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. Structure of the Decision 1. It is trite that proceedings in the IRC pursuant to Division 1C of Part 9 of the Police Act 1990 are to follow a specific course. In particular, proceedings must proceed via a three-step process set out in s 181F(1), and are subject to the overriding requirement that the applicant bears the legal burden to establish a basis for his appeal to be allowed. 2. As the Respondent's Outline set out: "13. The Commission, in conducting this review under s 181E of the Police Act, is required to consider three matters in sequence, pursuant to s 181F(1): a. firstly, the Respondent's reasons for removing the Applicant, as set out in the Order made under s 181D of the Police Act. b. secondly, the case presented by the Applicant as to why the removal is harsh, unreasonable or unjust: and c. finally, the case presented by the Respondent in answer to the Applicant's case. 14. The Applicant, at all times, bears the onus of establishing that his removal from the NSWPF was harsh, unreasonable or unjust. As the authorities make clear, this distinguishes these review proceedings from unfair dismissal proceedings under the Industrial Relations Act 1996 (IR Act). In those proceedings, it is for an employer to prove the misconduct they rely on in dismissing an employee. Here, the operation of ss 181F(1) and (2) of the Police Act requires an applicant for review to, in effect, disprove (or at the very least, cast sufficient doubt upon) the findings of misconduct in the s 181D order." (Emphasis in original; Footnotes omitted) 1. The applicant represented himself in the proceedings in this matter and did not address his submission or evidence strictly in accordance with the structure of s181F(1). 2. While this is of course understandable, it does not enable reasons for decision to follow a more usual approach in which the applicant's and the respondent's submissions are each set out and analysed before arriving at a decision. 3. Instead, these reasons have largely adopted the structure of the respondent's submissions. Other than as set out, the submissions of the respondent are accepted by the IRC as correctly identifying the applicable law, and the process for applying that law to the circumstances of this application. 4. The submissions and evidence of the applicant, relevant at each point, are set out and addressed within that structure. The application 1. The respondent's oral submissions followed a written outline of submissions ("Respondent's Outline") formally filed by the respondent on 19 April 2022. The respondent's outline began by addressing events leading to the application to the IRC and setting out a high-level summary of the respondent's position: "1. The Applicant … seeks review of a decision by the Respondent, the Commissioner of Police, pursuant to s 181E of the Police Act 1990 (Police Act), to remove him as a police officer in the NSW Police Force (NSWPF) on the grounds of his conduct, integrity, performance and competence. 2. The Respondent's loss of confidence in the Applicant was premised on 13 findings of misconduct, lack of integrity, poor performance and incompetence on the part of the Applicant. The Applicant has not challenged these findings. 3. In summary, the Respondent determined that the Applicant had: a. failed to provide a satisfactory level of customer service on multiple occasions; b. failed to investigate matters in a timely manner, or at all, on multiple occasions; c. neglected his duties in relation to matters reported to him on multiple occasions; d. failed to comply, or at least promptly comply, with a lawful direction from a superior officer on multiple occasions; and e. been untruthful, or at least, less than fully frank, with a member of the public. 4. The Respondent was satisfied these acts and omissions amounted to a contravention of various statutory provisions, as well as policies and procedures of the NSWPF. 5. Importantly, these findings were made in the context of the Applicant engaging in misconduct and unsatisfactory performance of a similar nature over many years. Despite having been afforded myriad opportunities and support to improve, the misconduct and unsatisfactory performance continued unabated, with the Applicant repeatedly demonstrating an inability to perform even the most basic of policing functions. … 7. The Respondent had a sound basis to lose confidence in the Applicant. Contrary to the Applicant's sole contention in this proceeding, removal was a proportionate outcome to the Applicant's misconduct and unsatisfactory performance. Further, and in any event, the Applicant's medical evidence makes plain that he is incapable of performing policing duties, rendering reinstatement and re-employment impracticable." (Emphasis in original) 1. It should be stated at the outset that the applicant accepted that he had not met the work standards expected of a police officer. 2. The applicant's position was that a lack of proper support from the police command, unrealistic workloads and neglect, mistreatment and outright bullying by police command were the cause of his failure to meet the work standards expected of a police officer. The Commissioner's reasons for removal 1. These are succinctly summarised in paragraph 2 and 3 of the Respondent's Outline, set out in full at [26] above. 2. As to the view the IRC should take of these reasons, the Respondent's Outline submitted that: "15. The starting point of the Commission's consideration is the Respondent's Order. It is the centrepiece of the statutory scheme in Div 1C of Part 9 of the Police Act. The Order is the product of a legislative regime mandating that the Respondent take into account certain matters before making a decision and publishing reasons. The Respondent is not required to prove or substantiate those reasons at all. 16. In view of the case the Applicant has presented in these proceedings, … the Respondent's Order only requires limited attention. 17. … the Respondent removed the Applicant from the NSWPF on 13 grounds. ... It suffices to say that many of them involved the Applicant neglecting his fundamental duty as a police officer to detect and investigate crime, resulting in him providing entirely substandard service to various victims. It also involved the Applicant disobeying, or at least ignoring, lawful directions issued to him by officers superior in rank. As outlined in detail in the Order, the Respondent was satisfied this behaviour amounted to various contraventions of the Police Act and the NSW Police Force Code of Conduct and Ethics, amongst other policies. 18. In the Order, the Respondent went to great lengths to set out the Applicant's disciplinary history. Plainly, that was designed to contextualise the findings of misconduct and unsatisfactory performance that followed. The Respondent otherwise set out that the disciplinary history, along with the multiple opportunities afforded to the Applicant to improve, the Applicant's lack of insight, and his failure to accept any personal responsibility for his admitted failings, all contributed to the Respondent's loss of confidence. While the Respondent had regard to the Applicant's health issues and career history, these were not sufficient to mitigate against the conclusion that removal was the appropriate outcome. 19. The Commission's consideration of the Order must be considered in the context of s 181D of the Police Act. This power is concerned with ensuring police officers perform their sworn duties and enforce the statutory mission and functions of the NSWPF. In Police Service Board v Morris and Martin (1985) 156 CLR 397, Brennan J stated (at 412): The effectiveness of the police in protecting the community rests heavily upon the community's confidence in the integrity of the members of the police force, upon their assiduous performance of duty and upon the judicious exercise of their powers. Internal disciplinary authority over members of the police force is a means - the primary and usual means - of ensuring that individual police officers do not jeopardise public confidence by their conduct, nor neglect the performance of their police duty, nor abuse their powers. The purpose of police discipline is the maintenance of public confidence in the police force, of the self-esteem of police officers and of efficiency. 20. Further, the Full Bench of this Commission has acknowledged that the Order and the [Commissioner's Confidence] documents relied upon by the Respondent in coming to their decision must be given appropriate weight. The Commission should also have regard to the plurality of the High Court in [Commissioner of Police v Eaton (2013) 252 CLR 1], where it was observed: [76] … Part 9 [of the Police Act] maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of the public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force..." (Emphasis in original; Footnotes omitted) 1. Simply put, the Commissioner's reasons are that the applicant did not perform his duties as a police officer to even the minimum standards of work expected of a police officer. 2. The applicant addressed the reasons of the respondent in ways which varied through the course of his evidence and submissions. I consider that, taken in totality, the applicant did not seriously deny that his performance as police officer was below that required. His position can be fairly summarised from a portion of his oral evidence in chief [1] , where his evidence was that: "No police officer is perfect and I certainly was never a - was not a perfect police officer. I had my faults and as I have agreed in certain circumstances when certain periods of my disciplinary history that I had fallen down in some matters, that my time management isn't or wasn't as good as it should have been, that my performance, as I sit here, with respect, Commissioner, and advise, tell you, was poor or wasn't to the standard required. Every constable to a certain degree is not perfect in this regard but certainly from the point of 2013 onwards it's the neglect, the mistreatment, the bullying of me by command management at The Hills and Parramatta that have caused me to fail at my duties at Parramatta and become subject of this 181D removal by the Commissioner." 1. In considering the reasons of the Commissioner for the decision to remove the applicant, the evidence before the IRC was clear, even without consideration of the onus on the applicant. No doubt was seriously cast on the reasons. It must be concluded those reasons were sound and a proper basis existed for them. 2. In this matter, despite the onus borne by the applicant, that does not conclude the application. This is because the fairness of the decision is challenged based on what the applicant says are the surrounding circumstances which caused him not to be able to meet those standards, and which he further says are the result of conduct of the NSW Police Force, not of the applicant. The case presented by the applicant 1. The Respondent's Outline in my view succinctly captures the applicant's case: "24. [T]he Applicant's case before this Commission can, in summary, be described as multiple allegations of bullying made against various police officers over a period of around a decade. In his oral evidence, the Applicant described his complaints of bullying and neglect as the overwhelming reason why he had brought his Application. In short, his primary contention is that the bullying he says he was subjected to was the cause of the misconduct and unsatisfactory performance particularised in the Order." 1. The applicant's case covered nearly a decade and, as already summarised in [18] and [26] above, essentially relies on a decade of bullying, mistreatment, lack of proper support to explain why his failure to perform his work at the required level was the fault of the NSW Police Force, and not an outcome of his own making. 2. The applicant filed two written statements. One was made on 31 January 2022, and consisted of 240 paragraphs over 74 pages, plus 235 pages of annexures and one was made on 11 March 2022 and consisted of 39 paragraphs over 9 pages, plus 260 pages of annexures. He gave oral evidence, which through evidence in chief given in a largely narrative form as he was self-represented, and cross examination extended over more than two days. 3. I do not wish to this to reflect overly negatively on the applicant, who was representing himself and was clearly unfamiliar and uncomfortable with the processes of the IRC, but large parts of the evidence of the applicant were repetitive, and on occasions egregiously so. 4. I do not consider it is necessary to recite or even summarise the bulk of the evidence of the applicant about the last decade of his employment with the NSW Police Force. I had the benefit of hearing the applicant's evidence and re-reading it more than once in reaching a decision in this matter. 5. It is sufficient to summarise the applicant's evidence from prior to his transfer to the Parramatta LAC as follows: 1. The Superintendent in charge of the Hills LAC raised his concerns about the applicant's performance of his duties directly with the applicant on many occasions; 2. It is apparent that those concerns were raised in a way which might, as neutrally as possible, be described as direct and unvarnished. It is possible to understand from the applicant's evidence that it was the superintendent's intention that the applicant clearly understand that his performance was such that he risked being removed from the New South Wales Police Force, and that it may be in the applicant's best interest to resign before that removal could occur; 3. It is nevertheless clear that from the applicant's perspective that the superintendent's manner contained no element of useful concern for the applicant's well-being and in the end amounted to a campaign which the applicant regarded as an attempt to bully him into resignation 4. In accordance with the expressed misgivings of the superintendent, the applicant's performance reached the point where a show cause notice, being the final step prior to a decision to remove a police officer, was sent formally sent to the applicant; 5. The applicant's response to the show cause letter set out the reasons why he believed his performance did not warrant removal, and set out in considerable detail allegations of conduct by the superintendent which the applicant considered to be bullying behaviour; and 6. Ultimately the Commissioner did not conclude that he had lost confidence the applicant at that time. The Commissioner of Police however effectively placed the applicant on the final warning through the issuing of a Commissioner's Warning Notice. 1. It was never specifically and completely put in evidence why the earlier process did not lead to the Commissioner of Police expressing that he had lost confidence in the applicant as a police officer. Whatever that reason that earlier process ended with the applicant being transferred to a different LAC, that is, being given a fresh start at a new location with new management. 2. The applicant's position was that the fresh start was entirely illusory and in fact the NSW Police Force continued to "neglect and bully" him, just in a different local command via the conduct of different, but equally malevolent, superior officers. 3. In respect of his time at Parramatta LAC the applicant gave lengthy evidence as to why he was unable to meet the required standard of work. Unfortunately, the evidence was convoluted, not rationally ordered and often overlapping or repetitive. It was largely to the effect that: 1. He was not assigned to do the work which he should have been assigned based on decisions of the IRC, or based on his medical capacity; 2. He was assigned more work than was possible to have been done in the time available; 3. He was not afforded shifts to complete paperwork generated during busy front counter work dealing with members of the public; and 4. He was bullied and neglected by his superior officers. 1. To find for the applicant it would be necessary to conclude that over a period of a decade, at two different local commands, and under the direct and indirect supervision of over a dozen named superior officers, the applicant was at least neglectfully supervised and was managed in a manner which prevented him performing his duties to the required standard. 2. While there was a basis to, at the least, raise serious questions about the management of the applicant during his time at The Hills LAC, it was difficult, even on the applicant's own evidence, to conclude that such issues continued to hamper him once he had moved to Parramatta LAC. 3. The applicant's own evidence about his time at the Parramatta LAC did not persuade me that he had focused on the opportunity to prove his capacity in the new environment. Rather, his evidence was that of a man focused on past wrongs and on barriers he believed were created by the NSW Police Force. Two key examples demonstrate this conclusion. 4. Firstly, the applicant gave evidence that soon after his arrival at Parramatta LAC he had a conversation which he described in his witness statement of 31 January 2022 as follows: "139. In mid May 2017 I was summoned to the Commanders Office where I was met by Acting Superintendent Radmore and the Crime Manager Inspector Element. Acting Superintendent Radmore welcomed me to Parramatta PAC and advised that I had been transferred to the position of custody assist, but would be placed on administration/office only duties because of my medical restrictions. Acting Superintendent Radmore told me that the Parramatta LAC management team didn't know the details of management action against me at the Hills LAC and that "we don't want to know" and "we are not interested" and "we don't care about what happened at Castle Hill". Acting Superintendent Radmore also told me, "that's in the past now", "we want you to put that behind you" and that I should treat this as an "opportunity to make a fresh start" and "to move forward with your career". Acting Superintendent Ms Radmore stated I would also have to be "put on a plan" and placed in suitable duties, but that due to my upcoming open-heart surgery and recovery period on sick report that the plan and my placement in suitable duties would be determined by LAC management after I returned to work in the future. 140. While I had been told twice in 2016 by Chief Inspector Fowler that it was an IRP recommendation that I be placed on a conduct management plan, it was completely disingenuous, unnecessary and harmful to me to be advised by the Commander at my new PAC that she did not know and did not care about the management action taken against me at my previous PAC and that I should put it behind me and make a fresh start and move forward with my career, but then tell me in the same breath that I would be "put on a plan" that could only have arisen out of the management action previously taken against me at the Hills LAC? Why did Acting Superintendent Radmore do that? At this moment I felt a sinking feeling in my stomach. I feared that Acting Superintendent Radmore and management at Parramatta LAC were being duplicitous in their treatment of me in my first official meeting welcoming me to the LAC. I feared that this was an indication that I could be mistreated and neglected by my superiors at Parramatta LAC in the future." 1. As I put to the applicant during his closing submissions, I frankly find it hard to place the same "duplicitous" interpretation on Superintendent Radmore's comments as does the applicant. As I also put to the applicant during closing submissions, it is indeed hard to see how Superintendent Radmore could have said anything more appropriate to him than: " … "we don't want to know" and "we are not interested" and "we don't care about what happened at Castle Hill". Acting Superintendent Radmore also told me, "that's in the past now", "we want you to put that behind you" and that I should treat this as an "opportunity to make a fresh start" and "to move forward with your career"." 1. It is unfortunately inescapable that the reaction of the applicant can only properly be understood as a demonstration that there was nothing the NSW Police Force could have done by then that would not have elicited a response from the applicant that the NSW Police Force was bullying him. 2. Secondly, it is instructive to note that, writing in January 2022, in his witness statement of 31 January 2022, the applicant describes his view of events from December 2013 in the following terms: "8. Superintendent Critchlow threatened me prior to the commencement of an internal investigation of me that if I did not resign, I would suffer the negative psychological effects of a length investigative process, then be removed from the Police Force by the Commissioner because of that investigation and then suffer the ignominy of having to declare on my CV to any prospective future employer that I had been sacked from the NSW Police Force. … I believe he did not at any time have any consideration for my welfare during this incident in his office. These were the thoughts and feelings and conclusions I had already come to realise before he allowed me to leave his office. He abused his rank, position and power over my ongoing employment to force me to resign. He had, in fact, irreversibly corrupted the process of disciplinary action against me. I was extremely fearful, although I did not show it. From this point I believed that everything that occurred involving me in the workplace from this point on would be negatively tainted by this incident and that I didn't deserve it. I believe subsequent events have proved this to be the case. 9. . Every day I've spent in the NSW Police since this day, whether on duty or off duty, my mind has been filled with dread and foreboding that would be bullied or mistreated again at any time when it suited a person in authority to do so. … Now I was already the victim of a biased determination and bullying and I had no reason to expect that I would ever again be afforded fair and reasonable treatment by the Superintendent or the LAC upper management or by any other superior officer anywhere else in the SW Police Force. … I believed I would continue to be bullied and mistreated in the workplace by my superiors in the NSW Police Force. How was I supposed to approach the rest of my service in the NSW Police with any confidence after this day?" 1. I have already set out that the evidence is clear that the applicant did not meet the required work standards, and he has acknowledged as much. The inescapable impression from the applicant's own evidence is that he was so focused on the events of the past that he simply did not take the opportunity of a "fresh start" to focus on demonstrating his capacity to perform his duties to the required standard. 2. The two key reasons set out above from [47] to [51] illustrate why the case put by the applicant has failed to raise issues which would require the Commissioner of Police to be put to the task of responding, lest the removal of the applicant be at risk of being found to be unfair. The case presented by the respondent in answer 1. To the extent that the applicant had raised any issues which could be categorised as matters for consideration under s 181F(1)(b), the evidence of Superintendent Boon put to rest any suggestion the IRC could find the removal of the applicant unfair. 2. I consider that the Respondent's Outline fairly summarised the effect of Superintendent Boon's evidence as follows: "35. … : a) the findings against the Applicant, coupled with the extensive disciplinary history and performance management of the Applicant, defeats the Applicant's claim and supports the Respondent's loss of confidence in the Applicant; b) the Applicant received an "extraordinarily unusual" level of assistance, supervision and support in performing his duties over a long period, which included being afforded shifts where he was to perform no duties other than to clear his backlog of work (shifts rarely given to other officers), without any discernible improvement; [2] c) in spite of the assistance given to the Applicant to make the most of the 'second chance' he was given by the Respondent in 2016, he spurned that opportunity by routinely demonstrating an inability to perform basic tasks required of a police officer; d) contrary to the Applicant's assertions in these proceedings, he was not carrying a heavy workload at any stage in 2018 or 2019 [3] , nor did he ever raise any allegations of bullying or mistreatment [4] , which might have allowed the Respondent to take action to address those matters; and e) to allow the Applicant to continue performing policing duties, in view of his lack of aptitude and competence, would place members of the public at risk. [5] " (Emphasis in original; Footnotes omitted) 1. As already indicated, the items set out in [54] above are an accurate summary of the evidence of Superintendent Boon. They are also a direct and persuasive response to the case put by the applicant concerning his time working at Parramatta LAC. 2. I agree with the Respondent's Outline which, in referring to the matters set out in [54] above, submitted that: "36. Even if the Applicant were to cast doubt upon the Order as part of his case, the above factors put beyond doubt that the removal was not harsh, unjust or unreasonable." Applicant's interest and the public interest 1. Section 181F(3) of the Police Act requires that in making a decision pursuant to Division 1C, the IRC must have regard to the interest of the applicant and the public interest. 2. In respect of the latter the Police Act sets out that the public interest is "… taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)." 3. To the extent the interests of the applicant could require a fair process for assessment of his work capacity, and a fair opportunity to understand and improve any deficiencies, the totality of the evidence is that those interests were observed at length by the NSW Police Force. The applicant was given reasons for his removal, and those reason had a basis in fact. He was given an opportunity to make out a defence or explanation to the basis for his removal, and he took that opportunity. 4. In terms of the outcome of removal, and its impact on the interests of the applicant, the respondent's submission, summarised in the Respondent's Outline, was that: "39. The Applicant … presents no case as to why removal will be harsh. The Respondent accepts that, at age 56, removal will have a greater impact on the Applicant, who may find it more difficult to find alternative employment. That said, the Applicant has led no evidence of having even attempted to find alternative employment, and indeed, his medical evidence appears to preclude the Applicant working in many (if any) professions regardless, consistent with the Applicant's evidence that he has received an insured benefit for being totally and permanently disabled. 40. It also goes without saying that removal results in a loss of income for the Applicant, and that this will have adverse consequences for his economic circumstances. However, there is no evidence on which the Commission could accurately assess the magnitude of the financial impact on the Applicant. There is equally no explanation for the absence of any of this evidence. In cross-examination, the Applicant stated he currently receives 55-60% of his weekly wages as a result of income protection insurance, which, along with the total and permanent disablement payment that he has received, reduces any economic impact." (Footnotes omitted) 1. The evidence of Superintendent Boon, which I have accepted, and the evidence of the applicant himself, was that the applicant did not perform his duties to the standard required. Given that conclusion, the findings set out generally above, and the matters which are taken by the Police Act to be included in the public interest, the public interest in not displacing the order of the Commissioner of Police to remove the applicant is overwhelming. Other matters 1. There are two other matters which should be addressed for completeness. 2. The first of these was a proposition put to the applicant by the Commissioner of Police on a number of occasions to the effect that police rules and regulations require a police officer who is aware of misconduct to report that misconduct. Further, a failure to make that report is, in itself, misconduct of the party failing to make the report. This, devoid of context, might appear a reasonable proposition. 3. However, the proposition was put in the context of an assertion that the applicant had misconducted himself by failing to report that he had been bullied. 4. During the hearing of this matter, I expressed surprise that a proposition of this nature could be put to an employee. I remain surprised that the response to allegations of bullying would be to allege misconduct by the victim of that bullying because the victim has not reported their bully. 5. Moreover, in this case, significant portions of the bullying conduct were unambiguously reported, in considerable detail, in the applicant's response to the earlier show cause notice. What indeed was missing from the evidence was even an acknowledgement by the Commissioner of Police of the reporting of those detailed and specific allegations. 6. To the extent it was submitted the IRC should conclude that the applicant had misconducted himself by a failure to report his allegations of bullying, I explicitly reject that submission. 7. The second item which requires addressing relates to a written complaint made by the applicant some three weeks after the last hearing date in this matter. 8. In substance that complaint was an allegation that Superintendent Boon was coached during her oral evidence to the IRC. The detail of the allegation was that another employee of the Commissioner had engaged in coaching Superintendent Boon by shaking his head to indicate that Superintendent Boon should answer in a particular way to a question being put to her at the time by the applicant. 9. The IRC did not observe any conduct during the cross examination of Superintendent Boon of the nature raised by the applicant. The letter of complaint acknowledges that the applicant did not raise the issue at the time he alleges it occurred. The applicant explains this by saying he was so shocked by the occurrence of the event. 10. Through an exchange of correspondence with the Registrar, the employee of the Commissioner alleged to have engaged in improper conduct emphatically denied any such conduct. 11. As already noted, the IRC did not observe any conduct of the nature alleged, and with the passage of time it is simply impossible that the IRC could conclude that any such conduct did occur. 12. It is important to record that Superintendent Boon presented as a direct, honest, and responsive witness. The IRC's observation of Superintendent Boon during her evidence, and in particular during cross examination, suggests that she would not have been influenced in the evidence she gave by any such conduct. 13. For the avoidance of any doubt the IRC does not make any finding about any attempt at coaching. There is simply no basis on which such a finding could be made. Order 1. The application is dismissed. C Muir Commissioner ********** Endnotes 1. Tcpt, 21 March 2022, p 12, (1-11) 2. Ex R6 at [46]-(47]. In cross-examination, the Applicant accepted that any Constable receiving these 'correspondence shifts' was rare. 3. Ex R6 at [57]-[58], [60]. 4. Ex R6 at [55]-[56]. 5. Ex R6 at [52]; [63]-[66]. 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: 12 January 2023