David Eaton and Commissioer of Police [2010] NSWIRComm 1035

Industrial Relations Commission of New South Wales

CITATION: David Eaton and Commissioer of Police [2010] NSWIRComm 1035

APPLICANT: David Grant Eaton PARTIES: RESPONDENT: Commissioner of Police

FILE NUMBER(S): IRC 1111 of 2009

CORAM: Bishop C

CATCHWORDS: UNFAIR DISMISSAL - Probationary police officer - jurisdictional issues formally raised re operation of s.80(3) of the Police Act - above average progress and ability displayed - subsequent allegations of deliberately disceiving two senior officers about workload - fundmental issue of officer's integrity raised - allowing a motor vehicle accident (MVA) to become statute barred - workload and time management issues - question as to adequacy of supervision - need for additional assistance and supervision identified - percieved deficiencies in Duty Book resulted in second failure of practical subject - automatic exclusion from Associate Diploma - veracity of previous good Duty Books raised - investigation - record of interview not verbatim account - officer placed on restricted Station duties 14 months - investigating officer found deception not intentional but misleading - MVA charge sustained - additional training and peformance management suggested - findings upheld on subsequent Quality Review by senior officer - findings not accepted by Commander - dismissal recommended - 14 months elapsed before final decision - further allegations raised in show cause notice not raised in interview - no adverse issues raised when performing restricted duties - issues with accuracy of record of inteview not raised by applicant until first witness statement - reinstatement sought. HELD - jurisdiction exists - application of current Commission decisions involving probationary police - decisions followed - promising officer - good opinions expressed by majority of witnesses - issues identified with MVA - not uncommon for probationers to have MVAs become statute barred - subsequent identification of other statute barred MVAs over 4 year period involving other officers - seven supevisory officers also MVA statute barred - unfair apportionment of blame and consequence on probationer - no intentional deception re workload - probationer acknowledged actions misleading and error of judgement - integrity issue not sustained - integrity not challenged when on restricted duties - Duty Book should have been passed - failure of supervision contributed to workload and time management issues - assistance not provided when need for such identified -various procedural issues raised - no interview of the two senior officers or any supervising officers as to Duty Books or workload issues - dismissal harsh and unjust and unreasonable in all the circumstances on substantive and procedural grounds - no barrier to reinstatement - held in good regard by peers- reinstatement ordered - subject to readmission to Associate Diploma - now eligible to reapply - back pay awarded but effective four months' suspension of pay imposed as penalty for misleading actions and not correcting record of interview - orders made.