Flanagan v Commissioner of Police [2010] NSWIRComm 7

Industrial Relations Commission of New South Wales

CITATION: Flanagan v Commissioner of Police [2010] NSWIRComm 7

PARTIES: Michael James Flanagan (Appellant) Commissioner of Police (Respondent)

FILE NUMBER(S): IRC 1151 of 2009

CORAM: Boland J President; Walton J Vice-President; Staff J

CATCHWORDS: POLICE - Police officer removed by Commissioner of Police - Officer involved in an off duty assault and found to have accessed Computerised Operational Policing System (COPS) without authority - Removal upheld at first instance - APPEAL - Whether police officer provoked by well known local criminal - Whether trial judge erred in finding officer was not provoked - Whether trial judge erred in failing to have regard to provocation as a mitigating factor - Whether access to COPS was unauthorised - Whether trial judge erred in finding police officer continued to access COPS after being interviewed about the unauthorised access - Whether there were mitigating circumstances in connection with unauthorised COPS access - Whether the trial judge erred in finding that had the unauthorised COPS access revealed any useful information, the police officer would have used it in his own interest - Whether the trial judge erred in respect of findings relating to the officer's prospects of rehabilitation - Whether the dismissal was harsh, unreasonable or unjust - Commission required under s 181F(3) of the Police Act 1990 to have regard to both the applicant's interest and the public interest is so that it may, in a judicial sense, weigh the respective interests in the balance, consider all the circumstances, and decide whether the removal of the police officer was harsh, unreasonable or unjust - Penalty of dismissal was harsh and unreasonable - Re-employment ordered.