being transferred to Parramatta Command he was subjected to further, continuing, and continuous bullying, rendering the process leading to his removal incapable of being fair. 9. The Commissioner of Police, in answer to the applicant's case, says that even if the removal is unfair, the applicant's own evidence shows that it would not be appropriate for the IRC to order the Commissioner of Police to reinstate or re-employ the applicant.