Dare v Commissioner of Police [2024] NSWIRComm 1037

Industrial Relations Commission New South Wales Medium Neutral Citation: Dare v Commissioner of Police [2024] NSWIRComm 1037 Hearing dates: 18, 19 and 20 December 2023 Date of orders: 20 June 2024 Decision date: 20 June 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The application for review is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Police — Removal review — Public interest — Sexual harassment Legislation Cited: Anti-Discrimination Act 1977, ss 22A, 22B Crimes Act 1900, s 61 Industrial Relations Act 1996, ss 84, 146 Police Act 1990, ss 7, 181D, 181E, 181F Police Regulation 2015, c 9 Cases Cited: Commissioner of Police v Easton [2013] HCA 2 Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Category: Principal judgment Parties: Ryan Dare (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr G Doherty (Applicant) Ms P Bindon (Respondent)

Solicitors: Walter Madden Jenkins (Applicant) Kingston Reid (Respondent) File Number(s): 2023/00178959 Publication restriction: Nil

decision

Summary 1. This is an application by a former police officer pursuant to s 181E of the Police Act 1990 (Police Act), against an order of the Commissioner of Police removing the applicant from the New South Wales Police Force (NSW Police Force). The removal occurred by order, pursuant to s 181D of the Police Act, dated 25 May 2023 and served on the applicant on 26 May 2023 (the 181D Order). 2. The applicant applies to have the Industrial Relations Commission (Commission) determine that the 181D Order against him was harsh, unreasonable or unjust, and to revoke the 181D Order. 3. The 181D Order centred on conduct of the applicant over one evening at a social event at a private home, and later at a local hotel, with other police officers. The central issue in the 181D Order was an allegation that the applicant sexually harassed a more junior police officer (the victim), conduct which was admitted by the applicant (the misconduct). 4. The applicant is a 42-year-old man. After completing Year 12, he studied law and marketing degrees at the University of Western Sydney. After completing university, the applicant worked for about 18 months as a recruitment consultant. 5. In 2009, the applicant applied to join the NSW Police Force. He commenced studies at the NSW Police College in January 2010, attesting as a Probationary Constable on 27 August 2010. He was confirmed in the rank of Constable on 26 August 2011. 6. The applicant was initially stationed at the Manly Local Area Command and later at the Northern Beaches Local Area Command. The applicant served in the Northern Beaches area of Sydney for the bulk of his police career. 7. During his service as a police officer, the applicant received a number of commendations and complimentary remarks. Prior to the events which ultimately led to his removal there were two occasions on which the applicant had come to the attention of Police Command in a negative way. Both resulted in counselling, and neither appeared particularly serious. 8. After the events which led to his eventual removal there were two, apparently more serious, occasions on which the applicant came to the attention of Police Command. One of these resulted in a commander's warning and a three-month conduct management plan, which are non-reviewable disciplinary actions under the Police Act. 9. Four years after being confirmed as a Constable, the applicant was promoted to Senior Constable and two years later to Leading Senior Constable. While he held the rank of Leading Senior Constable, the applicant relieved as an Acting Sergeant and shift supervisor on two occasions. 10. Almost immediately following the events which ultimately led to his removal, the applicant's Leading Senior Constable designation was removed. From then until his removal the applicant held the rank of Senior Constable. 11. A large volume of material in the form of witness statements and documents was filed in this matter, and a significant portion of that material was admitted as evidence in the proceeding. Very little of this material was new in the sense that it had not been presented to the Commissioner of Police, and almost none of it was new in the sense that it came into existence after the Commissioner made the 181D Order. 12. Before the Commission, it was expressly the position of the applicant that he accepted that the misconduct had occurred and that the misconduct constituted sexual harassment. 13. Part of the misconduct was the subject of proceedings in the Local Court, and subsequently the District Court. The applicant pleaded guilty to common assault, and was sentenced to a Conditional Release, with no conviction recorded. 14. It is not necessary to set out the minutiae of the misconduct, as the allegation in the 181D Order summarises the substance, and that allegation is accepted by the applicant. 15. What is in issue in the proceedings is whether in all of the circumstances the misconduct should properly have led to the applicant's removal from the NSW Police Force.