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. Industrial Relations Act 1996 LEGISLATION CITED: Police Act 1990 Police Regulation 2008 Alexander v Commissioner of Police [2009] NSWIRComm 3 Bankstown City Council v Paris (1999) 93 IR 209 Byrne & Frew v Australian Airlines (1995) 61 IR 32 Commissioner of Police v Hanson (1995) unreported NSW Court of Appeal Cooper v Commissioner of Taxation (Cth) (2004) 139 FCR 205 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 Ferraris v Commissioner of Police [2006] NSWIRComm 243 Formston v New South Wales Police [2006] NSWIRComm 88 Hicks v Minister for Immigration & Multicultural & Indigineous Affairs [2003] FCA 757 Jarratt v Commissioner of Police (2005) 224 CLR 44 Jones v Dunkel (1959) 101 CLR 298 La Macchia v Minister for Primary Industry and Energy (1992) 110 ALR 201 Loty and Holloway v AWU [1971] AR (NSW) 95 Marr v Australian Telecommunications Corp (1991) 105 ALR 647 CASES CITED: McCabe v NSW Police Service [1996] NSWIRComm 105 National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 O'Rourke v Miller (1985) 156 CLR 342 Outboard World v Muir (1993) 51 IR 167 Owens v NSW Police Service (1998) 87 IR 1 Parfrey v Commissioner of Police [2010] NSWIRComm 19 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Police Association of New South wales (on behalf of Adam Tregonning) and New South Wales Police Service [200] NSWIRComm 14 Police Association of NSW v NSW Police (No. 3) (2005) NSWIRComm 243 Police Authority for Huddersfield v Watson [1947] 1 KB 842 Project Blue Sky v Australian Broadcasting Authority (1998) 94 CLR 355 Re Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 Sams v Contact Point International [2001] NSWIRComm 18 Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy [2009] NSWIRComm 126 Valentine v Eid (1992) 27 NSWLR 615 Warren v Department of Education and Training [2009] NSWIRComm 1032 HEARING DATES: 8/02/10, 9/02/10, 25/02/20 and 12/03/10 DATE OF JUDGMENT: 30 June 2010 APPLICANT: Ms P S Lowson of Counsel Solicitor: Mr M Treharne, Walter Maddern Jenkins Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr P Ginters of Counsel Solicitor: Ms G Gowland Bartier Perry Solicitors DECISION: 136 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 30 June 2010 Matter No IRC 1111 of 2009 David Grant Eaton and Commissioner of Police Application by David Grant Eaton re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2010] NSWIRComm 1035 1 This is an application by David John Eaton against the Commissioner of Police for a remedy pursuant to s.84 of the Industrial Relations Act 1996. Mr Eaton was dismissed from his position of Probationary Constable in the NSW Police Force by Order made pursuant to s.80(3) of the Police Act (NSW) 1990 issued by Assistant Commissioner Corboy on 22 July 2009 and effective as from that date. Mr Eaton had been stationed at Parramatta Police Station within the Parramatta Local Area Command (PLAC). He sought reinstatement to his former position. 2 The matter was listed for conciliation and directions before Commissioner Connor on the 20 August 2009 at which time conciliation took place. Further mentions occurred on the 26 August and 29 September 2009. As no settlement could be reached between the parties, directions as to the filing and exchange of witness statements were issued pursuant to Practice Direction 17 and the file returned to the Registry for future disposition. 3 The matter was allocated to the Commission as currently constituted and listed for hearing on the 8, 9, 25 February and 12 March 2010. 4 Ms Lowson, of Counsel, appeared on behalf of the applicant and called the following witnesses who had also filed witness statements: David Eaton.......................................applicant, (Exhibits 1 and 2), Sergeant Michael Bourke..................Supervisor -Team Leader Parramatta Police Station, (Exhibit 4) Detective Sergeant Ronald Prasad...Parramatta Police Station, (Exhibit 5) 5 Mr Ginters, of Counsel, appeared on behalf of the Commissioner of Police and called the following witnesses who had also filed witness statements: Superintendent Robert Redfern............Commander PLAC, (Exhibit 6) Sergeant Kylie Hedges.......................... Education Development Officer PLAC, (Exhibit 8) Senior Constable Meagan Latham........PLAC, (Exhibit 9) Sergeant Julianne Dunn........................Education Development Officer PLAC, (Exhibit 10) Senior Constable Peter Sardelich......... PLAC, (Exhibit 11) Sergeant David Fitzgerald.....................City Central Local Area Command, (Exhibit 12) Jurisdictional Issues 6 On 9 February 2010, at the commencement of the respondent's evidence, Mr Ginters raised, for the first time in this matter, jurisdictional issues being pressed by the respondent. The Commission was provided with the jurisdictional submissions made on behalf of the respondent in Parfrey v Commissioner of Police. A copy was also provided to Ms Lowson. However they were not formally tendered and the submissions of the Police Association in Parfrey were not before the Commission and only subsequently by way of the decision in Parfrey. 7 At that stage of these proceedings Grayson DP had reserved his decision in Parfrey. 8 Ms Lowson advised the Commission that her instructing Solicitors had received correspondence from the respondent's instructing Solicitors dated 24 December 2009 raising jurisdictional issues but without any description of why or what lay behind the assertions. By that time their client had already committed substantial funds, time and energy to putting on his evidence and was on the verge of receiving evidence from the respondent. 9 On 24 February 2010, the respondent filed an Outline of Submissions -re construction of section 80(3) of the Police Act 1990 (Exhibit 16). 10 On 12 March 2010, Mr Ginters made further oral submissions supplementing the written submissions as filed and in doing so took the Commission through the authorities as cited. 11 Those submissions dealt with s.80(3) of the Police Act which provides as follows: The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason. 12 Reliance was placed on Project Blue Sky v Australian Broadcasting Authority (1998) 94 CLR 355 in relation to statutory construction with respect to the words "at any time and without giving any reason". 13 Reliance was also placed on Jarrett v Commissioner of Police (2005) 224 CLR 44 where the High Court concluded that (then) s.51(1) of the Police Act, which provided a member of the New South Wales Police Executive may be removed from office "at any time", was conditional upon the observance of procedural fairness. 14 It was submitted that the language of s.80(3) admitted no ambiguity and the question that arose therefore was what role the Commission could play in assessing a s.80(3) dismissal. This question arose because there was tension between the statutory power granted to the respondent by the section and the range of matters that the Commission "may, if appropriate" take into account per s. 88 of the Act in determining whether a dismissal was harsh, unjust or unreasonable. 15 It was submitted that having regard to the power granted to the respondent by s.80(3), the Commission, in determining a Probationary Constable's claim, was not permitted to, or ought not, conduct a review of the merits of the s.80(3) decision, as to do so would require the Commission to form a judgement as to reasons underlying the Probationary Constable's dismissal. Such a process, leading as it may to the Commission overturning the respondent's merit decision, would render the s.80(3) power nugatory and give the words "at any time" and "without giving any reason" no real work to do . 16 Reference was made to the intention of the legislation to reserve to the respondent in the broadest terms the power to dismiss a Probationary Constable. The granting of the s.80(3) powers in the terms cast was consistent with the Police Act placing the issue of integrity "above all" (section 7(A)). In this respect the s.80(3) powers served an important public purpose. Reliance in this regard was placed on O'Rourke V Miller (1985) 156 CLR 342. 17 It was submitted that if the Commission were to review the merits of a s.80 (3) decision (other than in relation to the question of procedural fairness) the intractable language of the respondent's power to dismiss, and important public policy considerations which underline the exercise of that power, would be set at nought. Such a construction of the relationship between the s.80(3) of the Police Act and the Commission's jurisdiction pursuant to Chapter 2, Part 6 of the Act is one that would not find favour with the Commission. 18 It was submitted that the Order effecting Mr Eaton's dismissal made it clear that he was provided with reasons for his dismissal. The fact that this occurred did not speak to the question of the relationship between s.80(3) and the Commission's unfair dismissal jurisdiction. This was because it could not be the case that the respondent's position was compromised such that his decision to dismiss a Probationary Constable could be assessed differently by this Commission because, in exercising the s.80(3) power he provided reasons for the decision in the s.80(3) Order. The adoption of a different approach by the Commission in such cases would be properly regarded as being "absurd, extraordinary, capricious, irrational or obscure" (Cooper Brooks (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297). 19 It was further submitted that in the circumstances of the case presently before the Commission it could not be seriously contended that Mr Eaton was not afforded procedural fairness. He was interviewed, provided with an opportunity to address allegations, provided with a Notice foreshadowing his dismissal which set out in detail matters of concern, provided with an opportunity to provide a response to the foreshadowed Notice and was provided with detailed reasons as to why the Order for dismissal was made. 20 It was submitted that accordingly Mr Eaton's application ought to be dismissed. 21 Further written submissions were filed by the respondent on 8 March 2010 (Exhibit 15) by which time Grayson DP had handed down his reasons for decision in Parfrey v Commissioner of Police [2010] NSWIRComm 19, finding, inter alia, that the Commission had jurisdiction to entertain a s.84 unfair dismissal claim from a Probationary Constable. 22 In the written submissions as filed the respondent accepted that, as a matter of comity, the decision of Grayson DP would be followed by the Commission as currently constituted unless it considered that decision to be "clearly wrong" with the following authorities cited: Police Authority for Huddersfield v Watson [1947] 1 KB 842; Marr v Australian Telecommunications Corp (1991) 105 ALR 647; Valentine v Eid (1992) 27 NSWLR 15; La Macchia v Minister for Primary Industry and Energy (1992) 110 ALR 201 and Cooper v Commissioner of Taxation (Cth) (2004) 139 FCR 205. Reference was also made to Mitchforce v Starkey (No.2) [2003] NSWIRComm 458 in relation to the issue of comity. 23 It was also accepted by the respondent that in circumstances where a judge (or Deputy President) had decided a question of statutory construction the adoption of a conclusion by another judge (or tribunal member) that that construction is "clearly wrong" was not one that will be lightly reached, with Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 being cited. 24 In noting the above matters Mr Ginters, on behalf of the respondent, formally submitted that the decision of Grayson DP was wrong and that the Commission did not have jurisdiction to entertain Mr Eaton's claim. 25 Ms Lowson replied to the jurisdictional issues raised by the respondent in formal submissions at the conclusion of the hearing and as set out in the Applicant's Outline of Submissions as tendered (Exhibit 14). 26 Based on the respondent's acceptance of the position that as a matter of comity the Commission as currently constituted would adopt the findings of Grayson DP in Parfrey, Ms Lowson did not seek to make submissions beyond those made by the Police Association in Parfrey but reserved Mr Eaton's rights to make further submissions in the event that this issue was agitated in any subsequent hearings. 27 Ms Lowson submitted that the alternative submissions of the respondent that the Commission was restricted to only considering the issue of procedural fairness, although framed slightly differently, depended on the same approach to statutory construction as rejected in Parfrey. Further it was contrary to the decision of the Full Bench in Ferraris v Commissioner of Police [2006] NSWIRComm 243. Further if it had been the legislature's intention to restrict this Commission to undertaking only procedural fairness reviews of Probationary Constables dismissals then so much could have been made apparent either within the Police Act or within the Industrial Relations Act or the Regulations. Without those clear words then the issue had no weight as between an assessment of the two statutes. 28 Ms Lowson reserved the right to make further submissions in relation to procedural fairness issues in the event that the Commission upheld the respondent's argument. In the interim the following procedural flaws were raised: · The inordinate delay in investigating the matter, · The matters taken into account by Superintendent Redfern in deciding that Mr Eaton should be terminated that were never put to him and, · That as a probationary officer Mr Eaton was directed to participate in an interview where he was required to answer questions (and could not exercise the privilege against self-incrimination) in circumstances where the interview was not recorded contemporaneously and was edited by the interviewer. Consideration - Jurisdictional Issues 29 Having carefully considered the submissions (both oral and those in writing) of the parties I am not persuaded that any sufficient reason has been advanced that would lead me to conclude that the question of statutory construction determined by Grayson DP in Parfrey was "clearly wrong". For reasons of comity I intend to follow Parfrey. 30 I am also not persuaded that in considering the application of Mr Eaton I am only restricted to considering issues of procedural fairness as a consequence of the operation of s.80(3) of the Police Act. In that regard I rely on the decision of the Full Bench in Ferraris and I also rely on the decision of the President, Boland J in Alexander v Commissioner of Police [2009] NSWIRComm. Both matters concerned Probationary Constables. I acknowledge that Ferraris dealt with the jurisdictional issue of the operation of s.83(2)(b) of the Act but the inherent jurisdiction of the Commission to deal with the matter because of the operation of s.80(3) of the Police Act was not challenged and Ms Ferraris was reinstated to her former position. 31 In Alexander no jurisdictional issues were raised at all and Mr Alexander was also reinstated to his position of Probationary Constable. 32 I consider that the jurisdiction exists, until otherwise found by a Full Bench of this Commission, for me to consider whether the dismissal of Mr Eaton pursuant to s.80(3) of the Police Act was harsh, and/or unjust, and/or unreasonable pursuant to s.84 of the Act and sufficiently so as to warrant the intervention of the Commission. Such consideration will of necessity involve, as is usual in such applications, consideration of issues of procedural fairness. General Background and Chronology - based on the evidence filed and the transcript. 33 Mr Eaton is aged 28, single and lives with his parents. 34 As at the date of the hearing Mr Eaton had not secured other employment but continued to work with the Army Reserve on a regular basis, approximately one day per week. Since being terminated he had earned approximately $2000 from Army Reserve work. 35 The electives undertaken for the HSC by Mr Eaton did not provide a sufficiently high enough UAI to gain entry to the police course at Charles Sturt University. He investigated other options for gaining entry, which were, either completion of a TAFE Certificate IV, or a background in the military. He subsequently successfully undertook TAFE courses (a Certificate 111 and a Diploma in Photography) and also joined the Army Reserves. He applied to join the Police Force in 2005. Between successfully completing the entry testing requirements at Goulburn Police Academy and commencing in the Police Force, he served a 3 month period in the Army Reserves in Malaysia and Singapore. On his return he commenced his police training. 36 Policing students must enrol in either the Bachelor of Policing at the University of Western Sydney or the Associate Degree of Policing at Charles Sturt University ("ADPP"). Mr Eaton enrolled in the ADPP which spreads training over five 12 week sessions and has both practical and theoretical components. The practical and theoretical components of Sessions 1 and 2 are taught at the Goulburn Police Academy. 37 On successful completion of these two sessions a student is attested as a Probationary Constable and allocated to a Command. A Probationary Constable must then complete Sessions 3, 4 and 5, with each session having both a practical and theoretical component (see Specific Background and Training below concerning Mr Eaton's training). 38 Mr Eaton was attested as a Constable on probation on the 7 May 2007 and placed at Parramatta Police Station within the PLAC. He was allocated to Team 3. The probationary period is of twelve months' duration and but for the events below, he would be due to be confirmed as a Constable of Police on 7 May 2008. 39 On the 9 May 2007 Mr Eaton signed a "Conditional Offer of Employment" which contained inter alia the following clauses (Exhibit 6 - RR 1): 7. During my probationary period I am expected to continue my studies in the Associate Degree of Policing Practice and must satisfactorily complete these studies. 8. My performance including conduct, fitness and medical assessments and integrity throughout my probation period must also be deemed satisfactory prior to my confirmation to the rank of Constable. I understand failure to achieve a satisfactory level of academic performance, fitness and medical assessment, conduct and integrity may result in termination of my employment; 9. I have read and fully understand the NSW Police "Code of Conduct and Ethics" and will comply with the NSW Police "Code of Conduct and Ethics". 10. If I fail to progress academically, breach the Service's Code of Conduct and Ethics including the spirit and intent thereof, am excluded from the ADPP course at any time and for any reason, I will not be confirmed as a Constable or may have my employment terminated at any time. 40 The relevant extracts of the NSW Police Force Code of Conduct and Ethics referred to in relation to the termination of Mr Eaton (Exhibit 6 -RR 6) are as follows: An employee of NSW Police must behave honestly and in a way that upholds the values and the good reputation of NSW Police whether on or off duty... (Part 1) You must act honestly, truthfully and with integrity in all of your dealings with other employees and the public... (Part 1) Employees are responsible for their own professional development and education... (Part 3). 41 Mr Eaton's terms and conditions of employment were covered by the Crown Employees (Police Officers - 2008) Award. Service in the NSW Police Force is subject to the provisions of the Police Act 1990. 42 Mr Eaton deposed that he worked an alternating 12 hour shift roster with shifts from 6 a.m. to 6 p.m/6 p.m. to 6 a.m.. A copy of the Roster for Team 3 at Parramatta Police Station set out on a fortnightly basis for the period 10 February 2008 to 3 May 2008 was attached to Exhibit 2. 43 Between the 9 December 2007 and the 9 February 2008, Mr Eaton was seconded to the Commuter Crime Unit ("the CCU") located at Wentworthville. That secondment was of a type provided to Probationary Constables with the stated aim of providing "an opportunity to broaden your operational experience and further to develop your skills" (Exhibit 6 - RR 13). 44 As part of his training Mr Eaton had a PLAC Work Log (see Specific Training - Background and Chronology below). 45 During Mr Eaton's secondment at the CCU another Work Log was created (the CCU Work Log). This log, as at 13/14 April 2008, contained all his Cases, which were some 5 in number, 4 were generated whilst at PLAC with 1 case being specific to the CCU secondment. This Log showed no Events. However Mr Eaton still had a PLAC Work Log and this Log contained all his Events (and showed no Cases), which on 13/14 April 2008 numbered 14. 46 On the 13 April 2008, (a Sunday) A/Sgt Sardelich was rostered on as Station Supervisor. Sgt Fitzgerald was not rostered on that day (Exhibit 2). Mr Eaton had been rostered off for the previous 3 days, his last shift being Wednesday, 9 April 2008. Mr Eaton requested that A/Sgt Sardelich sign off on his Duty Book as Field Supervisor, and provided to him in that process only his CCU workoff (Exhibit 11 - PS2) . 47 On the 14 April 2008, Sgt Fitzgerald completed a Six Weekly Individual Workload Check on Mr Eaton (Exhibit 12 - DF 3). He deposed that the form covers a range of matters including: · Outstanding briefs · Notebook check · Outstanding correspondence · Workoff review (including outstanding Events, Actions and Jobs) · A review of all current cases on the officer's workoff · Other issues raised by the supervising sergeant of the officer/probationer 48 During this check Mr Eaton showed him his CCU workoff which showed 5 Cases and no outstanding Events. One of those Cases involved a motor vehicle accident (MVA) which had become statute barred (see below), and another MVA that was about to become statute barred in May. Mr Eaton maintained that this was the first time he had participated in such a check (Supt Redfern confirmed that this was the case in his letter to Detective Inspector Nibbs of 2 June 2009 - (Exhibit 6 - RR10)). 49 That same morning it subsequently came to Sgt Fitzgerald's attention that Mr Eaton had a PLAC profile which showed some 14 Events. There is some dispute between the parties as to what was said and the precise circumstances of these two interactions and this will be dealt with in the evidence below. 50 The 14 Events on Mr Eaton's PLAC profile were generated on the following dates and showed the following Event Status: 08/04/2008 Incomplete 04/03/2008 Resubmit Needed 09/04/2008 Incomplete 15/02/2008 Resubmit Needed 18/09/2007 Resubmit Needed 18/02/2008 Resubmit Needed 07/11/2007 Resubmit Needed 15/02/2008 Resubmit Needed 18/02/2008 Resubmit Needed 07/04/2008 Resubmit Needed 15/03/2008 Resubmit Needed 13/03/2008 Resubmit Needed 30/03/2008 Resubmit Needed 08/04/2008 Resubmit Needed 51 Sgt Fitzgerald deposed that the COPS system has a "resubmit" function which permit officers to "send" an Event to a senior officer for comment or to update the senior officer on progress. The senior officer will be then "return" the Event back to the officer after it has been seen. Before it is returned to the officer, the Event has "resubmit" status and will not appear on the officer's workoff. The resubmit function can be used to give the impression that an officer has fewer events, or, less work to do, on his/her workoff than is really the case. 52 There is no evidence as to the precise date on which each of the Events listed above as "resubmit needed", had in fact been submitted or when they had been returned to Mr Eaton's workoff. 53 That same day, Const Dzendolet, at the request of Sgt Fitzgerald, provided assistance to Mr Eaton to clear up and deal with the Events. There is also some dispute between the parties as to how this involvement came to take place and will be dealt with in the evidence below. 54 On the 15 April 2008, Sgt Fitzgerald sent an email to Sgt Dunn about the incident (Exhibit 12 - DF2) as follows: Hello good sgt, I have been chasing mr eaton for past three weeks, I have finally spoken to him. I had been told that his work book, the (Blue) on (sic) was signed behind my back, shopping for a supervisor, s/c Sardelich. Prior to the required date I told him I wouldn't sign it till he explained his work off. On 14/04 he showed me his work off. Much to my surprise he displayed a work off with five cases and no other, events. Good work I thought. But, I made further investigations, I confronted him and he explained he may have shown me his current CCU profile, which he still uses. On his GD's profile he has 14 outstanding events, 2 incomplete since feburary (sic) Others in resubmit since, 18/09/2007. One Statue (sic) Bar MVA and a second due in two weeks. One breach AVO three months old. I will wait to speak to you, but I will not except (sic) that his performance is suitable, and his performance in his blue book should reflect his poor performance. I am happy to complete a SOAR report in regard to his performance. I spoke to Megan Suters who told me that mr loneragan may have already created a directive Mendorium. 55 On the 15 April 2008, Sgt Dunn met with Sgt Fitzgerald who provided a report that was submitted to Supt Redfern (Exhibit 12 - DF 14) concerning the events of the 13 and 14 April 2008 with the issue detailed as being "Dishonesty displayed by Probationary Constable Eaton, registered number 42394, attached to team 3 Parramatta LAC". 56 After detailing in "Background" (of one page in length) the events concerning the two profiles, Sgt Fitzgerald indicated as follows: As Constable Eaton's " work off ", had become so disgraceful I supplied him with Constable Luc Dzendolet to support to help him work through his work. After a solid two hour period, Constable Dzendolet, approached me and informed me that it was like talking to a brick wall. Constable Eaton appeared to show a, I don't care, attitude. He explained that Constable Eaton often attended the front counter; spoke to the customers supplied then (sic) with an event number but did not take any details. He would then move on to other customers at the counter doing the same. Which explained two incomplete events, with no details. 57 Under "COMMENT" he indicated: Three Items have come to notice; firstly I am very disappointed with Constable Eaton's attitude. Secondly it appears from his "Work off" it appears (sic) he is truly not coping, and perhaps the education officers might be able to consider a suitable plan to help Constable Eaton with his lack of time management skills. Thirdly it appears to be a long period of lack of supervision, and lack of forethought on his behalf to approach one of his supervisors to seek help. I believe that he needs consistent supervision on a one on one basis. His work off needs to be urgently rectified. 58 The report then recommended "For Urgent attention, to be forwarded to CMT (the Command's Complaint Management Team). 59 Const Dzendolet was not called to give evidence in these proceedings and did not make a report about his involvement in the events of the 14 April 2008. 60 On the 15 April A/Sgt Sardelich was also asked by Sgt Dunn to prepare a report about what had happened on the 13 April 2008 (Exhibit 10 - JD8). After briefly setting out the background he noted under the heading "COMMENT", the following: I feel that the information brought to light today would have greatly altered the report I completed on 13/04/2008. The information presented to me at that time presented Constable EATON in a very positive light creating the impression that he was an officer very much on top of his workload and managing all well. I have repeatedly asked Probationary Constable EATON to approach me if he required any assistance and to date he has not, confirming my assumption that he was doing well. I feel that with hindsight my report would reflect a far different evaluation of Constable EATON due to the fact that he chose to omit this very relevant information from me. I have in the very recent past made him aware that we are here to help and that remains the same today, however the onus remains on him to be honest and up front when dealing with co-workers and supervisors. 61 Sgt Fitzgerald and A/Sgt Sardelich were not interviewed further following the filing of their reports. 62 Sgt Fitzgerald subsequently left PLAC on 28 April 2008 and did not return there during the time leading up to Mr Eaton's termination from NSW Police. 63 On the 16 April 2008, Supt Redfern met with Sgt Dunn to discuss Mr Eaton and was shown his Duty Book for Sessions 3 as well as his Duty Book for both attempts at Session 4. 64 Later that same day Supt Redfern, together with Sgt Dunn and Inspector Stirton, met with Mr Eaton concerning issues with his Duty Books, the statute barred MVA and issues of untruthfulness and integrity arising from the information provided by Mr Eaton concerning his workload as shown on his CCU and PLAC profiles. He was advised that the situation was "serious". 65 On 17 April 2008, the CMT appointed Acting Inspector Dowling (as he then was) to investigate the following issues (Exhibit 6 - RR6) : Issue One (A) & (B) That on the 13th of April and 15th (sic) of April 2008, Probationary Constable EATON was untruthful when supplying A/Sgt SARDELICH and Sgt FITZGERALD information relating to his current workload on the COPS system. Issue Two On the 22nd of June 2007 Probationary Constable Eaton received a motor vehicle collision Case C31087567. A P5 involving a possible unlicensed driver. Which Probationary Constable EATON failed to investigate, resulting in the matter being statute barred. 66 On the 17 April 2008, A/Inspector Dowling interviewed Mr Eaton at Parramatta Police Station. A Record of Interview was taken which was signed by Mr Eaton on 18 April 2008 (Exhibit 6 - RR4-G). 67 During the course of the interview with Mr Eaton, A/Inspector Dowling asked Q27 and Q31 which were recorded as being answered as follows: Q27: Were you aware of (sic) at the time you printed this up that your Parramatta profile had outstanding or resubmitted events on it? A. Yes I was Q31. Can you tell me why on both these occasions you have provided supervisors with your CCU workoff, and not your Parramatta profile workoff ? A. I knew I had the outstanding events and I did not want to seem to be struggling with my workload and not able to complete the jobs I had. It was not my intention to deliberately go out of my way to mislead anyone, I did not want to appear to come across as being incompetent to my peers and supervisors. I have had problems with managing my Uni and policing workloads. 68 On the 21 April 2008, A/Inspector Dowling provided a 7 page Investigators Report to Supt Redfern (Exhibit 6 - RR 6). He made the following Findings: Issue One (A) ....................... On the balance of probabilities I find this issue NOT SUSTAINED. However I do find the actions of Probationary Constable EATON to be misleading, failing to disclose his knowledge of outstanding work under his Parramatta Profile when asking A/Sergeant SARDELICH to complete his Probationary Workbook. Issue One (B) ....................... On the balance of probabilities I find the issue NOT SUSTAINED. Again, I find the actions of Probationary Constable EATON to be misleading not disclosing his knowledge of outstanding work under his Parramatta profile, however it is apparent that no time was he asked if he had any other outstanding events on his work off, when completing his six weekly workload check with Sergeant FITZGERALD. Issue Two ....................... On the balance of probabilities I find the issue SUSTAINED. 69 Under "General Comments" inter alia was noted the following: Although the findings for Issues 1(A) and 1 (B) are not sustained, it is my submission that there is (sic) mitigating circumstances as to why Probationary Constable EATON has been misleading when supplying his supervisor's (sic) not accurate copies of his work load. However, the actions of Probationary Constable EATON could be perceived as not being of a malicious nature, although he has been misleading to his supervisors. Alternatively it demonstrates Probationary Constable EATON inability to manage his workload and general lack of experience. 70 A/Inspector Dowling indicated under the heading RECOMMENDATION: "that there appears to be evidence which could support the allegations of untruthfulness by Probationary Constable EATON.......However there is no evidence in the reports by Sergeant FITZGERALD and A/Sergeant SARDELICH which outlines Probationary Constable EATON intention to be untruthful, at no time can I see evidence of him being asked by the respective supervisors if the work he showed them on COPS was the only outstanding correspondence he had at the time. 71 However, it was indicated that there was sufficient evidence to sustain findings in relation to the failure to investigate the MVA. 72 He went on to say: Although not all issues have been sustained, it is my submission that there are extenuating circumstances which I believe could be addressed through additional training and performance management programs. I feel the matter (sic) be referred to the CMT for assessment . 73 Supt Redfern declined to certify the Investigator's Report and was "unable to accept the findings" .....in relation to Issues 1 (A) and (B). "In particular, I believed that there was evidence of deception, principally the applicant's own admissions in the directed interview of 18 April 2008."' (Exhibit 6). 74 On the 1 May 2008, an "INTERNAL INVESTIGATION QUALITY REVIEW REPORT" was conducted by Detective Inspector David Egan-Lee, Crime Manager PLAC (Exhibit 7) as follows: I have read the contents of the investigation in to the actions of Probationary Constable David EATON, as conducted by Acting Inspector Dowling of Parramatta Local Area Command. I am in agreement with the findings of A/Inspector Dowling and am satisfied that a full and complete investigation has taken place. The first two issues identified relate to incidents of 'Untruthfulness' . I concur the findings of A/Inspector Dowling that a true form of 'Untruthfulness' , cannot be established in either the information supplied by the complainant, nor in the redress supplied by Probationary Constable Eaton. I further agree that although 'Untruthfulness' cannot be precisely establish, it is more than evident that Probationary Constable Eaton was misleading in the information supplied to his immediate supervisor, whether intentional or not. Therefore, I agree that the allegations as they are outlined in the complaint for issues 1 and 2 cannot be found as sustained. Notwithstanding this, I am of similar belief to A/Inspector Dowling that some managerial action should be implemented to provide Probationary Constable Eaton guidance in this area. I believe, pursuant to any decision arrived at by the Complaints Management Team, that Remedial Performance Agreement be entered into between Probationary Constable Eaton and a Supervisor on his respective team for a period of three months, before he be permitted to proceed to confirmation as a Constable of Police. In regard to the issue of 'Failure To Investigate' , I also agree with the findings of A/Inspector Dowling and agree that the matter is sustained. The secondary concern to come from this, is if substantiated, the actions of some FTO's and others in Supervisory ranks within the command may have been negligent in their undertakings as trainers and mentors of junior Police. 75 On the 15 July 2008, Supt Redfern met with Mr Eaton and informed him that in his view the matters raised in the complaint were sustained and that he would be recommending Mr Eaton's termination. 76 On the 16th of July 2008, Supt Redfern sent a memorandum to Assistant Commissioner Corboy outlining his view on the investigation and recommending that Mr Eaton's employment be terminated (Exhibit 6 - RR 7) 77 In commenting on the investigation conducted and the findings made, Supt Redfern indicated as follows: .................................. With all respect to both officers when one examines the file, in particular the Probationary Constables record of interview, it is clear that he was well aware of the outstanding workload and took a conscious decision to conceal this information from his supervisors. This is clearly manifest in the Constables answer to question 31 (then set out). .............................................. The clear conscious decision of the Probationer to mislead the supervisors is also manifest when the Probationary Constable is asked about the production of the CCU profile to Acting Sergeant Sardelich (he then set out Q27 with the answer). The Probationary Constable throughout the interview repeats that it was not his intention to deceive anyone. However, such conscious decisions are made on at least two separate occasions on two separate dates. This is not a single incident where the suggestion of an inadvertent mistake can be sustained in my view. With respect to one of the incidents the probationary constable provides the explanation that he had been told on the first of April that he had failed PPP242 and was of the belief, " I was going to lose my job and was unable to concentrate" . I do not believe that such an explanation can be sustained in circumstances where the same course of action is adopted on two separate occasions. Equally, the explanation is inconsistent with the Probationary Constable's submission that he was at all relevant times aware of the events he was concealing and intended to conceal from the supervisors. In my view his actions and his answers clearly manifest the fact that he made a conscious decision to do so. In my view this clearly involves the failure to exercise the strictest honesty and truthfulness and this matter should in my view be sustained. 78 Mr Eaton was restricted to performing Station and Custody Officer duties at Parramatta Police Station from May 2008 until his last day of duty with the Police on the 23 July 2009. 79 On the 4 February 2009, a "Notice foreshadowing your dismissal from the NSW Police Force pursuant to the Police Act (NSW) 1990 s.80 (3)" was issued to Mr Eaton by Assistant Commissioner Corboy (Exhibit 6 - RR8). 80 The letter was of some 10 pages in length with some 69 points, and set out in detail - the background and specific allegations concerning the incidents of 13 April 2008 and 14 April 2008; the interview with A/Inspector Dowling; details of a further deception at Parramatta on 10 March 2008; operational deficiencies and the inability to manage workload re a statute barred motor vehicle accident; general inability to manage workload (with reference made to the comments made by Constable Dzendelot to Sgt Fitzgerald on 14 April 2008); provided details of 1 further Case, 3 specific outstanding Events from the 14 Events on the PLAC profile; summary and considerations (factual background to his appointment and status). 81 Mr Eaton was advised that "given the deception implicit in your actions on the three occasions on which I rely, your continued employment with the New South Wales Police Force is inimical to the standards expected of police officers by the Parliament, the Commissioner and the community." Concerns were also expressed that his "operational effectiveness" was not at the standard expected of a constable on probation at his level of experience. Concern was further expressed, that despite attempts to assist, he had repeatedly failed to satisfactorily complete important parts of the ADPP resulting in his exclusion from further studies for two years (with the consequent completion of the probationary period then being April 2011) with such readmission not guaranteed. 82 Mr Eaton was advised that termination was being considered and he was given 21 days to respond in writing to the Notice. 83 Mr Eaton sought legal advice and provided a detailed 21 page response on the 26 March 2009 (Exhibit 6 - RR9). In responding, he provided his version of the events of 10 March, 14 and 15 April 2008 and denied that he had engaged in acts of deception on the dates alleged. He also denied that his "operational effectiveness" was not at the standard expected at his level of experience and noted that no account had been taken of the events that had transpired since he was placed on restricted duties in May 2008. He acknowledged his exclusion from the ADPP but submitted that he could usefully perform the functions of Probationary Constable up to and including April 2010. He made detailed submissions about penalty and concluded by saying: When considering whether to remove me, I ask that you take into account the fact that I am a person of good character with no criminal convictions. I also ask you to take into account the fact that I have already suffered, both personally and professionally because of the complaints the subject of the Notice. I submit that even if wholly proven, my conduct is not sufficiently serious to justify the proposed penalty in the Notice and I ask you not to impose it. I submit that in the circumstances it would amount to nothing more than punitive action that has little in the way of merit or corrective effect. 84 In relation to the Record of Interview on 17 April 2008, Mr Eaton responded as follows: I have read the contents of paragraph 19 - 28 in the Notice, and acknowledge they contain an accurate summary of the questions and answers contained in the ROI. In relation to paragraph 29, I reiterate that Sergeant Dowling found the allegation of untruthfulness not sustained and that finding was upheld by Detective Inspector D Egan-Lee, although I concede they both found my conduct was misleading whether intentional or not. He then went on to indicate that he disagreed with the conclusion drawn that he had deliberately deceived his supervisors in order to obtain an assessment that would prove favourable to the awarding of a satisfactory grade in the practicum subject. 85 Mr Eaton deposed (Exhibit 1) that the information summarised by A/Inspector Dowling was incorrect and he realised that he should have changed the answer when he signed off on the record of interview but was tired and stressed. On receiving the Notice he realised the incorrect answer at question 31 was being used to justify his dismissal. Whilst he discussed it with his solicitor he deposed that he decided not to reveal this in his Response as he "did not want to seem critical or disrespectful of Acting Inspector Dowling and hoped that my response would persuade Assistant Commissioner Corboy not to dismiss me". 86 He deposed that the correct answer to question 31 should have been the following (Exhibit 1): I didn't give sufficient thought to the print out I gave Leading Senior Constable Sardelich because I rushed to take advantage of the fact he agreed to mark my duty book. I was working with the CCU Profile, so I gave that to him. It simply did not occur to me in my haste to give him a copy of my Parramatta LAC Profile as well. In relation to Sergeant Fitzgerald, I told him I had not submitted my events in response to a question from him, but he did not ask me anything more about them, and moved straight onto my cases. 87 On the 11 May 2009, Detective Inspector Michael Nibbs reviewed the response by Mr Eaton and also sought further specific comment from Supt Redfern on a range of issues in relation to that response (Exhibit 6 -RR10). He also sought the following: The deception issues generally Please advise whether you consider the actions of Pro/Constable Eaton to have been misleading or deceptive, or whether you consider that he deliberately lied to either or both supervisors (the difference being both of degree and of ultimate consequence) 88 He concluded the letter of review by saying: 27.Whatever the merit or otherwise of conclusions in relation to the operational efficiency and integrity of Pro/Constable Eaton, he is excluded from the ADPP until April 2010 at the earliest. This alone provides a ground for dismissal. Assessment of the officer's responses to the issues identified in the Notice will determine which issues are to be identified in a dismissal Order as further grounds for dismissal. 28.Please advise if you still seek the dismissal of Pro/Constable Eaton. 29.Your assistance and advice is greatly appreciated. 89 Supt Redfern responded in writing on 2 June 2009 (Exhibit 6 - RR11) in a detailed letter of 21 pages and in so doing indicated as follows: For the purposes of record I should observe that this Command commenced action to facilitate the removal of this officer by way of a letter to Assistant Commissioner Corboy on the 16 July 2008, (TRIM D/2008/167421). This process has already taken some 10 months to progress. Throughout that period the Probationary Constable has continued to perform restricted duties in this Command and has attended for duty without sick leave and had done so on a number of celebratory days and public holidays. Further issues, apparently not at this time of a significant nature, have arisen and are being examined that this time. Notwithstanding, it is considered that the inordinate delay in progress in this matter, in the context of the officer's ongoing attendance, will significantly disadvantaged the New South Wales Police Force should there be any future proceedings before the Industrial Relations Commission. Notwithstanding, I believe that the process of termination should proceed. 90 Supt Redfern went on to advise that on the available evidence it seemed clear that Mr Eaton was "fully aware" of the existence of the two profiles, was untruthful with regards to his work review with Sgt Fitzgerald and SC Sardelich, and deliberately misleading. Reference was made to the Record of Interview by Sgt Dowling and the response given by Mr Eaton to question 31. It was denied that there was an inadequate level of support or supervision provided to him. A detailed comparison and analysis of Mr Eaton's response as compared with Sgt Fitzgerald's report was made. 91 Supt Redfern also indicated that he "had not had the benefit of viewing the reference from SC Sardelich". 92 A detailed response was given to the issue of the refusal of Supt Redfern to determine that Mr Eaton had satisfactorily attained the required level of competence to pass the Session thus resulting in a fail grade and exclusion from the ADPP. Supt Redfern indicated that Mr Eaton was on notice that his unsatisfactory performance was under review and he considered that not only did Mr Eaton fail to seek assistance "he actively concealed the fact that he was not performing satisfactorily". Supt Redfern maintained that the issue of integrity did not play a role in reaching this decision. 93 Supt Redfern concluded that if the exclusion of Mr Eaton from ADPP until April 2010 provided grounds for dismissal then in his view the dismissal should proceed on that basis. He went on to observe as follows: Probationary Constable Eaton is a personable and likeable young man. He is unfailingly respectful and courteous. He interacts well with his colleagues and supervisors. The Probationary Constable has continued to perform restricted duties in this Command of the past 10 months. He has attended for duty without sick leave and had done so on a number of celebratory days and public holidays. All this is to the officer's credit. I have little doubt that he could be a success in many endeavours. Notwithstanding, I do not believe that he has the aptitude or capacity to be a successful police officer. Further, he has failed most important test of all in terms of a failure to display the required level of integrity. 94 He again referred to the delay and the disadvantage to the Police Force should there be future proceedings before the Industrial Relations Commission but indicated "I believe that the process of termination should proceed." 95 On the 5 June 2009, following receipt of the Response from Mr Eaton, Kelly Muscat, the Executive Officer of the Office of Professional Standards, Corporate Services forwarded a letter to Assistant Commissioner Corboy (Exhibit 6 - RR12), advising inter alia as follows: 2. After review of his (Mr Eaton's) response and further review of the investigation file reviewed by the Office of Professional Standards, potential issues with the reliability of the information reported were identified. Consequently, requisitions dated 11 May 2009 were made of the Parramatta Command. A reply to those requisitions was received on 2 June 2009. 96 The following material was attached for Assistant Commissioner Corboy's consideration in determining whether to dismiss Mr Eaton: · the investigation file provided by the Parramatta command; · the notice served on Pro/Constable Eaton on 12/02/2009; · Pro/Constable Eaton's response stated 26/3/2009; · requisitions dated 11/5/2009 forwarded to the Parramatta Command (Exhibit 6 - RR10); and · an undated reply by Supt Redfern, Parramatta Command received on 2/6/2009 (Exhibit 6 - RR11). 97 The letter went on to make the observation that the decision to fail Mr Eaton on the ground of operational deficiencies was made prior to Supt Redfern's decision to make adverse findings in relation to the investigation concerning the deceptive conduct on 13 and 14 April and therefore the issue of integrity was not relied upon to exclude the officer from the ADPP. 98 On the 22 July 2009, Assistant Commissioner Corboy issued an Order for Dismissal pursuant to the Police Act (NSW) 1990 s.80(3) on the basis of Mr Eaton's misconduct and operational performance as set out in the Notice served on Mr Eaton on 12 February 2009. The detailed Order of 10 pages (with 75 points) essentially replicated the material as set out in the Notice (Exhibit 6 - RR13). The Order indicated that Mr Eaton's letter of response had been "also carefully considered" with reference made in various sections to his specific responses and their consequent consideration in reply. 99 There was no reference made in the Order to the allegation concerning "further deception at Parramatta on 10 March 2008". 100 The Order took effect from the date of its issue, 22 July 2009. Mr Eaton was paid two weeks pay in lieu of notice and other accrued entitlements. Background and Chronology - Statute Barred Motor Vehicle Accident (MVA COPS E30469973/C31087567) - taken from the evidence as filed. 101 Charges must be laid in respect of motor vehicle accidents (MVAs) within 6 months of them occurring, otherwise no action can be taken and they become "statute barred". 102 This particular MVA concerned a minor motor vehicle collision that occurred on 30 March 2007, but was not reported to the PLAC by the member of the public concerned until 15 May 2007. The other driver had left the scene, not provided contact details and was therefore not identified and enquiries were thus required. A witness to the accident had provided a contact number. It subsequently transpired that the other driver was unlicensed. The enquiry was allocated to Mr Eaton on the 22 June 2007 by SGT Dowling. This MVA became statute barred on the 30 September 2007. 103 The COPS print out of this case is set out in Exhibit 12 - DF6 104 Mr Eaton deposed that he attempted to make contact with the driver but was unsuccessful; he did not record all the contacts so made in COPs and the job was sent to Liverpool Station for enquiries to be made, as the person of interest resided in that area.. 105 Sgt Hedges deposed that on the 9 March 2008, she conducted a review of Mr Eaton's workoff on the COPS system at the request of Sgt Latham who was his Field Training Officer at that time. She deposed that she ascertained that Mr Eaton had not attended the address of the person of interest who was avoiding police and this should have been followed up with Liverpool police to ensure that either someone from that Command attended the person's address or Mr Eaton should have attended the address, or sought advice and assistance from a senior officer and recorded the action he was told to take on COPS. 106 On the same day she wrote the following comment on the case in COPS (Exhibit 8 - KH2): David, This MVA is now a statute barred. You will need to prepare a SOAR report outlining the action you took in relation to this file. You will also need to explain in your report why this file was not actioned within the six-month statute of limitations. I have sent a memo to Sgt Dunn regarding this file and you will need to see her at your first opportunity. I note that you are both rostered on Wednesday the 12th of March and I expect you to go and see her first thing. Sgt Hedges 107 During her review, Sgt Hedges also noticed Mr Eaton had been responsible for an MVA (C32727528) occurring on 3 December 2007 and allocated to him on the 20 December 2007. She noted the following comment on this matter in COPS as follows (Exhibit 8 - KH3): David, Good work on this one. I note that you have created a number of actions detailing your attempts to get intouch (sic) with witnesses etc. You might now need to attend the driver's residence and leave a card for him to contact you. Also, run some checks on the witness ie COPS, yellow pages to see if you can find her address, then attend her home. Again, make sure that you action this case at least once per block and create an action every time you do something with this case. You only have 6 months to action a case that relates to traffic. If you fail to act within the 6 month statute of limitations a complaint will be generated and you will have to explain why you did not act so remember to keep actioning it. Sgt Hedges 108 On the 30 March 2008, Inspector Darryl Jobling noted in the COPS account (Exhibit 12 - DF6) as follows: David, I am conducting a dip-sample of old cases of whichthis (sic) is one. I endorse the comments of Sgt HEDGESon (sic) on 9.3.08. I hope that you have completed thereport (sic) that was requested by her. The fact that the report is completed should be reflected in your Actions. Attend forthwith. Regards, Darryl JOBLING 109 On 30 March 2008, Sgt Dunn received the following email from Inspector Darryl Jobling (Exhibit 10 - JD7): Julieanne, Has P/Cst EATON come to see you about his statute barred MVC? I picked this up when I was looking at some of the oldest GD cases on system. (C31087567 refers). Kylie put comments on the case for him to come and see you. Regards Darryl 110 On the 10 April 2008, Sgt Dunn sent the following email to Mr Eaton (and copied to Sgt Fitzgerald ) (Exhibit 10 -JD7): David You have not come to see me about this statute barred acco. On the next day you are working and either Sgt Hedges and I am working you will come and see us with your notebook and we will go through your cases. A statute barred acco will result in a complaint on your file and a performance programme to address this issue. If you are having difficulty with particular cases then you must seek out the help of your supervisor. I note that one of your supervisors is Sgt Fitzgerald who is a traffic expert and will sit with you and assist you with all your cases. Please seek him out on your next shift, he is only too willing to assist you Julieanne Dunne Sergeant EDO Parramatta LAC 111 Sgt Fitzgerald replied to this email on 14 April 2008 (see General Background and Chronology above). 112 Mr Eaton subsequently provided an undated SOARS report to Sgt Dunn summarising the actions that had been taken in relation to this MVA. (Exhibit 10 - JD11). The report was also provided to Inspector Jobling. 113 MVA C31087567 was Issue 2 as referred by the CMT to A/Inspector Dowling. The finding made was that, on the "balance of probabilities", the Issue was sustained (see General Background and Chronology above). 114 In the 9 May 2009 review of Mr Eaton's Response to the Notice, Supt Redfern noted as follows (Exhibit 6 - RR11): Inadequate Investigation of a Motor Vehicle Collision (COPS 3046 9973/C31087567) Paragraph 19 Having reviewed this event it is clear that Probationary Constable EATON was offered advice from the time the case was allocated to him on 22 June, 2007 by Sgt Dowling. He received a further comment from the then Traffic Officer-Senior Constable Suters three months later reminding him of the statute of limitations and to seek assistance from senior officers. The probationer states that he recorded all his actions and attempts to contact the registered owner in the narrative as he was not aware that he was required to record every attempt as an "action". This is clearly not the case as a review of this incident shows he made nine attempts to contact the registered owner reported in actions on the date that he made the calls, (see Tab 3) 115 The documentation in evidence concerning the comments of Senior Constable Suters is contained in 2 entries in the COPS account (Exhibit 12 - DF 6) as follows: Commenting Officer : SENCON MEGAN SUTORS Commenting Date : 08/09/2007 Comments : David, Please chase the job you sent to Liverpool, Megan Commenting Officer : SENCON MEGAN SUTORS Commenting Date : 08/11/2007 Comments : What is being done about this? The statute of limitations runs out in the very near future Megan Background and Chronology - Inability to manage workload issues. 116 Reliance was also placed on one further Case concerning an MVA due to become statute barred on the 3 May 2008, and three outstanding Events in relation to the issue of failure to manage his workload. 117 The Notice detailed the following: 39. An assessment was undertaken of the 13 incident reports filed in the event reports category. That assessment revealed that you had taken no action to complete or make appropriate enquiries into the following three reported incidents: · E 31819756 - a report of theft of merchandise by an employee of a store on 16 October 2007 which was reported to you on 7 November 2007 but which you did not enter into the COPS until 13 March 2008; · E31510646 - a report of a failure to pay for petrol which was submitted by you on 18 September 2007 - you subsequently were instructed by supervisors via the ' resubmit' function on three occasions to complete and/or update your report but by 14 April 2008 you had not followed those instructions; and · E34828580 - a report of an assault which was submitted by you on 15 February 2008 and into which no enquiries were made by you by 14 April 2008. 40. I am satisfied that there is information available to me which gives me grounds on which I reasonably could conclude that you failed adequately to investigate these three incidents and to update the relevant entries in the COPS. 118 In Mr Eaton's Response to the notice of 4 February 2009, he noted in relation to these matters (Exhibit 1 - B) as follows: The notice is the first I have received of any of these incidents and there are no documents contained amongst those provided to me, which would enable me to refresh my memory in relation thereto having made my own enquiries in relation to each incident, I can respond as follows. 119 He then went on to make an explanation as to actions he had taken in relation to both the further Case and the three Events. He denied he took no action to all to complete or make in appropriate enquiries into the first Event; acknowledged there were attempts made in relation to the second Event and that he ought to have completed or updated in his report earlier than he did. In relation to the third Event he believed he was doing the right thing by giving more time for the circulation of available CCTV footage to be seen by more people. 120 He submitted that in all the circumstances there were no, or insufficient, grounds on which it could be reasonably concluded that he failed to adequately investigate the four incidents and to update the relevant entry in the COPS. Background and Chronology - Specific Training - taken from the evidence filed (Exhibit 10). 121 In order to pass the practical subjects in Sessions 3, 4 and 5 a Probationary Constable must: · Demonstrate specified operational practitioner competencies to the required standard; and · Achieve a pass mark for 2 written assignments which are set and marked by Subject Co-ordinators at Charles Sturt University ("CSU"). 122 The operational practitioner competencies are taught and assessed "on the job" by relevant Officers in the Command. 123 Similarly, in order to pass the theoretical subjects in those same sessions, again a Probationary Constable must complete and pass written assignments set by the Subject Co-ordinators at CSU. 124 Matters relating to the assignments set are dealt with between the Probationary Constable and CSU directly. The only direct involvement of the Education Development Officer ("EDO" ) in relation to these assignments is to keep a record of whether an assignment is passed or failed. 125 Both the practical and theoretical subjects in each Session must be passed in order to progress to the next Session. If a subject is failed it must be repeated. Failure of the same subject twice is referred to as a "double fail" and will generally result in exclusion from the ADPP for a two year period, after which application can be made to CSU for re-admission to the course. 126 The role of EDOs, such as Sgt Dunn and Sgt Hedges, was to facilitate and co-ordinate not only the education and training of all Officers within the Command, but also manage the provision of the practical components of a Probationary Constable's training. 127 The training regime applicable to a Probationary Constable ("PC"), and applied to Mr Eaton, is as follows: · A PC is placed into a team. Each team usually consists of three Sgts, one of whom it is the Team Leader, and about 6 Constables. PLAC has 3 intakes of approximately 20 PCs per year with about 5/6 PCs in each team, there being three teams in all. · One of the Officers in the team will be the Field Training Officer ("FTO") for the PC and is responsible for providing training assessments and support. · Each of sessions undertaken (Sessions 3, 4 and 5) during the probationary period are split into 2 six-week blocks: Weeks 1 to 6 and Weeks 7 to 12. FTOs are not permitted to supervise a PC for consecutive six week blocks resulting in 2 FTOs each Session. · In addition to the FTO, one of the Sgts in the team is required to complete a "Field Supervisor Report" at the end of each six-week block. These reports are based on the Field Supervisor's own observations, plus information provided by the FTO and other Officers who may come into contact with the PC. · The EDO is responsible for reviewing these assessments and progress reports and for helping to identify any actions or strategies required to improve performance and may also carry out further reviews of the PC's work from time to time to support the supervision provided by both the FTO and the Field Supervisor. · There are 12 core competencies that PCs must demonstrate by the end of Session 5 and these are found in the "Job Stream Operational Practitioner Competencies: JSR 1". "Integrity" is one of those core competencies. (see Exhibit 10). The Duty Book 128 A PC's Duty Book is an integral part of the training process (see Exhibit 10): · At the start of each of the Sessions 3, 4 and 5, PCs are given a "Probationary Constable Duty Book" ("the Duty Book"). Each of the 12 competencies referred to above are set out in the introductory section at the front of the Duty Book. Progress in achieving the competencies over the three Sessions are reported in the Duty Book for each Session. · The Duty Book is divided into 9 sections (including the introductory section). Sections 2 to 5 of the Duty Book are the same as sections 6 to 9 ( however sections 6 to 9 cover weeks 7 to 12 of a Session) and are as follows: o Daily activity report and self assessment - categorises the Role in an incident as "O", "A" or "L" (see below) with both the PC and FTO ranking the performance of the incident as: - 1. Below Satisfactory - 2. Satisfactory - 3. Above Satisfactory o Field Teaching Officer Skills Checklist o Field Supervisor Report - at the end of Week 6 and Week 12, the Duty Book must be provided to the EDO for review and comments. The EDO's comments are written at the end of this section. o SOARS Reports - Situation Objective Action Report. The purpose of which is to identify any difficulties attaining Skill Units to the requisite benchmark level and to report strategies for improvement. · The Field Teaching Officer Skills Checklist is broken down into 10 Skill Units as follows: 1. Shift Preparation - Preparing oneself for duty 2. Shift Preparation - Vehicle safety and condition 3. Undertaking Patrols 4. Operational Safety 5. Responding to Incidents 6. Communication - Verbal 7. Information - Gathering, collating & recording 8. Managing Individual Workload 9. Use of Police Radio 10. Custody · Each of the Skill Units listed above are in turn broken down into various specific skills. On each of those skills the FTO must rate a PC according to one of the three benchmark categories. "O" means the skill has been observed whilst receiving instructions, "A" means a PC had assisted with the completion of the skill under guidance and "L" means a PC had taken the lead and performed the skill unassisted. Next to each skill unit there is also a mandatory comment field which the FTO must complete. · The Duty Book "highlights" which level of competence in that skill is the benchmark of that particular Session (shown as grey shading within the particular box). Sgt Dunn deposed as to the example that a PC might be expected to attain "O" for a particular skill in Session 3, but "L" for the same skill in Session 5. 129 The Skill Units particularly referred to in relation to Mr Eaton's Duty Books and relevant to issues as to managing his workload and his work performance were as follows: 1. Skill Unit 7 contains a number of skills relevant to the Computerised Operational Policing System ("COPS") which is the centralised computer system used in the NSW Police Force to record events and manage cases. 2. Skill Unit 8 contains a number of skills relevant to workload management with skill 8.1 requiring the checking by the PC of his/her WORKOFF screen at the commencement of each shift. The WORKOFF screen is a menu option on the COPS system which identifies all the PC's work in progress. 130 Mr Eaton completed Session 3, Weeks 1 to 12 between May and August 2007 (Exhibit 10 - JD1). 131 Mr Eaton's Duty Book for Weeks 1 to 6 relevantly records the following information: · Daily Activity Report 31 Incidents recorded with Mr Eaton ranking the majority as satisfactory The relevant FTOs Sgts Latham, Kelly & LC Vojnikovic ranked the majority as satisfactory and 2 as above satisfactory. · Skill Units All individual skills listed were completed at the requisite benchmark. Mr Eaton's "Mandatory Comments" for Skill Units 7 & 8 were as follows (with additional comments by one of his FTOs) : Skill Unit 7 "The police computer system is still new to me and I feel I still need to ask a lot of questions at most times." A comment was added - " GOOD TO ASK QUESTIONS !!" The systems are becoming more natural over time and through experience A comment was added - "Yes it will!" Skill Unit 8 "I do check all outstanding work, I feel that I do need to gain more effective time management skills for my future in the police force." · The Field Teaching Officer Skills Checklist Report Completed by Sgt Latham. It was noted that 15 shifts had been performed with the PC by the FTO. For Skill Units 7 and 8, all but one individual skill was initialled as having been completed at above the benchmark required (with one skill noted as achieving the benchmark). Positive comments were made under all skills as well as relevantly the following: Skill Unit 7 "Gathers relevant info with little assistance. Has no problems using the system to conduct inquiries. Records all relevant info in his notebook." Skill Unit 8 "Has no problems in this area. Communicates well with FTO regarding outstanding work." · FTO general comments were: "P/Cnst EATON is working well. He is very motivated and appears to be enjoying the job. Is always keen to learn and asks questions often. No problems at all. Is progressing very well." · Field Supervisor Report Completed by Sgt Whatson who noted: "All skills are up to requirements and in some cases above average." There were no comments noted in the sections "Note Book Inspection" and "Officer Work Log". The Work Log Screen listed no Events and 1 Case. All issues listed under "Assessment of Attitude" and "Assessment of Professionalism" were ticked off as being either "satisfactory" or "above satisfactory". Sgt Whatson's General Comments were as follows: "The Probationer is showing above average progress in most areas. He is extremely keen in his approach to his duties. He communicates exceptionally well with all staff and is showing excellent potential at this early stage in his career." · The EDO's Comments (Sgt Dunn): "Well done David you are progressing at a pleasing rate. I look forward to reading your duty book at the end of this session." 132 Mr Eaton's Duty Book for Weeks 7 to 12 of Session 3 relevantly records the following information: · Daily Activity Report: 36 Incidents were recorded (with 9 as Leading). Mr Eaton ranked all incidents as satisfactory. FTO LC Vojnikovic ranked all but 1 incident as above satisfactory. The following handwritten comment was noted at the side of the page: "Good - Suggests Dave understates his capacity. Your supervisors clearly believe your performance higher than self assessment." · Skill Units: All individual skills listed were completed at the requisite benchmark. Mr Eaton's "Mandatory Comments" for Skill Units 7 & 8 were as follows (with additional comments by one of his FTOs) : Skill Unit 7 "I wish to improve further with the COPS system, as I feel it takes many extend (sic) amounts of time to put simple events on. I feel I will improve over time and more experience as I had improved over the last few weeks" Skill Unit 8 "I need to improve my time management skills, as I feel my work off (sic) is piling up at times." An additional handwritten comment was included - "This is important!" · Field Teaching Officer Skills Checklist Report Completed by LC Vojnikovic. It was noted that 16 shifts were completed with the PC by the FTO. For Skill Units 7 and 8, 12 individual skills were noted as completed at the required benchmark and 10 skills at above the required benchmark. Positive comments were generally noted under all skills, as well as relevantly the following: Skill Unit 7 "CST Eaton is improving in this Area every skill I am sure he will improve in next few months in the job. Very GOOD!" Skill Unit 8 "Cst Eaton is improving in this area always ask (sic) FTO for appropriate action" · FTO general comments : "Cnst Eaton is improving him self (sic) every shift & has some surprises when it comes when speaking with POI's. In my opinion Cst Eaton is going to become very good police officer. Very Good, keep up with a good job." · The Field Supervisor Report Completed by Sgt Whatson who noted in the Review on the performance of the Skills Checklist - "The Probationer is progressing well in all areas" There were no comments noted in the sections "Note Book Inspection" and "Officer Work Log". The Work Log Screen listed 1 Event and 2 Cases. All issues listed under "Assessment of Attitude" and "Assessment of Professionalism" were ticked off as "satisfactory". General Comments were as follows: "The Probationer is maturing and progressing well. He is performing his duties to a high standard. He is more than ready to progress to the next level." · The EDO's comments (Sgt Dunn): "Good work David, very pleasing results you are progressing at a pleasing rate. Keep it up for session 4." 133 On the 7 September 2007, Supt Redfern signed-off on Mr Eaton having attained a satisfactory level of competence for Session 3, and recommended progress to Session 4, conditional upon successful completion of the corresponding academic subjects. In the PPP231, Session 3 Assessment Requirements, Sgt Dunn had circled the Duty Book as being "satisfactory". The corresponding academic subjects PPP231 and PPP232 were passed by Mr Eaton. 134 Mr Eaton completed his first attempt at Session 4, Weeks 1 to 12, between September and November 2007 (Exhibit 10 - JD2). 135 Mr Eaton's Duty Book for Weeks 1 to 6 relevantly records the following information: · Daily Activity Report 18 Incidents recorded with Mr Eaton ranking them all as satisfactory. There was no ranking completed by an FTO and the following handwritten notation appears next to that section - "Your FTO must rank your performance" · Skill Units All individual skills listed were completed at the requisite benchmark. Mr Eaton's "Mandatory Comments" for Skill Units 7 & 8 were as follows : Skill Unit 7 " I wish to improve my information gathering and recording skills. I believe I need to improve my efficiency on the COPS system and believe I can through more hands on experience A comment was added - " David - try to work on this over the next 6 weeks" Skill Unit 8 " I believe I can still improve my effective time management skills" · The Field Teaching Officer Skills Checklist Report Completed by Const Dinsdale. It was noted that 7 shifts had been completed with the P/C by the FTO. For Skill Units 7 and 8, all individual skills were noted as being completed at the required benchmark. Positive comments were noted under all skills as well as relevantly the following: Skill Unit 7 "Cst Eaton creates all cop's events well. He is also able to compile assorted statements when required. He conducts cid's enquiries well and had a good knowledge of all requirements. Cst Eaton always informs all persons of their rights in accordance with COPRA and maintains a professional standard at all times." Skill Unit 8 "Cst Eaton manages his individual Workoff well. He prioritises his individual cases, events, jobs well, & records and notifies all officers of court required dates." · FTO general comments: " I find Cst Eaton to be a well mannered and motivated officer. He has come a long way from when he first started and conducts himself well at all times. He has been involved in a wide variety of incidents and one incident in particular stands out where I believe he deserves credit for. A job well done." · Attached was a report by Const Dinsdale on the incident referred to above, for which the following Recommendation was made: "That Probationary Constable David EATON be recommended and acknowledged for his police work during this incident on the 29th of September 2007". Sgt Dunn had also commented : "Noted - excellent work" · The Field Supervisor Report Completed by Sgt Bourke. In signing off on the Field Teaching Officers Skills Checklist, he had commented in the Review of performance section - "Cst Eaton has a very good working knowledge. He is polite and punctual and displays all the attributes of a very good police officer. In the Notebook Inspection section it was noted - " notebook legible and completed at a satisfactory level." In the Officer Work Log section it was noted - "Cst Eaton appears to have a good general understanding of the COPS system and is able to cope with and stay on top of the level of work he is generating." The Work Log Screen listed 7 Events, 3 CIDS messages and 4 Cases. All issues listed under "Assessment of Attitude" and "Assessment of Professionalism" were ticked off as being either "satisfactory" or "above satisfactory". General Comments were as follows: "Cst Eaton is performing duties at and beyond a level that is realistically expected of him, given his length of service. He is motivated and very enthusiastic in his work." · The EDO's comments (Sgt Dunn): "Good work David a very pleasing report. However your duty book was due on 15/10 not 1/11. You risk failing this subject should your book be submitted late for wk 12. It is your responsibility to have the book submitted on time ." 136 Mr Eaton's Duty Book for Weeks 7 to 12 records the following information: · Daily Activity Report 31 Incidents recorded with Mr Eaton ranking them all as satisfactory. Some 9 different names appeared in the Senior Officers column (in the main Constables Dzendolet, Dinsdale, Coddington and Riteski) Rankings had only been completed for 14 incidents, 8 as satisfactory and 6 as above satisfactory. The pages were not signed or dated. · Skill Units All individual skills listed were shown as being completed at the requisite benchmark. Mr Eaton's "Mandatory Comments" for Skill Units 7 & 8 were as follows : Skill Unit 7 " I feel over the last 6 weeks my knowledge and skills in this area have improved greatly. I believe I am learning something new in this area with each shift and wish to continually improve with shifts to come." Skill Unit 8 " I am improving in this area and feel my time management skills are now at the standard required"." · Field Teaching Officer Skills Checklist Report: Completed by Const Dzendolet. It was noted that 2 shifts had been completed with the P/C by the FTO. All individual skills were initialled as having been completed at the required benchmark with positive comments under the various skills as well as relevantly the following: Skill Unit 7 "The procon collects information well and records it accurately in his notebook. The procon had a good understanding of COPS & cad." Skill Unit 8 "The procon actively makes attempts to clear his work off." · FTO general comments were: " The procon is developing well and is ready to progress in my opinion. After speaking to other fto's it is a common decision." · Field Supervisor Report Completed by Sgt Hedges. In signing off on the FTOs Skills Checklist she had commented in the Review of performance section - "The probationary constable is progressing well. He has good communication skills and works well within the team." There was no notation entered in the Notebook Inspection section. In the Officer Work Log section it was noted - " The probationary constable's work off was reviewed on 26/11/07. Nil issues". The Work Log Screen listed 5 Events, 3 CIDS messages and 8 Cases. Sgt Hedges General Comments: " Yes. The probationary constable is progressing well in all areas. Nil adverse comments." · The EDO's comments (Sgt Dunn): "Good work David". 137 On 6 December 2007, A/Supt Krawczyk signed off on Mr Eaton having attained a satisfactory level of competence for Session 4 and recommended progress to Session 5, conditional upon successful completion of the corresponding academic subjects. In the PPP241, Session 4 Assessment Requirements, Sgt Dunn had circled the Duty Book as being "satisfactory". 138 In December 2007, Sgt Dunn was informed that, whilst Mr Eaton had passed the Duty Book requirements, he had failed to complete the two assignments for CSU that were required to pass Subject PPP241, and he had also failed Subject PPP242. The failure of this subject had been caused by his withdrawal from the course which resulted in an automatic failure. That information was in turn conveyed to Supt Redfern. 139 The consequence of these failures meant that Mr Eaton had to repeat both Subjects and had to repeat the Duty Book requirements of PPP241 (Session 4) notwithstanding the certification that had been given by A/Supt Krawczyk that he could progress to Session 5. 140 CSU required Mr Eaton to sign a Probationary Constable Performance Development Plan (PDP) for Subject PPP241 and provide a copy to Sgt Dunn (Exhibit 10-JD 5). This was done on 10 January 2008 and a copy also provided to Supt Redfern. The PDP for Subject PPP242 was not provided by CSU until early April 2008 and signed by Mr Eaton on 8 April 2008 (Exhibit 10-JD6). 141 Mr Eaton re-commenced Session 4 in February 2008 just before he returned to Parramatta from his secondment at the CCU. 142 Mr Eaton's Duty Book for Weeks 1 to 6 relevantly records the following information (Exhibit 10-JD3): · Daily Activity Report 11 Incidents recorded with Mr Eaton ranked all incidents as satisfactory. His FTOs had also ranked all incidents satisfactory. The page was not signed or dated by Mr Eaton. · Skill Units All individual skills listed were completed at the requisite benchmark. Mr Eaton's "Mandatory Comments" for Skill Units 7 & 8 were as follows : Skill Unit 7 " I feel my recording of information skills could be improved, and am working hard to do this." Skill Unit 8 " I am working hard to improve this area." · The Field Teaching Officer Skills Checklist Report Completed by Sgt Latham. There was no entry recorded as to the number of shifts completed with the PC by the FTO. For Skill Units 1 to 6 a number of skills had been initialled as having been completed at above the benchmark requirement. For Skill Unit 7 some individual skills were initialled as having been completed at the required benchmark and some at above the benchmark required. However for Skill Unit 8, 4 individual skills were initialled as having been completed at the benchmark below that which was required ("A" rather than "L").However positive comments were generally noted under all skills as well as relevantly the following: Skill Unit 7 " Is working up to standard in this area COPS events ect (sic) are competed (sic) correctly." Skill Unit 8 "Have spoken to Sgt Hedges re possible time management issues relating to paperwork and follow up inquiries. May need some supervision ie cases and what is required. Apart from this nil issues." Under "Professionalism", Sgt Latham 's Mandatory Comments noted: "Is extremely professional at all times. May sometimes lack in personal confidence towards his ability." · FTO general comments were: " Dave is working in most areas above the standard to which he should be. As stated before may need some supervision in relation to case and time management which has been discussed with the EDO. He is a pleasure to work with and is a valuable resource to the LAC." · The Field Supervisor Report: Completed by Sgt Dowling who noted a "?" in the Number of shifts performed with the Probationary Constable. In signing off on the FTOs Skills Checklist, he had commented in the Review of performance section - " In reviewing the comments it appears that Cst Eaton is progressing at a steady pace." In the Officer Work Log section it was noted - " Greater attention to be given to his caseload ." "The Officer Work Log Screen" table listed no events, 5 CIDS messages and 6 cases. All issues listed under "Assessment of Attitude" and "Assessment of Professionalism" were initialled as being "satisfactory". Sgt Dowling's General Comments were as follows: "P/Cst Eaton is coming along at a steady pace. I do however believe greater time should be spent on his event & case management, something I believe will improve as he develops in time management skills. With greater exposure to the job I feel P/C Eatons ability will continue to improve." · The EDO's comments (Sgt Dunn) made on 12 March 2008, were as follows: " David as highlighted by your FTO & FS as well as Sgt Hedges time mgt is a major issue for you. You need to get on top of your work of as instructed by Sgt Hedges. You need to keep a record/running sheet of what needs to be done & set dates for these things to be completed. Remember you have on most cases a 28 day turn around. " 143 Mr Eaton's Duty Book for Weeks 7 to 12 relevantly records the following information (Exhibit 10-JD3): · Daily Activity Report 22 Incidents recorded - 6 noted as "A" and 16 as "L". Mr Eaton ranked all incidents as satisfactory. His FTOs had also ranked all incidents as satisfactory. The page was not signed or dated by Mr Eaton. · Skill Units All individual skills listed were completed at the requisite benchmark. Mr Eaton's "Mandatory Comments" for Skill Units 7 & 8 were as follows : Skill Unit 7 " I believe my information gathering skills are to the standard required but I endeavour to improve these skills with each job." Skill Unit 8 " I am always trying to improve my managing of my individual workload." · Field Teaching Officer Skills Checklist Report: Completed by Const Dinsdale. It was noted that 7 shifts had been completed with the PC by the FTO. All individual skills within the Skill Units were initialled as having been completed at the required benchmark. Positive comments were made under all skills with the following relevantly noted: Skill Unit 7 " David works well in this field of his work he displays a satisfactory understanding of all his work and duties. He is able to complete tasks when asked as well as complete other tasks without being asked. Nil issues." Skill Unit 8 " David manages his individual workload well at this time. He always checks his pigeonhole at beginning of each shift as required." · FTO general comments: " David is a good operator who works hard and well at all times. I find him to be a reliable officer who understands what is required of him and works well he has a very good knowledge of the Parramatta LAC and all its surrounds over time he will become a great police officer." · Field Supervisor Report: Completed by A/Sgt Sardelich. There was no comment entered in the FS's review section. Under "Notebook Inspection " the comment was "Nil O/S. " Constable Eaton has developed well in all aspects of policing. He has the confidence of all his co-workers who find him a pleasure to work with. He has grown in confidence and is a certain eve with both the public and his peers. He has demonstrated a mature professional attitude to his work and overtime will develop into an excellent one stop Constable. He does however need to constantly be aware of the experience around him and to access other knowledge & experience to maximise his potential and development." There were no comments in the Officer Work Log section. "The Officer Work Log Screen" table listed no events and 5 cases. All issues listed under "Assessment of Attitude" and "Assessment of Professionalism" were initialled as being "satisfactory", with 1 noted as "Above Satisfactory." · General Comments ( made on 13 April 2008) were as follows: " Constable Eaton has developed well in all aspects of policing. He has the confidence of all his co-workers who find him a pleasure to work with. He has grown in confidence and is assertive with both the public and his peers. He has demonstrated a mature professional attitude to his work and overtime will develop into an excellent one stop Constable. He does however need to constantly be aware of the experience around him and to access other knowledge & experience to maximise his potential and development." · The EDO's comments made by Sgt Dunn on the 23 April 2008, were as follows: " David this is very disappointing. Having discussed this with both yourself and Mr Redfern I have no choice but to recommend that you are failed on your duty book. You will be placed on a PDP next session to ensure you are adequately supervised and your workoff is more closely monitored " 144 Sgt Dunn then indicated, in the appropriate section, that Mr Eaton had "NOT met the Field Practicum and operational requirements associated with Session 4....... "and should therefore repeat this initial period of training." 145 Supt Redfern and Sgt Dunn met on 29 April 2008. Supt Redfern made handwritten notes of the meeting as follows (Exhibit 6 - RR5): Discussions with Julianne Dunn re Eaton - Noted rejection of book would be a second fail. - I noted I accepted that but could not in all good conscience sign off on him. Note to ignoring dishonesty issues - Were issues of competence - work management - capacity and could not confirm. 146 Supt Redfern accordingly certified in Mr Eaton's Duty Book that he had not attained a satisfactory level of competence for Session 4 on the second attempt. This resulted in a double failure of subject PPP 241. Pursuant to Academic Progress Regulation 3.5 he was now excluded by CSU from further study in the ADPP for a period of two years commencing from the start of Trimester 2, namely April 2008. 147 Mr Eaton appealed his exclusion from the ADPP to CSU's Faculty of Arts Exclusion Appeals Committee. The appeal was denied on the basis that it had not been made on any allowable ground (Exhibit 6 - RR 13). 148 SC Sardelich provided a reference for Mr Eaton for the appeal hearing in the form of a report (Exhibit 3).Under "BACKGROUND" it was relevantly noted: Whilst I have not directly worked with Probationary Constable EATON in the role of a field training officer or as an offside in a General Duties capacity, I have been involved in the day-to-day supervision of him as a supervisor for a large amount of his time spent at Parramatta. 149 He then went on to relevantly note under "COMMENT" the following: While Probationary Constable EATON has generally performed at a high standard there was one issue brought to my attention involving several outstanding events on his workoff which were not addressed accumulated from his time spent at the Commuter Crime Unit at Wentworthville. A report was submitted and Probationary Constable EATON was given a chance to address these issues. To his credit he did not hesitate in answering the issue and I felt he has learned from his mistake and has taken great steps to ensure that an incident like this does not re occur. He quickly dealt with the outstanding events to the point that all were finalised within one week. With greater supervision and monitoring of Probationary Constable EATON"S workload this could possibly have been prevented. I still fully endorsed all assessments made in his duty book and whilst it was not signed at the time due to this issue, every other aspect of his policing development was progressing well as stated in the duty book. 150 Mr Eaton became eligible for readmission to the ADPP in April 2010. The Evidence 151 The specific factual detailed evidence concerning the events of 13 and 14 April 2008; the issues raised as to inability to manage workload; Mr Eaton's Duty Books for Sessions 3 and 4, and training issues; the investigation and the various documents relevant to the notice of termination have been traversed (and in some instances subsequently replicated) in the statements of Supt Redfern, Sgt Dunn, Sgt Hedges, SC Latham, and Sgt Fitzgerald. That factual detail is set out in the various Backgrounds and Chronologies above. 152 There was detailed cross examination of Mr Eaton in relation to the 14 Events on his PLAC profile. I do not consider it necessary to deal with that detail, however it has been carefully noted. General issues 153 Mr Eaton maintained that his problems with his workload and his academic progress in the latter part of 2007 resulted from relationship problems he was having at the time. His attempts to try to save the relationship resulted in him spending less time on his academic workload. He continued to have issues with the relationship between late 2007 and July 2009, splitting up with his girlfriend on a number of occasions during that period. The relationship ended on the day that he was dismissed in July 2009. 154 Mr Eaton deposed that he had learnt a lot from this relationship, including that in future relationships he needed to have better communication skills and better time management skills. If reinstated he deposed that he knew that with the assistance and support of his Supervisors and peers he would be able to complete the academic requirements of his probation successfully. 155 Mr Eaton acknowledged that it was a requirement for both Probationary Constables and himself to act honestly, with truthfulness and integrity in dealings with other police and the public and that that was an inherent requirement of being a police officer. He acknowledged that integrity and acting honestly was also central to the duties performed by a police officer and that there was a particular necessity for police officers to deal with each other honestly, truthfully and frankly. He also acknowledged that there was a level of trust and confidence necessary between police officers and that that was built on being honest and truthful with each other. He also acknowledged that the credibility of the police in the eyes of the community also depended on those types of matters. 156 However Mr Eaton said that whilst he agreed that his errors reflected on his capacity to be a police officer, he had learnt from those mistakes and said that hopefully, at the end of the day, that would make him a better police officer. 157 All other witnesses (all serving Police Officers) also acknowledged the importance of a police officer being honest and truthful in their dealings with each other and members of the public and the importance of integrity. 158 This was particularly relevant to the views formed by Supt Redfern as indicated in the following exchange in response to questions from the Commission: Q. Was there ever any consideration given to giving him a second chance or given the promise that he had showed? A. We rely on honesty. It is the - not asked about it, but it is the most important issue that exists. The courts rely on being able to have police officers coming to them swear an oath and their evidence be relied upon. Other police rely upon the honesty of police they are working with about whether investigations have been conducted, whether reports have been done, whether checks have been done, all manner of other issues. We rely absolutely on honesty and integrity, it is the ultimate test. Every police officer that I speak to when they come into my command as a probationer gets told by me that at the end of the day, you won't normally be sacked for making an honest mistake of judgment, a mistake, doing something foolish even, but if you tell lies, you breach the fundamental issue of trust. Now, in this case it wasn't one occasion for me, it was two. That is, there are two dates, one with Sardelich and one with Fitzgerald. I don't think when one reads the record of interview, that is, the answers that are given - and I have referred to them in my statement and in my other reports - when one looks going back at - he says he was aware that he had these other matters on his work off, et cetera, cetera. I don't believe you can come - and in fact if you read Dowling's report, it is internally inconsistent in terms of the ultimate finding he makes. 159 Sgt Prasad had read the Notice issued under s.80, Mr Eaton's Response, as well as Mr Eaton's November witness statement and was fully aware of the findings against him. Sgt Prasad deposed as to the period in which Mr Eaton was placed on restricted duties in the Station and Custody area. He deposed that he reported for duty on every single rostered shift and did not take any sick leave. Sgt Prasad deposed that he performed duties as the Shift Supervisor, Mobile Supervisor and Custody Manager on numerous occasions where he personally witnessed Mr Eaton's "exemplary behaviour and attitude" towards both members of the public and fellow officers of all ranks, as well as his treatment of persons in custody. 160 Sgt Prasad also made checks of his outstanding workload on COPS, asked him to explain the status of each outstanding item and verified his explanations by thoroughly reading the details of each item, finding on each occasion that there were no issues whatsoever in regards to his honesty and integrity. He further deposed that his observations of Mr Eaton, in particular since May 2008, confirmed to him that he performed his duties with the "highest degree of integrity, honesty and dedication". This was also the opinion of other General Duties Supervisors with whom he had discussed these issues. 161 Sgt Bourke had also read the Notice issued under s.80, Mr Eaton's Response and his November witness statement and was aware of the findings against him. 162 He deposed as to his involvement with Mr Eaton when he was Team Leader on Team 3. His contact with him was to supervise him and allocate appropriate policing tasks and duties. He had also made telephone contacts and met socially with him since he had left the Police Force. He also observed his work during the period of his restriction on Station Duties and noted that this was one of the more "stressful areas to constantly work on" and that he should be "proud of himself that he performed those duties without any complaints from him prior to being dismissed". 163 Sgt Bourke observed Mr Eaton to be disappointed at the outcome, which effectively ended what Sgt Bourke believed, "would have been a promising career before it had a chance to flourish". He was aware that in the time leading up to the alleged incidents Mr Eaton was having relationship problems which may have contributed to his "error in judgement". It appeared to him that Mr Eaton was very remorseful that the whole incident occurred and continue to reinforce that it was an error of judgement and not an attempt to deceive or cheat. 164 In his capacity as having been his Supervisor and Team Leader, Sgt Bourke said he had no reason to doubt his "integrity, honesty or moral fibre". He appeared to always get on well with other team members and was respectful and courteous to his supervisors. 165 All witnesses, with the exception of Supt Redfern and Sgt Fitzgerald, indicated that they would have no problem working with, (and would be happy to work with) Mr Eaton if he was returned to the NSW Police Force. 166 Sgt Fitzgerald's view was also influenced by his belief that Mr Eaton had intentionally mislead him. Also he didn't believe that he was focussed on what he was doing and let things build up and he couldn't support that he had changed, from what he had seen. Sgt Fitzgerald also indicated that he would not be prepared to work at Parramatta Police Station in the future as he did not agree with their methods. 167 Favourable and complementary comments as to Mr Eaton's general character and his dealings with other officers and the public were made by all witnesses along the lines of those expressed by Sgt Bourke. Dual Profiles 168 It was Sgt Bourke's evidence that he was unaware, before the matter arose with Mr Eaton, that it was possible to have two COPS profiles. He had never come across that. 169 SC Sardelich was also not aware that it was possible to have more that one profile. 170 Sgt Prasad was aware of the ability to have more than one profile and the following exchange in relation to that took place: Q. Do you accept that Mr Eaton misled Acting Sergeant Sardelich on 13 April 2008? A. No, I don't. Q. You don't? Do you accept that he misled Sergeant Fitzgerald on 14 April 2008? A. No, I don't. Q. Why do you say that in both cases? A. The issues surrounding the profile system on the COPS system, the profile system is one where Probationary Constables make mistakes in identifying what they have outstanding on the systems and people of 10 years service, 15, 20, 25, 30 years service have difficulties in understanding the profile system on the COPS system. It's not - for example, when I first came to Parramatta, I had - I think I had about four or five different profiles. I didn't realise till probably two or three weeks of being at Parramatta that I had outstanding work still on the Middle Eastern Organised Crime profile. It's a matter of knowing how to get into those profiles. There's a lot of police out there that don't realise that when you're in the profile, you can tab down to the bottom brackets and type "profile" and the screen will come up with all your profiles. It's not only Probationary Constables, you can-- Q. Can I ask you this question. In your role as a supervisor, Sergeant Prasad, have you had responsibility for signing off on Probationary Constables in terms of a field supervisor's report? A. I have, yes. Q. And for that purpose you would have requested that Probationary Constables provide you with a copy of their work off? A. No, I don't do it in that fashion. Q. How do you do it, sir? A. I go into their own profile and I check all their profiles. 171 Sgt Fitzgerald indicated that he was aware, from a supervisor's point of view and his experience prior to arriving at Parramatta, that it was possible to have multiple profiles. However it was not something he was accustomed to, and he had neither raised it, or come across that, with a Probationary Constable prior to Mr Eaton. It was Sgt Fitzgerald's evidence that they shouldn't have access to a second profile to start with. The CCU supervisors should have been doing their job in saying that there was "stuff" on it that was not transit related and they should have been on the phone or speaking to someone back at PLAC. 172 It was Sgt Bourke's evidence (confirmed by other witnesses) that on logging onto the computer one had to select a particular profile. For example one had to either select the CCU profile or the PLAC profile. You would have to log out of the CCU profile and then select and log into the PLAC profile. It was not possible whilst working in one profile for another profile to "pop-up". If a new Event was created whilst in the CCU profile then it would appear on that profile and not the PLAC profile. Whatever profile was logged into would be the profile where everything that was subsequently created would appear. 173 Sgt Bourke also explained that once logged in, there was other work to do other than creating Events, it was updating Cases and actioning Cases. Pretty much anything to do with an Event that had been turned into a Case had to be updated with comments and actions added and that was the predominant work screen. 174 Sgt Bourke was not aware of anything that had been done to address the issue of dual profiles. On secondment then you had to have them both. On return from secondment the old profile would be resumed, not a new profile commenced. The old one would still be there. 175 Sgt Bourke indicated that he had not raised the issue with any of the Probationary Constables he supervised. He had not had to address that issue, as none of them from memory had gone to the CCU on secondment. 176 Sgt Hedges deposed that on the 9 March 2008 she conducted a review of Mr Eaton's workoff on the COPS system at the request of Sgt Latham, his FTO at that time. She gave further evidence about that review in the following exchange: Q. Now, in relation to your discussion of the review on 9 March 2008, you say at paragraph 18 that you conducted a review of the applicant's work off on COPS. Do you see that? A. Yes. Q. Now, again you didn't do that with Mr Eaton, is that right? A. That is right. Q. And at that time did you review all of his work off, that is, both his CCU profile and his Parramatta profile? A. Under the work off, you don't actually select a profile. All of his work comes in under a work log check. Supervisors have access to a work log check, but if an officer is to check their own individual work, it comes in under a work off and that is when we select a profile. Q. I see. So you have the ability, because of your seniority, to use a particular input which automatically gives you all cases as events? A. Yes, attached to that registered number. You enter the registered number of the officer and his work will come up. Q. But the officer themselves, the more junior officers have to access it under every profile? A. Yes. 177 Sgt Dunn indicated that since the issue of dual profiles had arisen with Mr Eaton she had not raised the issue of dual profiles with PCs after they returned from CCU. Events of 13 and 14 April 2008 178 Mr Eaton did not ever provide, nor was he asked to provide, any written report of the incidents of 13 and 14 April 2008 involving Sgt Fitzgerald and SC Sardelich. The only written record of his account of what occurred appears in the record of interview of A/Inspector Dowling and Mr Eaton's subsequent Response to the Notice of 2 February 2009. 179 It was Mr Eaton's evidence that he had had very little to do with Sgt Fitzgerald. He had worked a few shifts with him but at the time he did not know which Sergeant Supervisor had him as their Probationary Constable. He knew that he had three Sergeants besides Sgt Fitzgerald - there were two others besides Sgt Beeche and Sgt Whatson on Team 3 at the time and A/Sgt Sardelich had been put into the role when Sgt Whatson had gone out. A/Sgt Sardelich had been on Team 3 since Mr Eaton had been on Team 3 and he had done a fair bit with him, not one-on-one work, but as his supervisor. He was not aware, and had not been told by anyone, that Sgt Fitzgerald had become his supervisor. He had done no work with Sgt Fitzgerald at that point in time, that he could recall, other than spending a training day with him in a classroom with the whole team in traffic training. 180 Mr Eaton also deposed that he found Sgt Fitzgerald somewhat "unapproachable but had a lot of respect for his rank and for him". He had not worked with him often enough to have a view about him as a supervisor. He believed he had worked two shifts with him where he was a supervisor. 181 Mr Eaton was taken to the record of interview with A/Inspector Dowling where he indicated in answer 35 that he believed that if he had had a supervisor like Sgt Fitzgerald earlier, then he wouldn't have got into "dramas". He agreed that that was suggestive of the fact that he thought Sgt Fitzgerald was good at what he did in terms of supervising, but maintained that he wasn't aware before the six-week work log check that he was his supervisor. He agreed that that was the first time someone had actually sat down with him and gone through that sheet. 182 He went on to say that it was a record of interview where he didn't want to seem like he was pointing the finger at anyone, he was trying to take the blame for himself. 183 He also agreed that it didn't occur to him at that point in time to put his hand up and say he was also having difficulty with some of his Parramatta work and had a lot of outstanding Events. He didn't think that was an appropriate time. 184 SC Sardelich also confirmed that he had had regular contact with Mr Eaton, not on a one-on-one basis like on a truck, but more than likely on a supervision basis. 185 Mr Eaton could not recall Sgt Fitzgerald ever asking to see his Duty Book, but said he would gladly have given it to him if he had asked for it. He was also not aware that Sgt Fitzgerald was to sign off on his Field Supervisor's Report. 186 He believed Sgt Beeche was the main supervisor after Sgt Whatson but he didn't go and see her on 13 April as she wasn't Supervising Sergeant that day, it was A/Sgt Sardelich who was Station Supervisor that shift. It was also Sgt Fitzgerald's evidence that Sgt Beeche worked a roster that suited her circumstances and was not therefore always available. 187 Mr Eaton maintained that on 13 April he had sought to have A/Sgt Sardelich sign off on his Duty Book as he was Station Supervisor that day and in the past he usually had the Station Supervisor sign off on his Duty Book. He said that this was the practice of Probationary Constables. This was not contradicted in subsequent evidence. 188 Mr Eaton also indicated that when he had had his Duty Book signed off in the past by Field Supervisors he had never had a discussion about any workoff after the Duty Book was signed. It then went to the Education Officer, but he never went through his workoff at the time of the Duty Book. 189 SC Sardelich had completed about 10 Field Supervisors Reports in his capacity as an Acting Sergeant prior to being asked by Mr Eaton to check his Duty Book. 190 He had no concerns when Mr Eaton asked him to sign off on the Duty Book as he knew him quite well. He had a very good opinion of him with no problem whatsoever, "very trustworthy, competent" and he found him to be a "reliable police officer". 191 Mr Eaton was aware that at that time he had both a CCU and a PLAC profile. A/Sgt Sardelich asked him for his workoff and Mr Eaton maintained that he gave him his CCU workoff which was the one he was working on at the time. A/Sgt Sardelich did not go through the Cases with him. Mr Eaton gave him his Duty Book and the workoff and later left for the day. (Exhibit 11 - PS2 has a time of "16:37 " in the top right hand corner.) 192 SC Sardelich could not be 100% sure that he had a conversation with Mr Eaton on that day about the five Cases. His recollection was not "super clear". He could only go on what he would normally do, and that would be that he would have said, "what other Cases? Where are you at with those Cases? What needs to be done? Does he need any help?" 193 In completing the Field Supervisor's Report, SC Sardelich had noted the comments made in other relevant areas by Const Dinsdale and it therefore seemed to him that Mr Eaton's performance in these areas was satisfactory. He asked Mr Eaton if he could see his workoff. When he asked this he did not know that he had two profiles. Mr Eaton gave him a computer printout (MFI 1) which showed that all categories were clear except for 5 outstanding Cases and it was on the basis of this information that he completed the report and then gave the Duty Book to Sgt Dunn, the EDO. 194 He also indicated that it was not unusual that no Events would be shown on a PC's workoff. Events tended to be turned over very quickly. If there was an Event that required more investigation and a little bit more work then they created a Case. It could be expected that there might be 1 Event, or 10, if there was a busy night and 10 were accumulated in one night. Two days later, half of them would be gone, or turned into Cases. It was very easy and very common that 10 could come in on one day, and half of them could be gone by the end of the shift. 195 He also indicated that senior officers could access the workoff of any Constable or Probationary Constable. 196 On 13 April, SC Sardelich also had a conversation with Const Dinsdale about his comments in the Duty Book and asked him how he thought Mr Eaton was going and he was quite adamant that he was doing well and there were no dramas at all. 197 SC Sardelich was not aware at that time that an officer could have more than one profile. He also indicated that a printout of a workoff does not indicate anywhere on it which profile it is from. He thought he was being handed the PLAC profile because he thought that it was the only one that Mr Eaton could have. 198 He indicated that if he had been aware of the 14 further Events on Mr Eaton's workoff he would probably not have commented as favourably in the actual section on COPS and reports. He did not think he would have had a problem with every other section, but he probably would not have been able to say that he was on top of his workload. He would not have failed Mr Eaton's Duty Book. He was disappointed that Mr Eaton had not approached him for help in respect of those 14 Events because they had a good working relationship and if he was aware of them he could have helped. There was a level of frustration in his subsequent report because he hadn't been able to render assistance. Had he known about Mr Eaton's Events he would have instigated assistance and said "we could probably have gotten rid of half of them" and done that very quickly. 199 Sgt Fitzgerald and Sgt Dunn subsequently approached him the next day and Sgt Fitzgerald showed him a printout of a workoff screen (Mr Eaton's PLAC profile) showing 14 Events which he had not been shown before. He told them he was not aware of this additional work. He was then asked to write a report of what had occurred on 13 April 2009 which he did. 200 Mr Eaton acknowledged that he made no attempt to draw A/Sgt Sardelich's attention to the fact that he had outstanding Events on his PLAC profile. He accepted that he ought to have reviewed the document before he provided it. He also accepted it that it was his responsibility to provide his workoff and not that of A/Sgt Sardelich. However he maintained that he didn't consciously mislead or deceive A/Sgt Sardelich but accepted that he had deceived him without intention. It was an accident but he took responsibility for it. 201 Mr Eaton agreed that at the time he showed the CCU profile to A/Sgt Sardelich he knew he had been struggling with his workload but he said that at the time he was in a "false sense" because everyone had been telling him how good he was going, but looking back he was struggling. 202 Mr Eaton said he simply gave A/Sgt Sardelich the "screen dump" of what he was working on at the time - it was a "quick thing". 203 In cross examination the following exchange took place in relation to this issue: GINTERS: Q. In circumstances where you knew of the existence of the Parramatta Local Area Command profile, you didn't show it to Acting Sergeant Sardelich? A. No, I didn't show him. Q. And what I want to suggest to you is that you didn't want to show him that, because you were concerned that if you showed it to him, it might have raised in his mind concerns about your competency? A. That's not what I was thinking when I gave him that print out. Q. Can I suggest this to you, but for the events of the next day on the 14th, it was not your intention to draw Acting Sergeant Sardelich's attention to the outstanding events on your Parramatta profile? A. I don't know what I would have done, it wasn't - yes. Because I didn't know that that's what I'd done to Sardelich. I wouldn't have personally gone out of my way to deceive him like that. Q. Well, but you only gave him a less than complete picture of your work off? A. Yes. Q. And you did that in circumstances where you knew it was less than a complete picture of your work off? A. No, I was on that screen at the time. I quickly printed it off, because he said he was going to take my duty book and I printed off what I was working on at the time. Q. But you knew from previous experience that what the senior officer was doing was completing the officer work log, correct? A. Correct. Q. Do you seriously suggest to this Commission that knowing that such a report had been filled off on a number of occasions, that it didn't occur to you that it was necessary to provide your Parramatta outstanding events? A. Not that it didn't occur - like, I didn't know, I printed it off the CCU to give to Sardelich. Q. But you printed it off-- A. At the time. Q. But you printed it off and handed it to him. A. At the time I thought I had given him a Parramatta profile. Q. Well, where do you say that in your witness statement, Mr Eaton? A. That's what I thought. Q. No, I'm asking you a question. Where do you say that in your statement? A. It was what I was working on at the time. Q. No, I understand it might have been what you were working on at the time, but it's a fairly fundamental issue, Mr Eaton. I'm asking you, where do you say in your statement that you thought that you'd provided Acting Sergeant Sardelich with a copy of your Parramatta print off? A. I don't know where I say it. 204 Mr Eaton said that he subsequently spoke to A/Sgt Sardelich, he couldn't remember when, he thought it was a few nights later, and apologised to him because that was never his intention. 205 SC Sardelich confirmed that Mr Eaton had apologised to him, he had accepted the apology, considered that it was sincere and that he was regretful that he had not approached him for help. 206 SC Sardelich also confirmed that he had provided a reference to Mr Eaton in his attempts to keep alive his place in the ADP. He was supportive of his desire to remain in the police force and he still stood by the contents of that reference. 207 Mr Eaton said that at the time he was still awaiting confirmation about the PDP coming through. He had already received the academic passes but he still didn't complete the PDP because Parramatta LAC didn't receive it until after the dates so he had not got confirmation that he had passed.. However he acknowledged that he knew he needed to pass the Duty Book. 208 In relation to this matter it was Sgt Dunn's evidence that they didn't receive a copy of the PDP back in January. They didn't receive it until was brought to their notice around the 7 or 8 April when they actually received it. 209 It came to their notice that the subject coordinator did not have a signed copy of the PDP and that Mr Eaton had not attended a study skills session back in January as part of the plan. The reason he didn't attend was because they weren't aware of the plan in existence. When Sgt Dunn spoke to the subject coordinator she was told by her that Mr Eaton had passed all the assignments and if they just got that part of the plan signed and back to her that would suffice the requirements for Mr Eaton to complete and pass that subject. She indicated that she would have said to him that she'd spoken to the subject coordinator who had said that he passed the subjects and just as a matter of administration they needed to complete the signatures on the PDP and have the boss acknowledge that he was supposed to have been on a PDP, get that back to her and then the subject coordinator said she was fine with that because he had passed the subjects. 210 Mr Eaton acknowledged that misleading a superior officer as to the status of his work was inappropriate behaviour, it was reprehensible, should not be tolerated and called into question a Probationary Constable's integrity. He also accepted that engaging in such behaviour raised questions as to the person's fitness to be a police officer. He acknowledged that it was an error but did not agree that it was significantly more than just an error of judgement. When asked whether it was an error which raised questions about his suitability to be a police officer he responded - "I hope not, but yes". 211 Sgt Fitzgerald deposed that he first came to the PLAC in September 2007. He came onto Team 3 around 23 March 2008 when Sgt Dowling came off the Team to take up the position of A/Inspector. Sgt Fitzgerald then took over as supervising Sergeant for his junior officers and probationers. 212 At the commencement of his oral evidence Sgt Fitzgerald made amendments to his witness statement (Exhibit 12) in relation to SC Sardelich and now accepted that SC Sardelich was in fact on Team 3 at that time. It was his belief at that time in April 2008, that he was not on Team 3. However he still did not consider that it was appropriate for Mr Eaton to approach him to have him verify his Duty Book because he (Sgt Fitzgerald) was his Supervising Sergeant and had actually asked him to come and see him. 213 He could not remember what day that had happened and said he would have spoken to him first thing at the morning parades at the beginning of their shift when they were all together in the muster room. He acknowledged that according to the roster (Exhibit 2) he had only worked the same shift with Mr Eaton on 2 occasions in the previous three weeks. He maintained that he would also see him during the day in passing. 214 It was his general practice that three weeks prior to a PC's Duty Book being finished he approached them and asked for it. He agreed it couldn't have occurred any earlier than the 28 March, which was when he commenced in the position at PLAC. He did not raise the issue with SC Sardelich at that time nor anyone else, nor did he make any enquiries as to whether SC Sardelich otherwise had knowledge of Mr Eaton's work. 215 Sgt Fitzgerald also did not say anything to Mr Eaton at that time about having A/Sgt Sardelich check the Duty Book because he considered that having it checked was better than not having it checked. Nor did he subsequently say anything to A/Sgt Sardelich about checking the Duty Book. 216 It was Sgt Fitzgerald's evidence that about once a week the supervising Sergeant can conduct checks of a PC's Notebook. That Notebook was different from the Duty Book that was part of their training requirements. The Notebook was the same as that used by all officers in the Police Force and records all actions carried out through the PC's rostered shift. The Notebook is checked to ensure that the details are entered correctly and also to assess how much work is being carried out. Each page is numbered and it was possible to see how much work had been recorded since the last check. 217 Sgt Fitzgerald indicated that he regularly conducted 6 weekly workload checks with all the officers under his supervision including Sergeants, Constables and Probationary Constables. 218 There was no evidence from the other Police Officers called as witnesses as to their practice in relation to 6 weekly workload checks. 219 Mr Eaton could not recall ever sitting with a supervisor from his team and completing a 6 weekly workload check. He did not know that such a check existed and was unsure of the process. He also did not recall that Sgt Fitzgerald had ever reviewed or signed his Notebook. He could not recall Sgt Fitzgerald asking him for his Duty Book. 220 Supt Redfern noted in his response to Detective Inspector Nibbs (Exhibit 6 -RR 11) that the "6 weekly workload checks had existed for 6 to 8 months prior to the check conducted by Sergeant Fitzgerald. The particular form that Sergeant Fitzgerald completed with Probationary Constable Eaton was going through an implementation process". After noting that team leaders adopted different processes and that Mr Eaton had had his Notebook checked on three dates by a team leader (7/10/07, 13/03/08, 13/04/08), he went on to further comment: It is accepted that there had been a number of changes to the supervision on the Probationary Constable's team due to supervisors being transferred, sick leave and the like. Accordingly, there had been little consistency other than the supervision provided by Field Training officers and reported checks in the Probationary Constable's Duty Book. Sergeant Fitzgerald moved onto the team on 23 March, 2008, and his preferred method of checking was the wholistic (sic), Individual Officers Checklist, which he conducted with Probationary Constable Eaton on the 14.4.08. So it is correct to say that a wholistic (sic) check had not previously been conducted with him. The aim of the new process was to conduct a full check on how the officer was managing his workload and provide an officer with the opportunity for one-on-one guidance from the supervisor. If Probationary Constable Eaton did not know what a six-weekly workload check was and it was not adequately explained I would have expected that he should have asked for further information. Probationary Constables are told to question and challenge issues that they are presented with. 221 It should be noted that there was dispute between Mr Eaton and Sgt Fitzgerald as to exactly where at the Station the two men were when this 6 weekly workload check was undertaken and whether there was one way or two-way glass in the window behind the front desk. 222 Mr Eaton maintained that the workload check took place in the Station Supervisor's office and that he went in there from where he had been at the front desk, Sgt Fitzgerald logged out of the computer and Mr Eaton then logged in and stepped back with Sgt Fitzgerald sitting at the computer. 223 Sgt Fitzgerald deposed that this event took place at the computer in the front lobby. He referred to a Supervising Sergeant's "partitioned area". He said that immediately behind the computer was an area partitioned with one-way glass allowing the Supervising Sergeant of that shift to see into the front lobby and that others could not see in. The computer was only an arm's length or so away from the glass partition so it was possible to see what was on the computer. He also maintained that the office in question was too small for the discussion to have taken place there. 224 Mr Eaton maintained that that at no stage did Sgt Fitzgerald sit with him in the front lobby. He said there was no one-way glass in the front lobby at Parramatta Police Station. There was normal two way glass that had venetian blinds allowing the Supervising Sergeant to view the front area at his/her discretion from the Supervisor's office. 225 However, Mr Eaton did not dispute that it was possible to see the computer screen from that office. 226 SC Sardelich indicated that the set up at Parramatta Police Station was that there was a front desk where the public approached and whoever was occupying the Supervising Sergeant's role had an office behind that front desk with the office having a window with 50% see-through glass and some of the glass frosted with Police logos. There was also a venetian blind. 227 Sgt Fitzgerald however maintained that they called Parramatta "the fish bowl" because everyone could look where you were sitting and you were stuck in this little box. The glass had "silver stuff" on one side, maybe a window tint kind of finish and if you stood on that side you couldn't see back. When advised that SC Sardelich had said that the glass was two-way he indicated that he believed that the Station had been remodelled since the time he had worked there and that there had been modifications made. There was one-way glass when he was there. 228 No other witnesses gave any evidence about the physical layout or setup at the Station and SC Sardelich and Sgt Fitzgerald were the only witnesses on the third day of hearing and concluded the evidence for the respondent. 229 Given the time that has elapsed since these events and a lack of corroboration from other witnesses I do not consider these differences in the evidence are of any real significance or raise any issues as to credibility of either witness given that there is no dispute that Mr Eaton's computer could be viewed by Sgt Fitzgerald (in either version of the layout). 230 Mr Eaton acknowledged that in carrying out the workload check he only showed Sgt Fitzgerald his CCU profile. During the check, which took about 15 to 30 minutes, Sgt Fitzgerald went through the Cases and asked him if he had resubmitted all of his Events and he told him no, and that was all he said because he was saying no, he had not resubmitted or submitted any Events. This was consistent with what he subsequently told A/Inspector Dowling in his interview. 231 Sgt Fitzgerald maintained that Mr Eaton's answer to this question was "no, this is all that I have in my work off". Mr Eaton denied saying that that was all he had in his workoff. 232 They then went through the 5 Cases with Sgt Fitzgerald making notations on the six weekly workload check form about each case. 233 The issue of the statute barred MVA was discussed and will be dealt with below. 234 Sgt Fitzgerald's evidence was that about two hours later he was in the Supervising Sergeant's partitioned area, and in looking through the window at Mr Eaton's computer screen he saw a list of a number of Events when there had been no such Events when he had shown him his workoff earlier. He went out into the foyer and said to Mr Eaton "I want a screen dump of that right now". There was no one else in the foyer. The printout (which was in evidence) showed that it was printed off at 10:16 a.m. 235 He asked Mr Eaton - "where did these events come from? I just checked your work off and you told me you didn't have any." Mr Eaton replied - "I have two profiles CCU and general duties. I'm not sure how you only saw one I don't know where they come from. They just keep popping up. I'm not sure how this happens." 236 Mr Eaton could not recall saying those words to Sgt Fitzgerald. He agreed that they couldn't just "pop up", you had to log out of one screen, log in to another and select them. 237 Sgt Fitzgerald deposed that he then set down sat down at his computer and had a look at the Events and there were three Events that caused him concern, however he did not print copies of the Events at that time. He confirmed that printouts of the Events that were attached to his statement as made in December 2009, were the Events of concern to him that day and deposed as to details of each. 238 Sgt Fitzgerald deposed that at that time Const Dzendolet was out of the Station in the police vehicle. He telephoned him and told him he had a job for him to do and to come back to the Station. When he arrived he told him that "I need you to go through David's work with him to complete the outstanding actions. I want you to sit down with him until it's finished". 239 Sgt Fitzgerald confirmed in evidence that he had brought Const Dzendolet back off the road to go and help in fix the problem. He did not agree with Mr Eaton's evidence about how Const Dzendolet came to be involved in assisting with the Events, maintaining that police didn't volunteer to do other police work unless they were told to do it. 240 He did not get involved in what Const Dzendolet and Mr Eaton were doing with the Events. He had given him a direction to go and fix it, it needed to be fixed now. Sgt Fitzgerald continued with his other supervisor duties. 241 Mr Eaton maintained that following the work review with Sgt Fitzgerald he had returned to the front desk and logged on, but did so to the PLAC profile. He did not go and tell Sgt Fitzgerald and was shocked at the number of events. He thought he had about 6 not 14. He maintained that Const Dzendolet saw his workoff and the 14 Events and went and informed Sgt Fitzgerald of them. Once he had done this he then returned and began to help him get rid of some of the Events. Mr Eaton believed that the reason Const Dzendolet went and told Sgt Fitzgerald was basically that he was asking Sgt Fitzgerald if he could help him. Mr Eaton could not remember their exact conversation at the time, it was a Monday morning and Monday mornings at Parramatta were extremely busy. He could remember Const Dzendolet telling him that he would go and tell Sgt Fitzgerald and that's what happened. 242 Mr Eaton said did not know whether he would have raised it with Sgt Fitzgerald but for Const Dzendolet going and seeing him. 243 Sgt Fitzgerald had also referred to this assistance in his report as follows: As Constable Eaton's "work off," had become so disgraceful I supplied him with Constable Luc Dzendolet to support to help him work through his work. After a solid two-hour period, Constable Dzendolet, approached me and informed me that it was like talking to a brick wall. Constable Eaton appearing to be show a, I don't care, attitude. He explained that Constable Eaton often attended the front counter; spoke to the customers supplied then (sic) with an event number but did not take any details. He would then move on to other customers at the counter doing the same, which explained two incomplete events, with no details. 244 Mr Eaton in his March 2009 Response to the s.80 Notice, had responded to these comments as follows: I note in paragraph 38 that Sergeant Fitzgerald attributes certain comments to Senior Constable Dzendolet concerning my competence and my attitude. I have spoken personally to Senior Constable Dzendolet and he has denied to me that he made comments of that nature to Sgt Fitzgerald concerning me. In the light of the discrepancy between his recollection and that of Sergeant Fitzgerald, I submit care should be exercised before relying on the recollection of Sergeant Fitzgerald, and for my part, I deny any suggestion that I did not appear to care about what Senior Constable Dzendolet and I would have been discussing. 245 Mr Eaton acknowledged that on both occasions (13 and 14 April, and as he had also subsequently deposed), he didn't want to let his colleagues down or appear to be incompetent with his supervisors. It was just a coincidence that on both occasions he only provided his CCU profile and not the PLAC profile as well. He maintained that it wasn't his intention not to draw Sgt Fitzgerald's attention to the PLAC profile because he was concerned that if he did so he might form an adverse view as to his competency. He acknowledged however that in failing to provide him with a full account of his work he was in error and that he mislead him but said that was "unintentionally". 246 He accepted that in hindsight failing to provide him with a complete copy of his work was wrong and that was a matter that reflected on the appropriateness of him being confirmed as a police officer. 247 Mr Eaton denied that the reason he didn't show Sgt Fitzgerald his PLAC workoff was because he didn't want him to discover the fact that he had a number of outstanding Events on it. 248 Mr Eaton also said in evidence that if a screen dump had been printed off of the PLAC profile it would have shown his Cases because from what he knew the Cases went across the board and showed up on both profiles but the Events only showed up on one. He also indicated that the screen dump of the CCU profile showing the Cases only identified the number of Cases. When he actually wanted to go into a Case he would go into the next screen which brings up the list of Cases and then he would select one of those cases and that would take him into another screen showing the narrative and comments of the case. He would only have occasion to go into that particular screen when he was adding some note to a particular Case. They needed to update the Cases every 28 days and he would go into a Case every time he was updating it, but that would not necessarily be as frequent as every shift. 249 Sgt Fitzgerald was not aware that a disciplinary process had been commenced against Mr Eaton during 2008. He left Parramatta Command at the end of April 2008 and that was his last dealing with Mr Eaton until he was told about having to come to court. That was the first time he became aware that Mr Eaton had been dismissed. 250 Sgt Fitzgerald acknowledged that he understood that one of the reasons for Mr Eaton's dismissal was the conclusion by the decision-makers that Mr Eaton had deliberately lied to him on 14 April 2008 in not showing him the Events screen. He was never asked about his views on the seriousness of this conduct. He had the view at the time that Mr Eaton was struggling with his workload and thought that was a contributing factor to what occurred on 14 April. He was surprised that it had been relied on in part to dismiss him. He didn't think that the matters that he reported would constitute dismissal. 251 The outstanding Events indicated to him an issue with workload management, however his greater concern, at the time, was the MVA that had become statute barred. 252 Sgt Fitzgerald acknowledged that he had deposed, in response to Mr Eaton's witness statement that he had not alleged untruthfulness in his report of 15 April, .. "it would be inappropriate for me to do so". When taken to his report which commenced with "Dishonesty displayed", he indicated that the word in the report could be interpreted several ways. Dishonesty as in lying, or dishonesty as in not telling him the complete story. It was difficult to say what was in his mind when he prepared the report, but to his best recollection he thought it was more along the lying side. However he then went on to say that it was "the same thing". He agreed that it was "certainly a grey area" as to the degree of deliberateness in Mr Eaton's actions, 253 Sgt Fitzgerald also agreed that in seeing a workoff it would not be unusual to see only Cases and no Events. 254 Sgt Fitzgerald met with Sgt Dunn the next day, 15 April and she asked him to tell her what had happened on 14 April and also to prepare a report, which he did. 255 Sgt Dunn deposed that Sgt Fitzgerald told her words to the following effect: "I don't think he's being truthful about having two profiles and am going to do a report about this and also his performance in regards to organising his time and dealing with his cases". 256 They then both spoke to A/Sgt Sardelich and she recalled Sgt Fitzgerald asking him whether, when he signed off on the Duty book, he realised that there were outstanding actions. When he said he had not, Sgt Fitzgerald then showed him a COPS printout listing a number of outstanding actions. She then asked A/Sgt Sardelich to prepare a report of what Mr Eaton had said to him, which he did. 257 Matters then unfolded as set out in the Background and Chronology above. The Statute Barred MVA 258 Sergeants Bourke and Prasad both gave evidence that it was not uncommon for matters to go statute barred with both PCs and Constables. Sgt Bourke had a PC on his team with two matters that had just gone statute barred. Sgt Prasad indicated that it averaged out that probably every second or third PC, on each team of four teams, would have problems with statute barred MVAs. 259 He went on to say that the first problem was identifying that an MVA was close to being statute barred because at Parramatta there were probably 5, 6, up to 7 accidents per day. It was a very busy Command and the volume of accidents meant picking that up was a difficulty. 260 He indicated a number of steps that he would go in such a case, through sitting down with a probationer to go through what steps they had taken to investigate the accident, speaking to the EDO, preparing a report outlining the issues and then from there it went to the CMT and the issue went to one of the Sergeants to investigate. Generally the outcomes for probationers was that on just about every occasion that lead to a Performance Management Plan being put in place with the outcome being 99% successful as a result of the extra supervision. 261 He also indicated that one of the difficulties in MVAs getting to the statute barred status was because of the 12 hour shift system where there were two day shifts and two night shifts and then four to five days off. It was a matter of being at work to investigate the actual accident and investigating other matters as well. The matter sometimes had to be sent to another Local Area Command because the person resided in that area. 262 He agreed that in some cases it wouldn't have mattered what was done, the evidence wouldn't be able to have been obtained to pursue a prosecution or to pursue the case. 263 Sgt Hedges also agreed that it was not uncommon for MVAs to become statute barred when they were in the hands of PCs. 264 Both Sergeants Bourke and Prasad also gave evidence about the general workload at Parramatta in supervising PCs. There were around 18 split up between the supervision of three Sergeants, in teams of three, so each supervisor had about 6 to look after. Any one of those police officers could have up to 10 cases current, in addition to that supervisory work, as well as their own workload. 265 SC Sardelich also agreed that there was always a workload issue at Parramatta. 266 Whilst SC Sardelich had not had a PC under his supervision have an MVA go statute barred he said "it is relatively common". He took proactive steps to intervene and say these things need to be done, maybe draw up a bit of a checklist and say, this was what you had to do. 267 Supt Redfern acknowledged that the PLAC was one of the major metropolitan Commands in New South Wales. They had an authorised strength of 209, which was a big Command. In February 2007, 25 PCs arrived on the same day he did. That was a substantial number of probationers to be managed across the various teams. 268 Sgt Latham was the FTO for Mr Eaton for the first 6 week block in Session 3 in 2007 and also the first 6 week block in his second attempt at Session 4 2008. She could not recall that it had been brought to her attention that Mr Eaton had an MVA that had become statute barred 269 Sgt Hedges said that when it came to her attention on the 9 March that the MVA was statute barred, she did not realise that it had been statute barred since 30 September 2007. She wasn't aware if anyone else had raised it with Mr Eaton, but agreed that if it was statute barred in September and came to their attention in March, then there was six months between the time it was statute barred and when it came to her attention as an EDO. She agreed it was also an MVA that became statute barred in his first four months of probation. It was not her role to follow up why the matter became statute barred. It was her understanding that the Inspector (Inspector Jobling) had already become aware of the matter and obviously commenced an investigation. 270 Sgt Hedges also agreed that there was another MVA about which she gave Mr Eaton some advice in his Duty Book and indicated, "good work on this one", because he seemed to have progressed the case within the usual timeframe at that stage. He seemed to be making all attempts to progress the investigation. She reminded him that he needed to action that case within six months of the accident occurring. She did not do any further follow-up with Mr Eaton in relation to that case. 271 Sgt Dunn was not sure when that MVA had become statute barred but was also surprised that it had not been picked up earlier and surprised that it was not picked up until March 2008. It was not her role to supervise on such a micro level, it was would be the Field Supervisor's job. She agreed that they were required to look through the workoff and that they had the capacity to do that. 272 SC Sardelich was not aware that the particular MVA concerned with Mr Eaton had actually gone statute barred in September 2007. He was only looking at assessing this period, not that period He would have hoped it would already have been addressed by other supervisors. When he was told that it had only been raised with Mr Eaton in March 2008 he responded "yes, that's not too good". He agreed that it should have been addressed through whatever mechanism was appropriate. He also agreed that he would not rely on a statute barred MVA to fail a PC and agreed that the purpose of the probationary period was in addressing issues like that. 273 It was Sgt Fitzgerald's evidence that whilst he was aware of when the MVA became statute barred, he agreed that apparently there had been no follow-up until shortly before he dealt with that on 14 April. He was also unaware of what happened with Mr Eaton in July through to September 2007. 274 When asked whether that was reflective of the lack of supervision as referred to in his report, he responded as follows A. I don't think that this - well it's a two pronged answer. The supervision from the current team Sergeants prior to my arrival, which was Whatson and Beeche, yes, should have been doing their six-week reviews, they should have picked it up. The supervision from the traffic point of view, the traffic sergeant, which was Senior Constable Sutors at the time, and I certainly know from that point when I was the traffic sergeant, no accidents got over four months old. At four months I would be chasing that particular Constable around the room if necessary until he fixed it. 275 Sgt Fitzgerald then went on to give evidence (that had not been referred to in his witness statement) that he did a review of the Command after speaking to Supt Redford as a result of Mr Eaton's issues. He then gave him a printout of all statute barred accidents from the Command, and all the ones that were five months old, four months old, right down to 3 months old. He gave him a hard copy of that. He also had a face-to-face meeting with Supt Redford and SC Sutors and they sat down and he told them this was the problem they had. As a result of that new measures had to be put in place in the Command to stop this. 276 He went on to indicate that this list was compiled about two weeks later, on his first night shift after 14 April. It was a consecutive list from oldest to youngest, copied onto an A4 sheet with a cut and paste straight from the Police computer system. It had the Event number, name, title and who was in charge of it. He then highlighted the extremely bad ones in red, he then went to yellow, into green, and the rest were just left white. The list included former police officers, current police officers, PCs and Constables. He didn't believe there were any Senior Constables but he couldn't remember the list now. There were roughly speaking about 14 statute barred matters dating back to 2004. He also printed out those that were within one or two months of becoming statute barred in addition to that 14 and there were pages and pages of those. The document was about 15 to 20 pages long. This evidence was not available when Supt Redfern was giving evidence. 277 In Mr Eaton's response to the Notice issued by Asst Commissioner Corboy he had denied that he had made little or no overt attempt to identify the driver responsible in this particular accident or to seek the assistance of more experienced police officers. He conceded that the attempts he made were recorded in the "narrative" and not the "action" field and also acknowledged that he had failed to document every phone call he made to the driver of the motor vehicle and failed to document the attempts he made to discuss the case with senior officers. He asked both Const Latham and SC Sutors on a number of occasions about further investigations he should undertake and neither could assist him with any suggestions. He was not certain what further enquiries he could have made to identify the driver responsible. No suggestion was contained in the Notice. He believed that if further lines of enquiry ought to have been made, then comments should have been added to the narrative or action fields, which they were not. 278 In Mr Eaton's undated SOARs report to Sgt Dunn he set out all the actions that had happened in relation to this accident and what actions he had taken. On 13/08/2007 the job was sent to Liverpool Police Station to a PC to attend the address of the person of interest and issue a form of demand. Mr Eaton was advised on 27/09/2007 that the PC was unable to complete the job. He then spoke with SC Sutors, the Traffic Supervisor at Parramatta who contacted the person via phone and "....left a persuasive message on his phone for him to contact police immediately". Mr Eaton then detailed that he had also made a number of attempts to contact the person by phone and had left messages but did not enter a new action each time he tried to contact the person or spoke to someone for help as he believed he would be able to complete the case before the statute date. He also noted ....."I have since learned to action everything as a result of this case". He also believed that he'd made every effort at the time to investigate this incident. 279 Mr Eaton acknowledged that he had gone to see SC Sutors and followed up on the requests she had made (as noted in COPS) in early September and November 2007. 280 He also acknowledged that a memo was sent to him by Sgt Hedges on 9 March 2008 saying that he had to go and see Sgt Dunn, and that he didn't go and see her that day. He did perform the workoff check that morning when he got to work, but he would not necessarily have gone into every Case and this memo would have appeared as a comment in the Case. If he had gone into the Case and found the comment he would have gone and seen her. He did go and see Sgt Dunn some time on or about 10 April. The e-mail from Sgt Dunn said "will" and he remembered that when he read that he "ran straight to her office basically". 281 Mr Eaton said that he completed the SOARs report pretty near to when he got Sgt Hedges' comments, and on that day, or very near that day, he took it up to Inspector Jobson. He did not enter it in COPS. He had the report and gave it to the Sergeant. 282 Supt Redfern, on being advised that there had been evidence that it was not uncommon for MVAs under PCs to become statute barred., responded "well I hope not in my Command". 283 He went on to say that he had had complaints generated about statute barred MVAs. When they became statute barred they investigated why they became statute barred. There would be the variety of reasons that it might not be able to be reached but every possible attempt was made. That didn't just apply to probationers. He agreed that it was possible that no matter what had been done on an MVA that it would have become statute barred without being able to glean any information that would have enabled the matter to be progressed. 284 He agreed that he would expect a PC who had responsibility for investigating an MVA would be supervised in respect of that investigation but said it was the sort of Event/investigation that would be given to a PC as an ideal training vehicle. He agreed he would expect, in the normal course of events, that one of the supervisory officers involved would identify the issue before an MVA became statute barred and that supervision would occur more closely the more junior the PC was. He would expect closer supervision of everything a PC did when they were in the early stages of their training and expect a supervisor to be making sure they were supervising that work. 285 He agreed that if in fact they had identified that the matter had become statute barred it would be a matter of concern to him and he would expect a good supervisor to pick up quickly that it was about to go statute barred and also if that hadn't been identified that that would be picked up by a supervisor. 286 The following exchange then took place: Q. And the reason I'm asking you all of this, Superintendent Redfern, is because that's exactly the situation that applied with Mr Eaton. A. To the best of my recollection it had been identified on three or four occasions - and again I don't have the documents in front of me, but it had been identified on three or four occasions where it was recorded on COPS that this is outstanding and this needs to be followed up. I think by Megan Suters and I think by Sergeant Walsh. So to the best of my memory - you'll excuse me, but I haven't got it in front of me, but that was the case. I think the other thing that concerns me is that if you've got a Probationary Constable that's not coping or not working, then I would expect them to be going to their supervisor and telling them they have this issue and asking them about it. Q. All right. A. It's difficult for a supervisor - and I'm not telling you anything you haven't already read that I've said - it's difficult for a supervisor to adequately assist a probationer who isn't telling them that they're having problems. Q. Well, that's certainly the case, but it is also the role of a supervisor to be proactive, is it not? A. Yes. Q. You're not suggesting that it all has to come from the probationer, are you? A. Of course not. 287 Supt Redfern was taken in detail through the specific evidence relating to the chronology concerning this MVA. 288 He agreed that it appeared that SC Sutors was wrong when she said on 8 November, "this matter is about to become statute barred". He also agreed that it was in fact already statute barred and that that information was incorrect. He also agreed that, following these documents, nobody up until this point of time had identified that it had become statute barred. He also agreed that they were the only documents they had. 289 He also agreed that it was some 4 months later on the 9 March that Sgt Hedges advised that it was statute barred and agreed that that wasn't very acceptable management of that. 290 When asked what action he took in respect of SC Sutors or FTO Dzendolet or supervising Sgt Bourke or EDO Dunn or Sgt Hedges in respect of their handling of this issue, Supt Redfern indicated that he believed there was an internal investigation which was conducted into that but he couldn't remember the outcome. He agreed that he did not mention that in his Report. He said he expressed the view in his Report that it was difficult to hold supervisors responsible for failing to properly supervise, when a PC was "actively concealing" their work. He said there was no evidence that Mr Eaton was bringing it to the attention of his supervisors. 291 He agreed that someone not asking for help was not the same as someone concealing something. He maintained that he had not ever made the suggestion that Mr Eaton had deliberately concealed that he was having problems with that MVA in September 2007. 292 Supt Redfern said that Mr Eaton had supervision from the Field Training Officers and also his supervisors but agreed that he did not verify that that supervision had been given in respect of this specific issue and he agreed that he had no way of knowing whether it was given or not. The Duty Book and workload issues 293 Supt Redfern deposed that sometime in December 2007 he was informed by Sgt Dunn that Mr Eaton had failed PPP242, passed the Duty Book requirement for PPP241 but not submitted the assignments and therefore failed that subject as well, with the result being that he would have to repeat both subjects. He then spoke to Mr Eaton about his need to address his work and told him that his possible policing career was in jeopardy because if a PC failed a subject twice they would be excluded from the university course. He told him he was "on the radar and he would be identified as a student at risk". He further deposed that at the time it appeared that the only issues he had were academic. 294 Mr Eaton could not recall having any such conversation with Supt Redfern and deposed that the only one-on-one interaction he had with him was receiving the Local Area Commander's award in recognition of good police work. He thought that he was perhaps confusing him with another PC as he recalled overhearing another PC's recollection of such a conversation with Supt Redfern. He acknowledged however that he did have a similar conversation with Sgt Dunn at around this time. 295 SC Latham said she had spoken to Mr Eaton in about week 3 or 4 of the 6 week block of Session 4 about his time management and asked him if he had any issues with his workload or had problems. He told her that he was not managing his workload, there was too much to do and he didn't know what to do first. He seemed "a little upset" about this and she told him she would speak to EDO Hedges about managing his workload. She then spoke to Sgt Hedges in early March and told her that Mr Eaton was having difficulty managing his work. She completed the FTO report (see comments in Background and Chronology - Specific Training above) indicating that she had spoken to him and that he may need some supervision. As far as Skill Unit 7 was concerned, she believed he had met or exceeded the benchmarks, but assessed him as below the benchmark standard for Skill Unit 8. After completing the report she had no further supervisor involvement with Mr Eaton. 296 Supt Redfern agreed that in the course of his investigation he did not make any enquiries of Sgt Hedges as to what she did in respect of this conversation about Mr Eaton. He did not know if she had followed up on the conversation. He accepted that SC Latham was identifying the need for specific monitoring and supervision and that he didn't know whether that had occurred. 297 After Sgt Hedges conducted her review of Mr Eaton's workoff on COPS on 9 March (see above) she sent him the e-mail about the MVA that had become statute barred and told him that he needed to see Sgt Dunn at his first opportunity. She deposed that after she sent this e-mail Mr Eaton did not approach her. She understood that Sgt Dunn sent an e-mail on 10 April directing him to see either of them on his next working day. He did not come to see her after 10 April as he understood he was directed to do by Sgt Dunn. 298 Sgt Dunn acknowledged that she had signed off on his Duty Book on the 12 March 2008 and noted that time management was a major issue and made suggestions to assist him (see Background and Chronology above). She could not remember whether between 12 March and 14 April she discussed any further those recommendations with Mr Eaton. She acknowledged that it was possible that she did not. 299 It was Sgt Dunn's evidence that there were a couple of reasons as to why she failed Mr Eaton on his Duty Book. One was the integrity issue that was being investigated and the other was the fact that he had a number of outstanding Events and Cases and some statute barred matters and would require greater supervision if he was to progress to Session 5. She also said it would not have been a difficulty in providing that supervision. 300 She was also not sure whether some of those outstanding Events had actually been dealt with by Mr Eaton and Const Dzendolet. However she also indicated that the fact that he had cleared some of those events between 14 April and 23 April 2008 would not have changed her view in regards to him requiring extra supervision and perhaps another FTO to assist him because of some of the comments that were made through the Duty Book by other FTOs in regards to his time management and that had been raised in the first six-week block of Session 4 that he repeated. 301 Sgt Dunn discussed with Supt Redfern the possibility of passing him through the Duty Book on Session 4 and moving him on to Session 5. She raised a couple of options but they were rejected by Supt Redfern. She agreed she raised withdrawing him from PPP241 so that he wouldn't record a fail in that subject. Supt Redfern also rejected that suggestion. It was Supt Redfern who had the ultimate capacity to make the decision. 302 However CSU subsequently confirmed that Mr Eaton had double failed PPP241 making her comment in the Duty Book about being placed on a PDP invalid. CSU also confirmed that he could not be withdrawn from PPP241 at this stage. 303 Supt Redfern deposed that he was of "the clear opinion" that there had been a "substantial failure" by Mr Eaton to meet the operational requirements of the subject both in terms of his failure to meet satisfactory levels of competence with respect to his duties, to supply the correct workoff to supervisors, and his failure to progress the MVA. This meant he had failed the subject for the second time and would therefore be excluded from the ADPP for a period of two years with no guarantee that he would be permitted to resume his studies after that time, that was entirely discretionary for CSU. He was aware from Sgt Dunn that Mr Eaton had handed in the assignments, although they were late. 304 In relation to the meeting between Mr Eaton, Sgt Dunn and Supt Redfern, Mr Eaton deposed as to the journal entry made by Supt Redfern and the suggestion that the matter would be reviewed over 10 days and had said that if Supt Redfern had reviewed the matter towards the end of the 10 days he would have found that with the assistance of Const Dzendolet he had completed the majority of the matters on his workoff and the balance was up to date. 305 However Supt Redfern did not consider that this took the matter very much further because it displayed that had assistance been sought by Mr Eaton from a senior more experienced operational police officer, which could have been sought at any time, then these matters may have been addressed at an earlier point. The fact that he could sit down over a period of time with an experienced officer and solve the immediate problems didn't give Supt Redfern confidence that he met the operational capacity to be able to do what he needed to do. 306 He went on to say that his confidence was lacking in that regard because of the delay that had occurred, the absence to do operationally what should have been done and because there were indications from him at all times that he was going well and he made comments noting as such. There was this constant position that he was performing well and well above what he needed to do, but that clearly wasn't the case. 307 Supt Redfern did not agree that the field supervisor actually had to sit down with the PC and identify the workload on the computer screen side-by-side with the PC but said they should certainly go through the Cases and the Events to make sure those matters were progressing properly. They did have to review it by going into the system themselves and he confirmed that this could be done. 308 He also indicated that he had not spoken to any of the officers involved with Mr Eaton's Duty Books. He had spoken to the EDO's who he knew spoke to the FTO's and supervisors and then communicated to him their views. There were, on occasions, different views from different FTO's and different supervisors. By virtue of the value of time, and the line of command, what he was looking for was advice from those he tasked into particular areas to provide advice. The Investigation 309 Mr Eaton deposed that the interview with A/ Inspector Dowling took place on his night shift, commenced around 9:30 p.m., went for about three hours and finished after midnight. He deposed that: Although Acting Inspector Dowling typed as the interview progressed, he did not type a verbatim account of every question and answer. For some of the questions we would have a discussion and then he would type down an answer based on that discussion. I do not now recall the discussions that we had, but I remember telling Acting Inspector Dowling: i) that I had been struggling with my workload ii) that, generally, I did not want to let down my colleagues, nor did I want to appear to be incompetent to my supervisors. 310 He deposed that the information had then been summarised by A/Inspector Dowling at question 31 (see Background and Chronology above) in such a way that it became the reason why he didn't tell A/Sgt Sardelich and Sgt Fitzgerald about the other outstanding workoff. 311 He deposed that he now realised that he should have changed the answer when his signed off on the record of interview but was tired and stressed about the whole issue. He also believed, and continue to believe, that A/Inspector Dowling was genuinely attempting to understand what had occurred and try and help him when he conducted the interview and he did not feel he needed to correct it. As a Probationary Constable he did not know the procedures of participating in a typed record of interview well enough and the importance of meticulously reading through the questions asked and the answers provided in order to check their correctness before signing such a document. 312 Mr Eaton accepted that at Goulburn College he had received training in relation to conducting criminal records of interview, and was trained to understand the importance of recording answers accurately and allowing the witness who was being interviewed to be given an opportunity to clarify any answers. He acknowledged that he would have taken that knowledge and understanding with him into the interview with A/Inspector Dowling. 313 He agreed that he was provided with an opportunity to clarify or correct answers that he gave to the extent that he thought they were inaccurate. He didn't think they were inaccurate because they had a conversation, they just weren't verbatim. He agreed that he didn't raise any concerns with A/Inspector Dowling and signed off on the record of interview. 314 He also acknowledged that when he received the Notice in February 2009 indicating that dismissal was being considered, he knew then the seriousness of the matter and could have then said that his answer at question 31 was "missing some bits". He said he didn't want to seem critical of A/Inspector Dowling. He also acknowledged he had the benefit of advice from his Solicitor in preparing his Response to the Notice and took no action or advised NSW Police about his concerns in relation to question 31 for the better part of 19 months. 315 When asked whether he thought this raised questions as to his suitability to be a member of the New South Wales police force he said "I just didn't want to look like I was blaming anyone" and went on to say that "I hope it wouldn't, but yes, I guess it does, yes, I hope it wouldn't". 316 Mr Eaton said he was not asked any questions about his workload management issues during the interview with A/Inspector Dowling. 317 He was also not asked about the allegation of deception on 10 March 2008, or his exclusion from the ADPP which was not an issue at that point of time. Those issues first came to his attention when he got the Notice. 318 Supt Redfern acknowledged that he made no mention in his evidence of the report by Detective Inspector David Egan-Lee. He said that what David Egan-Lee did was a quality assurance check on the investigation by A/Inspector Dowling and he referred to that in the statement he made to Asst Commissioner Corboy where he said that he did not accept either the findings of Dowling or Egan- Lee with respect to one of the matters. 319 Supt Redfern was asked by the Commission why he decided he was unable to agree with the report by A/Inspector Dowling who had actually interviewed the person and there was some element of personal contact that entered into that and there were two people who said they found certain things and he had decided he didn't agree with them. He responded as follows: A. Commissioner, there is nothing unusual in that. We would have many complaints. In a command like Parramatta, there are a number of complaints at any given time. The complaint matters are local management issues, as they are called, which goes through the CMT. The very purpose of having the CMT is so they can be a discussion about those issues and about what arises from them. Sometimes findings are accepted, sometimes findings are rejected based upon a total view of all the evidence. Can I suggest to you there is nothing even unusual about that in the context of a criminal investigation. That is, the criminal investigators who look at matters on occasion have those reviewed by senior officers who come to different views about the course of action that should be adopted. There's nothing unusual. 320 He accepted that the consequence for Mr Eaton, a Probationary Constable, was rather serious in that ultimately he lost his job. Submissions on behalf of the Applicant 321 Ms Lowson made extensive oral submissions amplifying the written submissions filed (Exhibit 14) and in so doing took the Commission in some detail through the transcript of the evidence supporting those submissions and upon which the Applicant relied and that evidence which rebutted the Respondent's case. The submissions also detailed the relevant chronology of events leading up to Mr Eaton's dismissal. Submissions as to the matters relied upon to terminate Mr Eaton were dealt with under the following relevant headings. Exclusion from ADPP 322 The evidence established that Mr Eaton was entitled to apply to be readmitted to the ADPP from April 2010. In those circumstances the respondent did not oppose the submission that any order for reinstatement may be made conditional upon him being accepted back into the ADPP by Charles Sturt University. Inadequate Investigation of the MVA 323 Ms Lowson submitted that there was no evidence to suggest that had Mr Eaton investigated further, this MVA could have been pursued. Thus, if the MVA would not have been prosecuted in any event, this significantly mitigated the seriousness of the MVA becoming statute barred. 324 Further the evidence of more senior officers was that PCs were given MVAs to investigate because they were the simplest, and least serious matters that police deal with. Also due to the volume of MVA's dealt with at Parramatta, (on the evidence about 5 or 6 per day), it was difficult for supervisors to actually stay on top of the issue with probationers. Mr Eaton's situation as a Probationary Constable was not unusual either in respect of an MVA becoming statute barred or in respect of his workload management issues generally. 325 It was submitted that the MVA became statue barred when Mr Eaton had been a PC for just over four months, the time when the most supervision should have been occurring – yet no senior officer identified that the MVA was about to become statute barred, nor indeed that it had become statute barred, until 9 March 2008. This also mitigated the seriousness of this issue. 326 It was submitted that generally the respondent's witnesses demonstrated a degree of surprise as to the time at which the MVA became statute barred (30 September 2007) as compared to the time frame in which action was taken against Mr Eaton for this issue (from 9 March 2008). Further, the general consensus was that a MVA becoming statute barred was not unusual for either PCs or for Constables. There was no evidence that a MVA becoming statute barred, in and of itself ,was of significance other than for the purposes of managing a PC. 327 Ms Lowson further submitted that there was ample evidence that Mr Eaton was not subject to persistent supervision during his time as a PC with the following indicators pointing to the position that in 2007 his work was not being properly supervised: 1. The fact that the MVA became statute barred on 30 September 2007 without adequate intervention prior to that date suggests that the process adopted by other officers such as Sgt Fitzgerald and Sgt Prasad in respect of managing MVAs was not adopted by any Sergeant responsible for supervising the Applicant. 2. The fact that the MVA becoming statute barred only came to the attention of any supervisor in March 2008 indicates that the failure to supervise was continuing up to, and following, Mr Eaton's secondment to the CCU. 3. Further it was also apparent that once it had been identified in March 2008 that Mr Eaton was having some difficulties in managing his workload, there was no pro-active attempt to assist him with that workload between that time and the middle of April 2008. Instead, the focus was on having him address the statute barred MVA, an issue which he frankly considered in his mind was of somewhat historic nature and, to that extent, was not of particular priority. Given the evidence in the proceedings, there had to be a real question mark over whether any of the people involved in directing him to address the MVA, were aware that it had become statute barred on 30 September 2007 and that it was not something that become statute barred as recently as March 2008. 328 It was submitted that, in all the circumstances, no weight should be attached to the MVA issue and it should be disregarded. However if taken into account, it should be given little weight in the overall scheme of the Applicant's performance of police duties. Deception on 13 and 14 April 2008 329 It was submitted that Mr Eaton accepted that on both of these days he failed to provide A/Sgt Sardelich and Sgt Fitzgerald with a full picture of his outstanding workload, however he denied, and had always denied, that he deliberately attempted to mislead either officer in that regard. His explanation for the error arising related to him having two computer profiles – the initial PLAC profile and the one allocated to him when seconded to the CCU. 330 It was submitted that Mr Eaton's evidence that he did not deliberately mislead either A/Sgt Sardelich or Sgt Fitzgerald, but rather did not turn his mind to the issue of which profile he was using when he accessed his workoff on each occasion, should be accepted. 331 Ms Lowson summarised the relevant evidence relied on in relation to the maintenance by Mr Eaton of two profiles as follows: 1. Sgt Fitzgerald said it was the responsibility his supervisors at the CCU to have closed off his CCU profile once he had completed all of his CCU tasks. 2. SC Sardelich was unaware that an officer could have more than one profile until the issue arose with Mr Eaton. 3. Sgt Prasad was aware that an officer can have multiple profiles from his own personal experience. 4. There was no evidence that since this issue arose with Mr Eaton any steps had been taken to address the issue with PC's who are seconded out of the PLAC. 5. Sgt Fitzgerald was aware of occasions where PCs had deliberately used the resubmit function to make it look as if they had less work on their workload than they actually did, those PCs had been dealt with by their Local Area Command by way of counselling or something similar. 6. All of the supervisors had the capacity to access all of Mr Eaton's workload without his assistance. There was also no uniformity of approach amongst supervisors in respect of that even though the Duty Book directions to the Field Supervisor imply that they should be checking the workoff itself and not simply a printout of the workoff. 7. In circumstances where PCs had more than one profile, it would seem to be incumbent upon supervisors to undertake such a separate check to ensure that a PC was disclosing all of their workload. If it was known amongst PCs that supervisors had the capacity to independently check workload, then it would reduce if not eliminate the temptation to deliberately minimise workload by whatever mechanisms were available. 332 It was further submitted that the Commission should accept the Mr Eaton's explanation as to how the question and answer at number 31 of his Record of Interview came about. The fact that the respondent did not adduce evidence from Sgt Dowling meant that a Jones v. Dunkel inference could be drawn that his evidence would not have assisted the respondent in answering Mr Eaton's evidence as to the circumstances of the interview. Clearly this method of conducting an interview, where Mr Eaton was required to answer questions put to him, could lead to unfortunate situations such faced Mr Eaton now. 333 It was submitted that it might be accepted by the Commission that Sgt Dowling was attempting to assist Mr Eaton, particularly in the light of his report and recommendations. Unfortunately that was not the outcome with Supt Redfern rejecting Sgt Dowling's conclusions. 334 There was no evidence that Sgt Dowling was sanctioned, either for the way in which he conducted the interview, or the conclusions he drew in his report. Further, those conclusions were supported by Detective Inspector Egan-Lee. From the evidence it was obvious that Detective Inspector Egan-Lee is held in high regard by his officers. 335 Mr Eaton had accepted from an early point in time that he was in error in not ensuring that all of his workload was brought to the attention of A/Sgt Sardelich and Sgt Fitzgerald. He further accepted that he should have been more proactive in seeking out help with his workload. He also explained how a mix up with the ADPP had led him to believe, in early April, that he had double failed his ADPP course and would be precluded from completing the degree. The Evidence of Superintendent Redfern and Sergeant Fitzgerald 336 Ms Lowson also made submissions about the evidence of Supt Redfern and Sgt Fitzgerald. 337 In relation to Supt Redfern it was submitted that, with the greatest of respect, it appeared that he took a particular and stringent view of Mr Eaton's perceived conduct and this had the effect of making him appear biased against him in his evidence . The following examples were given: 1. His assertion that statute barred MVAs were not an issue in his command when the evidence of Sgt Fitzgerald was that he had specifically raised this issue with Supt Redfern within a couple of weeks of 14 April 2008 by preparing a report showing a number of statute barred MVAs in the period between 2004 and 2008 and further pages of MVAs that were at risk of becoming statute barred at that point in time. 2. His evidence that he took into account his belief as to Mr Eaton's supposed inaction in relation to the ADPP without putting that matter to him and without having a reasonable evidentiary base for it. 3. His statement that Mr Eaton's supervisors were, to his belief, subject to an internal investigation in respect of their failure to supervise him. It was noted that no documents were produced to support such an investigation having taken place. It was submitted that Supt Redfern's evidence in this regard demonstrated his belief that the supervisors ought to have been brought to account for their failures in supervision of Mr Eaton. At the same time, however, he appears not to have taken any of those matters into account when processing the disciplinary investigation and making recommendations to the ultimate decision-maker. 338 In relation to Sgt Fitzgerald, some of his evidence was relied on by Mr Eaton to support his application, however the following somewhat unsatisfactory evidence was noted: 1. He seemed to take a particularly strong view that Mr Eaton should have approached him to have his Duty Book signed off. However in cross-examination he was not prepared to concede that SC Sardelich was in fact on Team 3 and had prior knowledge of Mr Eaton, both being reasons to support Mr Eaton having approached SC Sardelich to get his Duty Book signed. 2. Further, having become aware of those matters it would have been appropriate for Sgt Fitzgerald to review his somewhat stringent approach. He was unwilling to make this concession, notwithstanding that it appeared from his evidence that these were factors that influenced his apparently strong position in respect of Mr Eaton. 3. He maintained his stringent view in the face of his evidence that on meeting with Mr Eaton on 14 April to undertake the six weekly review, he did not first ask him for his Duty Book. This was wholly inconsistent with his evidence that he had actively and frequently asked him for his Duty Book prior to this date. 4. Even when confronted with evidence that he had only been in the position of "supervising sergeant" for a period of less than 3 weeks prior to 14 April, had only worked a small number of shifts with Mr Eaton and, an even smaller number when they both started at the same time, he would not make any concessions about his pursuit of Mr Eaton for his Duty Book. 5. He also changed his evidence about when he asked for it, from being at the morning muster, to when Mr Eaton returned to the station during the course of the day. His evidence on this should be disregarded. 339 The Commission should be satisfied that Mr Eaton was not aware that Sgt Fitzgerald was, or had become, his supervising sergeant; he did not deliberately withhold his duty book from Sgt Fitzgerald and he did not "shop around" for a favourable supervisor. 340 Further in relation to Sgt Fitzgerald's role as Mr Eaton's supervising sergeant, he had agreed that there was no way for a PC to know that he had become his supervising Sergeant other than by reason of asking for the Duty Book to be produced. This supported Mr Eaton's evidence that he was unaware that Sgt Fitzgerald was his "supervising sergeant". Also there, there did not seem to be a specific role of supervising Sergeant other than whoever was the most senior Sergeant. Mr Eaton's evidence was that he always had the Station Supervisor sign his Duty Book and there was nothing put against that by the respondent. 341 In Mr Eaton's case, (and this was supported by Supt Redfern), it appeared there was a rotation of Sergeants and perhaps a dearth of Sergeants fulfilling this role. Again, his evidence that he had not previously been required to undertake the 6 weekly workload review prior to doing so with Sgt Fitzgerald should be accepted. Sgt Fitzgerald's doubt in this regard was without foundation. It was also noted that on the evidence of Sgt Prasad, the workload for Sergeants was already significant and there was limited time available to undertake the extent of review that was, strictly speaking, required when monitoring a PC. 342 Sgt Fitzgerald also expressed in his evidence his opinion that Mr Eaton would not make a good police officer. When pressed, it appeared that this opinion was based solely on what he had read in Mr Eaton's evidence, namely that he was having difficulties at the relevant time juggling his workload and his personal relationship with his girlfriend. 343 It was submitted that Sgt Fitzgerald's opinion in this regard was of no weight and indeed, on one view, seemed quite unreasonable. Taken together with his dismissal of the very substantial support of Mr Eaton as demonstrated in the Duty Book and his apparent view that officers had effectively made their comments on the run, or on their way out the door, it was submitted that his views should be disregarded. 344 It was submitted that of more importance for consideration was the strong support of Mr Eaton from his colleagues, together with the Duty Book history and his work performance between May 2008 and his ultimate removal in July 2009. In respect of that work performance there was no blemish, notwithstanding the stress of performing work with the sword of dismissal hanging over his head. Probationary Status 345 It was submitted that importantly, the difficulties arose during Mr Eaton's probationary year as a Constable – the year set aside for learning on the job. It was clear that whilst he excelled at many aspects of his work he had problems from September 2007 that impacted, firstly on his academic performance, and then on his management of workload. Throughout this period, the evidence supported the conclusion that he was inadequately supervised, notwithstanding being placed on a PDP in January 2008 in relation to his academic performance. 346 It was also submitted that the evidence of a number of officers with extensive experience supervising and mentoring PCs was that probationers often had an inflated perception of their capacity and as a consequence, or in any event, often had difficulty asking for assistance. 347 Further, it was submitted that the ability to seek assistance was one of the skills that is sought to be developed during the probationary period and was a skill that even senior officers need to possess. 348 In this case, ironically, the difficulties for Mr Eaton were exacerbated by his achievements and the recognition from other officers that his work performance was above average in many respects. This led to Mr Eaton feeling that he would be letting his colleagues down if he admitted to not managing his workload, impeding further his preparedness to seek out assistance with his events and cases. 349 It was submitted that importantly Mr Eaton had learnt a significant lesson regarding the need to ask for help, and it should also be could be taken into account that no further problems arose during his period of restricted duties. 350 In relation to the 14 Events it was submitted that whilst there was a workload management issue it wasn't at the highest end of the scale in terms of being a problem and it had to be seen in the context of Mr Eaton otherwise demonstrating great prowess as a police officer in the other areas of his work. The evidence was that most of the events were cleared within a week to 10 days, and this was not challenged by the respondent's evidence. It was accepted that this was done with assistance. The decision-making process 351 Ms Lowson submitted that should be noted that the decision-maker, Assistant Commissioner Corboy, was not called to give evidence. The Commission had previously criticised respondents where the decision-maker was not called to explain the circumstances in making the decision (citing Warren v. Department of Education and Training [2009] NSWIRComm 1032 and Jason Cockayne v Hurstville City Council [2009] NSWIRComm 1013). 352 The only person available for cross-examination was Supt Redfern who made the recommendation to Assistant Commissioner Corboy. However it was apparent from his evidence that he failed to give any or any adequate weight to the circumstances of Mr Eaton's errors of judgment when assessing the appropriate penalty. There was no explanation from Supt Redfern or anyone else as to how the "disappearance" of the 10 March 2008 allegation from the Notice of Dismissal was arrived at, nor how that was taken into account when proceeding to impose the same penalty that had been foreshadowed in the Notice of Dismissal. 353 There was little doubt that the circumstances of the MVA becoming statute barred, in the absence of any evidence put forward to suggest that, had Mr Eaton taken different steps, there would have been a possibility of prosecuting the MVA, was in and of itself was not so serious a matter that it warranted inclusion in the removal Notice. 354 It was submitted that the fact that Mr Eaton was precluded from continuing his studies was a reason that was validly taken into account in the decision to dismiss, however, it should have been given little weight unless the decision-maker was satisfied that the decision to fail him on his Duty Book was the correct decision. Had that decision not been made, then he could have continued with his studies whilst he also continued to perform restricted duties. 355 It was submitted that in this regard, there was genuine concern as to the apparent difference between Sgt Dunn's view that she would not independently have failed the Duty Book and Supt Redfern's view that he was supposedly failed on the Duty Book on the workload issue alone. It was quite clear that Sgt Dunn believed that the integrity issue was part of the reason for failing him in his Duty Book. This difference in the evidence was difficult to reconcile, and suggestive of Supt Redfern attempting to portray the decision-making process as being limited to performance issues, thereby inflating the seriousness of these issues. Further, there was no evidence that Assistant Commissioner Corboy undertook any analysis of this sort in respect of Mr Eaton's performance issues, or at all. 356 It was submitted that the Commission would be satisfied that the performance issues – the statute barred MVA and the workload management issues – would not ordinarily, and should not have led to disciplinary action. Rather these issues should have led to closer monitoring and more intense support to ensure that an otherwise talented PC learnt the important time management lessons during his probationary period. 357 Ms Lowson then summarised the position concerning the investigative process concerning Mr Eaton as being as follows: 1. A/Inspector Dowling investigated the statute barred MVA and the "deception" on 13 and 14 April 2008 and concluded that additional training and performance management would be appropriate. 2. Detective Inspector Egan-Lee reviewed that investigation and concluded, like A/Inspector Dowling, that managerial action was appropriate. 3. Supt Redfern rejected both of these recommendations and instead recommended termination of employment in his report of 16 July 2008. 4. By some unexplained process, some eight months later, Assistant Commissioner Corboy gave Notice foreshadowing dismissal, and some five months later terminated Mr Eaton's employment. 5. There was no evidence before the Commission as to how Assistant Commissioner Corboy assessed a number of matters, if at all. 358 It was submitted that, as Assistant Commissioner Corboy had not been called to explain his decision making, the Commission, as decision maker, was entitled to take all mitigating matters identified in the evidence into account on the presumption that the original decision maker gave them no weight at all. 359 It was further submitted that in this matter the question for the Commission's consideration was how to balance on the one hand, Mr Eaton's errors in not seeking assistance to deal with his increasing workload and not ensuring that Sgt Fitzgerald and SC Sardelich were made aware of his entire workload with, on the other hand, the fact that his problems in March/April 2008 were exacerbated by a lack of supervision. Had proper supervision occurred from March 2008 as recorded in his Duty Book, the workload would not have built up in the way that it did. 360 Ms Lowson also emphasised that Supt Redfern did not go back at any time and speak to Sgt Fitzgerald to explore the matter more fully nor did he speak to SC Sardelich about whether he thought there was deliberate deception. He relied on SC Sardelich saying he would not have given him the rating he did had he been aware of these matters, but did not enquire further of him what rating he would have given. 361 Further, Supt Redfern, in saying that he wasn't confident that Mr Eaton had achieved the standard as described in earlier Duty Books, did not investigate their veracity in any way. As the investigator, Supt Redfern could have spoken to all of the people involved with the earlier Duty Books and didn't, he simply presumed the negative. At its worst he attributed those earlier results to Mr Eaton being dishonest. That infected, and affected adversely, his conclusions in the overall investigation. 362 Other factors that the Commission ought take into account in that consideration were: · his demonstrated capacity as a probationary police officer as reflected in the Duty Books and in the evidence, · his demonstrated capacity as a police officer whilst on restricted duties (noting that the "misconduct" that justified terminating his employment was not deemed serious enough to warrant his suspension from duties, or even to remove him from dealing with the public or with using the COPS system), · the support from his peers and senior officers for Mr Eaton to return to work and, · his remorse and the unchallenged evidence that he has learnt much from this experience. Penalty 363 It was submitted that the evidence of relevant witnesses, with the exception of Supt Redfern, suggested that the imposition of the penalty of dismissal was well beyond the expected outcome from their perspective: · Sgt Fitzgerald did not expect the issues on both 13 and 14 April to escalate to dismissal. · Sgt Dunn would not of her own volition have failed Mr Eaton's Duty Book as a consequence of his work load. · SC Sardelich's view was that the issue should not prevent Mr Eaton from continuing his police studies and fully and actively supported his return to work. 364 It was therefore submitted that based on the respondent's own witnesses the Commission would be satisfied that the imposition of the penalty of dismissal was harsh, and that an alternative and lesser penalty that permitted Mr Eaton to continue and complete his probationary police period more appropriately reflected the seriousness of his errors. 365 In that regard it was submitted that it would be consistent with unfair dismissal authority for a second chance to be given to Mr Eaton to demonstrate his ability and fulfil his dream of becoming a police officer. 366 It was Ms Lowson's primary submission was that an application of the principles enunciated by Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch would lead to the conclusion that the removal of Mr Eaton was too severe a penalty in all the circumstances. On the issue of harshness of penalty reliance was also placed on Commissioner of Police v Evans. 367 It was also submitted that Mr Eaton had the potential to make a significant contribution to policing in New South Wales with Police v Donlan and Commissioner of Police v Hanson,(unreported, amended 30 October 1995, NSW Court of Appeal) cited. Whilst he would return to the Force as a Probationary Constable, it could be easily inferred from his work performance and application to duty from May 2008 until his termination in July 2009, that he will successfully complete the training stage of his police career. 368 Ms Lowson also stressed the importance of the character evidence adduced in support of Mr Eaton citing McCabe v. NSW Police Service [1996] NSWIRComm 105. An approach more recently endorsed in Police Association v. NSW Police (No. 3) (2005) 144 IR 150 [2005] NSWIRComm 243. Similarly in Stuart Boyd Formston v New South Wales Police [2006] NSWIRComm 88. Reliance was also placed on Police Association of New South Wales on behalf of Adam Tregonning v New South Wales Police Service [2000] NSWIRComm 14 where Sams DP considered a number of factors that were comparable to Mr Eaton's case. 369 Ms Lowson submitted that in summary the evidence disclosed as follows: 1. Mr Eaton performed in many respects above expectations for a PC, and showed considerable promise for a successful career as a police officer; 2. In retrospect, and by his own admission before the Commission, he was having difficulties juggling personal and work commitments at a time when, as a PC, he needed to put in extra time to complete successfully all aspects of his workload; 3. Because of this difficulty, he failed the academic component in Session 4; 4. In focussing on passing the academic component in his repeat of Session 4, he did not manage his workload effectively; 5. Although the problem was identified in the Duty Book, Weeks 1 – 6, none of the his supervisors actively monitored his workload from 9 March to 13 April 2008, with the consequence that he had 14 outstanding Events and five Cases as at 13 April 2008; 6. Mr Eaton had two computer profiles but did not have a full understanding of how they operated. In this context he inadvertently misled A/Sgt Sardelich and Sgt Fitzgerald as to the extent of his workload; 7. Other than Supt Redfern, no officer giving evidence believed that his defaults warranted termination; 8. Supt Redfern showed inexplicable bias against Mr Eaton, and his evidence and recommendations should be seen, and devalued, in that context; 9. Mr Eaton continued to perform above satisfactory work whilst performing restricted duties, notwithstanding the stress of being under a disciplinary investigation throughout that time; 10. Despite the possibility of termination, he attended his duties without complaint and with a full commitment to his work; 11. Mr Eaton was not suspended from duties; 12. Mr Eaton was supported in his return to work by senior colleagues; 13. The respondent had not adduced any evidence from the decision maker; 14. Mr Eaton had accepted his wrongdoing and demonstrated that he had learnt from it and moved on; 15. Mr Eaton was relatively young with limited work experience when he entered the police force; the incident, and the opportunity it presented to him to change, have made him a much more mature person who has identified his difficulties in juggling work and personal commitments and was ready to perform his duties having learned from the whole experience. Waiver and Condonation 370 Ms Lowson further submitted that Supt Redfern was well aware of the matters the subject of the disciplinary process against Mr Eaton, yet did not seek to suspend him from duty, instead only placing him on restricted duties. This was inconsistent with a view that his conduct so affected his capacity to be a police officer that it warranted his dismissal. Supt Redfern gave no evidence to indicate the apparent inconsistency between his strongly held view that Mr Eaton had engaged in deliberately misleading behaviour that reflected adversely on his integrity and capacity to be a police officer, yet at the same time he allowed him to continue to perform responsible, albeit restricted, duties apparently without putting in place any extra supervision or other mechanisms to protect against these alleged deficiencies. Further, even after positive findings had been made in February 2009 when Assistant Commissioner Corboy issued the Notice foreshadowing dismissal, Mr Eaton's status did not change and he continued to perform restricted duties involving contact with the public and extensive record keeping duties. 371 Ms Lowson submitted that in this regard the respondent acted inconsistently with an intention to terminate Mr Eaton's services, and that it was prima facie unfair for the respondent to now seek to rely on these matters to support their dismissal of Mr Eaton. 372 In conclusion Ms Lowson sought the following orders: 1. That Mr Eaton be reinstated to his position as a Probationary Constable at Parramatta Local Area Command within 7 days of this order, 2. That Mr Eaton have continuity of service with the Police Force. 373 It was also recognised that the Commission had discretion to order re-employment to another location if deemed appropriate. 374 In relation to back pay, Ms Lowson submitted that Mr Eaton accepted that it was appropriate that some penalty be imposed upon him in recognition of his acknowledged problems with workload, his failure to seek assistance in this regard and his failure to ensure that SC Sardelich and Sgt Fitzgerald were apprised of all of his outstanding workload with Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy [2009] NSWIRComm 126 being cited in this regard. It was also accepted it was in the Commission's discretion to order no back pay as a penalty in substitution for dismissal but in so doing noted however that, through no fault of his own the proceedings had been somewhat protracted, and it was now nearly eight months since his dismissal. In those circumstances it was open to the Commission to order full or partial withholding of back pay, as the Commission deemed appropriate. Submissions on Behalf of the Respondent 375 Mr Ginters also made extensive oral submissions supplementing the written submissions filed (Exhibit 17) and in so doing also took the Commission in some detail through the transcript, and in particular the cross-examination of Mr Eaton, together with the relevant evidence upon which the respondent relied and that evidence which rebutted the applicant's case. Mr Ginters also took the Commission in some detail through the cases cited in the course of those submissions. 376 Mr Ginters also made further oral submissions in support of the written submissions filed on the jurisdictional issues raised by the respondent (dealt with at the outset of this decision). 377 It was submitted that at the heart of this matter was whether it was harsh for the respondent to dismiss the Mr Eaton in circumstances where, on his own admission, he committed (at the very least) a "significant error of judgment" when on 13 April 2008 he misled A/Sgt Sardelich as to the status of his "workoff" and when on the very next day he misled Sgt Fitzgerald about the same matter. 378 It was further submitted that the respondent acknowledged that the statute barred MVA, the issues identified under the heading "Inability to Manage Workload" and the exclusion from the ADPP course as referred to in the s.80(3) Notice were, in and of themselves, unlikely to lead the Commission to the view that Mr Eaton's dismissal was warranted. However those matters were to be viewed in the context of the events of 13 and 14 April 2008. When so viewed those matters supported the conclusion that Mr Eaton's dismissal was justified because the totality of the circumstances of the employment relationship was relevant to the question of dismissal. That would also include evidence that he had performed well and was rated well in his Duty Books but issues such as his inability to manage his workload were all the matters that the Commission would need to, and should, take into account. Integrity 379 It was submitted that Mr Eaton's conduct went directly to the question of his integrity. The Police Act 1990 s.7(a) contained a statement of values of members of the Police Force which places integrity "above all". Maintaining the highest standards of integrity amongst police officers was fundamental, given that it was a supreme requirement in a police officer. There was, accordingly, a particular necessity for officers to deal with each other honestly and truthfully. Reliance was placed on Alexander v Commissioner of Police [2009] NSWIRComm 3 in this regard. 380 It was submitted that the need to maintain a high standard of integrity was a powerful consideration in favour of dismissal where a Probationary Constable failed to meet that standard. The respondent was entitled to expect that a Probationary Constable, being a person who is "on trial" as to his/her suitability, would observe the Police Code of Conduct and Ethics and the values of the Police Force. Alexander v Commissioner of Police [2009] NSWIRComm 3 was again cited in support of this submission. The incidents on 13 and 14 April 2008 381 Mr Ginters outlined the events of the 13 and 14 April 2008. 382 He submitted that on 13 April Mr Eaton, despite his knowledge of the existence of his PLAC profile, did not draw to A/Sgt Sardelich's attention the fact that he had 14 outstanding Events on his PLAC profile, when A/Sgt Sardelich asked to see his workoff. Similarly on 14 April, Mr Eaton did not disclose the existence of his PLAC profile and the fact that it contained outstanding Events when requested by Sgt Fitzgerald to produce a record of his workoff. Again Mr Eaton showed his CCU profile. 383 At the time Mr Eaton showed A/Sgt Sardelich and Sgt Fitzgerald records from his CCU profile he was aware that he had two profiles and that he had outstanding Events on his PLAC profile. The consequence of Mr Eaton's non-disclosures to A/Sgt Sardelich and Sgt Fitzgerald was that they were misled as to the true status of his workoff. 384 It was submitted that, notwithstanding that the supervisors had the capacity in and of themselves to go in and check a PC's workoff or check computer records, Mr Eaton accepted and embraced without equivocation that it was his responsibility, in circumstances where he was having the Field Supervisor section of the Duty Books signed off, to provide a full and complete understanding of what his work was. He did not do that on either the 13 or 14 April. It was submitted that these were matters of fundamental importance. Mr Eaton's misleading conduct 385 It was submitted that the respondent's position was that Mr Eaton consciously misled A/Sgt Sardelich and Sgt Fitzgerald. The Commission was taken in detail to the relevant cross-examination of Mr Eaton. 386 The evidence of Mr Eaton in relation to his army training and experience confirmed that he was a person who understood the importance of obeying orders from superiors and of seeking clarification of those orders if there were doubts in his mind. Against this backdrop it could not be suggested otherwise that when he was asked to show his workoff on 13 and 14 April there could have been any doubt in his mind as to what was being asked of him. He also knew at that time that he had two profiles. 387 It was also submitted that but for the steps undertaken on April 14 after Sgt Fitzgerald was shown Mr Eaton's CCU profile there was nothing to indicate that he was intending to bring to the attention of either SC Sardelich or Sgt Fitzgerald the existence of the outstanding work on his PLAC profile 388 In this respect when considering the evidence, the Commission would find the Mr Eaton's response at Q 31 of his Record of Interview to be telling. 389 It was submitted that whilst Mr Eaton now asserted that the answer at Q 31 of his Record of Interview was incorrect, this amounted to little more than an ex post facto attempt to reconstruct events so as to portray his position in a more favourable light. Mr Eaton's assertions should be weighed against the evidence of the training he received in conducting records of interview. 390 Further if he did not appreciate the importance of meticulously reading through those questions and answers after the interview, once he was served with the Notice which squarely raised this issue, he still didn't do anything about it. Despite Mr Eaton's evidence that he told his Solicitor about the circumstances of the record of interview and the seriousness of the situation, he decided not to reveal the existence of the purportedly incorrect answer in response to the Notice. He made an active decision not to pursue the matter because he said he didn't want to seem critical or disrespectful of A/Inspector Dowling. He accepted that he sat on his hands for some 19 months. 391 It was submitted that the Commission would conclude that the answer given by Mr Eaton at Q 31 of his Record of Interview reflected that which he expressed to A/Inspector Dowling. It was evidence which demonstrated a consciousness of the existence of his outstanding workload and, in that light, a conscious decision to withhold from A/Sgt Sardelich and Sgt Fitzgerald information that was vital to their assessment of his progress as a probationary constable. Integrity and Probationary Employment 392 It was submitted that the probationary period was a period of time used by the respondent to assess probationary constables' suitability to become police officers. 393 It was further submitted that when Mr Eaton was confronted with a situation of potential embarrassment on 13 and 14 April 2008, vis a vis his competency, he was found demonstrably wanting. A PC with the level of integrity expected of officers of the NSW Police Force would, at that point in time, have "put up their hand" and squarely drawn attention to the existence of the PLAC profile, the fact that it contained numerous outstanding Events and the fact that he/she was struggling with their workload. 394 It was also submitted that in assessing Mr Eaton's conduct and whether it warranted his dismissal, particular regard would also be had his own assessment of his conduct. Again the Commission was taken in some detail to Mr Eaton's evidence in cross-examination and the general issues he conceded. The Statute Barred MVA – E 30469973/C 31087567 395 Mr Eaton admitted that despite his efforts to see Sgt Dunn that he "probably did not realise that it was still very important for me to follow the direction to follow up the issue with Sgt Dunn" and that he "should have made seeing Sgt Dunn a priority over and above my other duties." Inability to Manage Workload 396 Mr Ginters then took the Commission to the second MVA that was about to become statute barred in May 2008 (C 32727528) and the 3 outstanding Events specifically referred to in the s.80(3) Notice (E 31819756, E 31510646 and E 34828580.) 397 It was submitted that in relation to both the MVA and the first Event Mr Eaton received a number of prompts regarding these two matters. Mr Eaton conceded that his documenting of the actions he undertook on the Case matter was lacking. 398 The second Event concerned a shop theft that was reported on 7 November 2007. Despite this fact COPS records indicated that the Event was not created until 13 March 2008, a period of approximately 4 months after it was reported. Mr Eaton received a number of prompts regarding this matter but by 14 April 2008, he had not complied with those prompts. 399 Mr Eaton had conceded that his documenting of the actions he undertook on this matter was lacking and that he ought to have updated his COPS report earlier. 400 The third Event concerned an assault that occurred on 15 February 2008. Mr Eaton received CCTV footage relating to the incident on 21 February 2008 with COPS records revealing that he had taken no steps to progress the matter after 21 February 2008. Exclusion from the Associate Degree in Policing Practice 401 It was submitted that as a consequence of Mr Eaton's repeated failure to satisfactorily complete important parts of the ADPP he was excluded from further studies for a period of 2 years from Trimester 2, 2008. It was accepted that should the Commission order reinstatement or re-employment, then pursuant to s.89(8) the Commission could also make any such order subject to a condition that Mr Eaton be admitted to, and complete, the ADPP. Procedural Fairness 402 Mr Ginters made further oral submissions in relation to procedural fairness in addition to those matters referred to in the written submissions on the jurisdictional issues (already dealt with) and in so doing responded to the four elements relied on in relation to the contention that Mr Eaton had been denied procedural fairness as follows: 1. Whilst the investigation may have taken some time to complete it worked in Mr Eaton's favour as he was able to remain in remunerative employment, albeit on restrictive duties, and continued to be able to perform services and demonstrate his ability to do so. A matter that was put against the respondent as to the merits. 2. Supt Redfern acknowledged the delay was regrettable and unfortunate but that delay in and of itself was not a matter which demonstrated an absence of procedural fairness. 3. The matters that were relied on in the proposed Notice were set out extensively in that Notice and Mr Eaton had the opportunity of responding (citing Busways v. Johnson (1994) 55 IR 255). Procedural fairness did not go so far as to require the opportunity to meet personally with Asst Commissioner Corboy or with Supt Redfern (citing Bigg v New South Wales Police Service (1998) 80 IR 434). 4. It was clear in the dismissal letter that the decision maker Asst Commissioner Corboy had had regard to the materials including the Response provided by Mr Eaton. In relation to the absence of the March deception issue which was foreshadowed in the Notice, the only conclusion that could be reached was that it was not relied upon. That did not give rise to a procedural fairness complaint. 5. The fact that Mr Eaton was directed to participate in the record of interview arose as a consequence of the obligations enshrined in the Police Regulations and that was the basis upon which the record of interview was conducted. Given that there was a statutory or a regulatory obligation on Mr Eaton to participate in a record of interview it could not now be said that he was denied procedural fairness because of that requirement. He did not seek a support person, he was given the opportunity to read the record of interview and satisfy himself as to its accuracy for signing off on it. The record of interview was not in relation to criminal allegations, so the notion that he could not avail himself of a privilege against self incrimination was not to the point and was not an issue. 6. There was no Jones v Dunkel inference that could be drawn because A/Inspector Dowling was not called, as Mr Eaton accepted that he told him he was struggling with his workload and did not want to let his colleagues down or appear to be incompetent. 7. Whilst Mr Eaton now sought, some 19 months later, to disavow the answer he gave at question 31 he never said that answer was wrong what he says is that he would now like to expand upon that answer or give a different answer. 403 Mr Ginters generally rejected the submissions made by Ms Lowson in relation to the perceived bias held by Supt Redfern against Mr Eaton. It was Supt Redfern who had to make the ultimate call and it was submitted that it was not unusual to have different views than those of A/Inspector Dowling and Detective Inspector Egan-Lee that about such matters. 404 In relation to Sgt Fitzgerald, Mr Ginters submitted that his views as to the suitability of Mr Eaton to be a police officer were influenced by his belief that Mr Eaton had misled him. It was a very live matter and a matter which would be of particular significance. 405 In reply to the submission made by Ms Lowson on waiver and condonation on the basis that Mr Eaton was placed on restricted duties pending the outcome of the investigation, it was submitted that to do otherwise while that investigation was ongoing would have led to the perception that there was a pre-judgement of the matter. It could not be said against the respondent that an adverse conclusion should be drawn because he was placed on restricted duties. Remedy 406 In conclusion Mr Ginters submitted that Mr Eaton's dismissal was neither harsh, unreasonable or unjust. Should the Commission find that his dismissal was harsh, the Commission would, nevertheless, conclude that the proper exercise of its discretion would not be to require it to order the reinstatement or re-employment of Mr Eaton. 407 In relation to harshness it was acknowledged that Byrne & Frew v Australian Airlines (1995) 185 CLR 410 was the usual reference cited in this regard. However any dismissal of employee, except in the most extreme circumstances, was likely to be able to be perceived as being harsh to their personal and economic situation. This was encapsulated in the decision of Staunton J in Formston v New South Wales Police [2006] NSWIRComm88. 408 Further it was submitted that it would be too simplistic to approach this matter on the basis that Mr Eaton had shown a long-term desire to be a police officer, had taken steps to embark on that process, had been removed and at that removal had had economic and personal consequences for him and potentially removed that capacity for him to ever be a police officer. Whilst those factors in and of themselves may, in an appropriate case, demonstrate harshness, one needed to balance that harshness against the respondent's primary submission that there was an integrity issue that cut right across that. It was submitted that if the Commission found in favour of the integrity issue the mere fact that the termination had some harsh consequences was not to the point. 409 It was submitted that it could not be overlooked that Mr Eaton was a Probationary Constable. He was obliged to demonstrate his fitness for office. The events of 13 and 14 April 2008 and his conduct in "sitting on his hands" following the Record of Interview on 17 April 2008 revealed that he had failed to demonstrate the necessary qualities of integrity. Reliance in this regard was placed on Owens v NSW Police Service (1998) 87 IR 1. 410 However in the event that the Commission was against the respondent on the question of reinstatement or re-employment the Commission would, in the exercise of its discretion, decline to award any remuneration lost. 411 On this issue it was submitted that given the degree to which Mr Eaton's conduct could be attributed to the reasons for his dismissal, no order for lost remuneration was called for, with Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy [2009] NSWIRComm 126 cited. In relation to that conduct, it was particularly the fact that on Mr Eaton's view he accepted that he did mislead SC Sardelich and Sgt Fitzgerald, though not consciously (which was disputed by the respondent). Also there was his failure, for a period of 19 months, to raise the issue of the answer to question 31. Submissions on Behalf of the Applicant in Reply 412 Ms Lowson in reply, rebutted the contention by Mr Ginters that Mr Eaton would not have told either SC Sardelich or Sgt Fitzgerald about the 14 Events. It was submitted that the cross-examination was not taken that far. It was not put to Mr Eaton that he would not have told SC Sardelich about the 14 Events but for Sgt Fitzgerald finding out. Whilst it was put in relation to Sgt Fitzgerald he would not have told him about the 14 Events but for Const Dzendolet finding out and telling Sgt Fitzgerald about them, Mr Eaton's version was that he knowingly involved Const Dzendolet in making Sgt Fitzgerald aware of the events for the purpose of SC Dzendolet asking Sgt Fitzgerald for permission to help him work through the Events. 413 It was further submitted on Sgt Fitzgerald's account of how he came to be aware of the Events, (that is, looking through the window and seeing 14 Events on the computer screen in front of Mr Eaton), if Mr Eaton was deliberately withholding those events from Sgt Fitzgerald, why was he looking at them on the computer screen within view of Sgt Fitzgerald? That was inconsistent with the theory being put forward by the Commissioner of Police to suggest that there was a deliberate withholding, because in fact he looked at them in circumstances where Sgt Fitzgerald could easily see them. 414 It was further submitted that it could not be concluded that Mr Eaton would not have drawn it to SC Sardelich's attention in due course. Mr Eaton's rapid apology in respect of the matter should be accepted as reflective of the respect in which he held SC Sardelich generally. 415 Ms Lowson also submitted that there was no evidence adduced from either Mr Eaton or from the COPS program itself as to when Mr Eaton had previously or next looked at the Events after speaking to either SC Sardelich or Sgt Fitzgerald. The evidence was he saw them at around 10am on the same day of 14 April, but there was no evidence as to whether he had seen the events between giving the workoff printout to SC Sardelich and sitting down with Sgt Fitzgerald a few hours later. The respondent had not adduced evidence in respect of those matters. 416 It was submitted that the only evidence, as attached to Sgt Fitzgerald's statement, reflected SC Suters making comments. They post dated 14 April and the respondent disavowed any reliance on that post-dated material. SC Suters, consistent with Sgt Fitzgerald's evidence, was notable by her absence of comments in the events. 417 It was further submitted that whilst Mr Ginters had taken the Commission in detail to the cross-examination of Mr Eaton and the many occasions on which he was asked whether various issues reflected on his fitness and appropriateness to be a police officer, the problem with all of those questions was that they were left in that vague state. It was not put to Mr Eaton, "do you accept that this means you shouldn't be a police officer". This was not put it at that height, the purpose being that it was sought to leave the proposition high and wide to say even Mr Eaton accepts there was a problem. 418 Ms Lowson then took the Commission to the re-examination of Mr Eaton on this issue and Mr Eaton's response that it reflected that he had made mistakes, believed he had learned from those mistakes and hopefully at the end of the day believed that would make him a better police officer. His answers to all those questions could be seen appropriately in that light. Further it was submitted that he would not have bothered investing the time, effort and money in these proceedings if he wasn't wholly committed to being a police officer. 419 It was also submitted that similarly, whilst Sgt Prasad and Sgt Bourke agreed they valued integrity when they made their statements, as no doubt SC Sardelich valued it when he wrote out his reference, but taking all of that into account, they still chose to come and support Mr Eaton in his application for reinstatement. 420 Ms Lowson submitted that there was an issue that was not quite understood in relation to the answer to question 31 in the Record of Interview. Mr Eaton said that the questions and answers were not recorded verbatim. So when he said this would be the proper answer to question 31, he was not thereby saying that question 31 was ever asked in the way that it was described, that was not accepted by Mr Eaton. There was not a verbatim account of either the questions or the answers. 421 In response to questions from the Commission as to how the issue of any back-pay might be determined arising from the submissions on behalf of Mr Eaton, Ms Lowson referred to the orders set out in the written submissions and indicated that it had previously been put on record that those orders were conditional on readmission to the ADPP. Reference was then made to the approach taken in Alexander in relation to back-pay. Consideration 422 The jurisdictional issues raised in this matter have been dealt with at the commencement of this decision and will not be further referred to. 423 I have very carefully considered the evidence, the transcript and the submissions of the parties, and the cases they cited, in this matter. That consideration has also involved a very thorough examination of Mr Eaton's Duty Books for all Sessions undertaken. 424 At the outset I indicate that I have come to the inescapable conclusion, for the reasons set out below, that the dismissal of Mr Eaton was harsh, it was unjust, and it was unreasonable and I propose to issue orders for his reinstatement. 425 I should also say at the outset that I fully acknowledge the excellent and highly commendable work that police officers, including those called to give evidence in this matter, performed in the service of the public often under extremely difficult, stressful and dangerous circumstances. The heavy workload, especially of those officers who have responsibility for also supervising and mentoring junior officers such as Probationary Constables in addition to their own not inconsiderable workload, is also acknowledged and they can only be commended for such in the highest possible terms. The Statute Barred MVA 426 In my view this was an MVA that in the first place, quite possibly, should never have been allocated to Mr Eaton as a Probationary Constable in only his second month of service. 427 It was an MVA concerning a very minor collision that had in fact occurred on the 30 March 2007 but was not reported by the driver affected until 7 weeks later, on the 15 May 2007. This meant that there were only essentially four months to go before it became statute barred. Mr Eaton was allocated this case on 22 June 2007 (by Sgt Dowling who was not called to give evidence) which meant that there were now only three months to go until it became statute barred. 428 The significance of Mr Eaton's brief service when allocated this MVA, as well as the particular nature of the MVA was picked up by A/Inspector Dowling in his investigation, see below. 429 It seems to me that, notwithstanding the utility of allocating minor MVA's to Probationary Constables as an ideal training tool during their early probationary period (with obviously more difficult MVAs being allocated further along their in probationary period), it was somewhat inappropriate to allocate this particular MVA to Mr Eaton so early in his policing career, given the implications of just when this MVA was due to become statute barred. 430 The implications in Mr Eaton's case were of the most serious and dire kind and again in my view quite out of all proportion given the overall circumstances of this MVA. 431 It is perhaps not surprising that on the 8 November 2007, SC Sutors also did not also appreciate just when this MVA was due to bocame statute barred, when she queried what Mr Eaton was doing about this matter as a statue of limitations ran out "in the very near future". Obviously she had not realised that it had, in fact, already become statute barred on 30 September 2007. Clearly she was operating on the basis of it being an MVA that commenced as from 15 May 2007. If that had been the case then, yes, it would have become statute barred in mid November 2007. 432 However this Senior Constable was not the only one to not pick up on this error of dates. Mr Eaton completed weeks 7 to 12 of Session 3 one-month prior to this MVA becoming statute barred. Neither his FTO, Const Vojnikovic, nor his Field Supervisor, Sgt Whatson, picked up that it was about to become statute barred. His Work Log Screen showed that he only had two Cases at the time. One would have thought that if either officer had properly checked his workoff it would have been apparent that this MVA was about to become statute barred. 433 The same comments can be made about weeks 1 to 6 of his first attempt at Session 4. During this time the MVA actually became statute barred. His FTO was Const Dinsdale and his Field Supervisor was Sgt Bourke who indicated in evidence that he did not realise the MVA had become statute barred on 30 September 2007. 434 Again the same comments can be made in relation to weeks 7 to 12 of Session 4. The FTO was Const. Dzendolet and the Field Supervisor was Sgt Hedges who indicated that his work was reviewed on 26 November 2007 -- "Nil issues". 435 It must not be overlooked that at this stage he only had the one profile, his PLAC profile. All three Field Supervisors to date had indicated that the workoff had been checked and indeed, had either ticked off, or made a notation in relation to the requisite Notebook Inspection. 436 SC Sutors also became personally involved on 8 September 2007 when she exhorted Mr Eaton to ..."chase the job you sent to Liverpool". This was followed up by her later comment in November as referred to above. 437 The point I seek to emphasise here is that seven experienced police officers involved in the supervision of Mr Eaton failed to pick up that this MVA was either about to, or had gone statute barred, and give him appropriate assistance or warn him of that fact and give him a "hurry up" in some way in time for him to take appropriate action, if in fact any such action was possible, to finalise this MVA before it became statute barred. 438 There can be no criticism of the level of supervision that he was receiving at this time (that is in 2007), as can be readily seen from a careful examination of the Duty Books involved. This will be dealt with more fully below. 439 The same cannot be said however for his second attempt at Session 4. Again, more will be said about this below. 440 When it came to Sgt Hedges' notice on the 9 March 2008, after going into his workoff at the request of SC Latham, that this MVA had now become statute barred, even she apparently did not appreciate at that time that it had in fact been statute barred since 30 September 2007. 441 Indeed the same could clearly be said of Supt Redfern when he reviewed Mr Eaton's Response to the Notice and said that "he received further comment from the then traffic officer Senior Constable Sutors three months later reminding him of the statue of limitations and to seek assistance from senior officers." As clearly indicated above that further comment was made five weeks after the MVA had become statute barred. If SC Sutors and other supervisors had not picked up on this, how was it fair and reasonable for it to expected that an inexperienced PC such as Mr Eaton was supposed to pick this up. 442 It also came to Inspector Jobling's attention when he was doing a review of old cases and he noted in Mr Eaton's COPs on 30 March 2008, the necessity to do a SOARs report on this MVA. Mr Eaton duly prepared such report and provided it directly to Inspector Jobling. There was no evidence to contradict this occurring. Inspector Jobling sent an email to Sgt Dunn querying whether Mr Eaton had been to see her about the MVA as requested by Sgt Hedges. Though, having completed a SOARs report, what became the point of seeing her when it had been statute barred for some 6 months by that stage is beyond me. It is not clear on the evidence what action would then have ensued. I accept that going over what steps/actions Mr Eaton could/should have taken as a remedial training exercise would obviously have been of benefit and appropriate in the circumstances, rather than the disciplinary consequences that ensued instead. 443 Mr Eaton maintained that he did attempt to see EDO Hedges but was unable to catch her while she was at the Station. In relation to the subsequent e-mail he received from Sgt Dunn about the MVA (10 April) he indicated he went to see her as soon as he went into this particular Case and saw the e-mail. However it is unclear from the evidence just when Mr Eaton saw the e-mail from Sgt Dunn. It was his evidence, which was not contradicted, that such e-mails would appear on the individual case narrative and would only appear when you went into that particular screen. In any event, as his roster shows, he was not rostered on the 10, 11, or 12 April and not rostered until the 13 April when the events involving A/Sgt Sardelich and then Sgt Fitzgerald (14 April) occurred. Going to see Sgt Dunn became subsumed by those subsequent events. 444 There was also the evidence that Parramatta was a particularly large and busy Command with 5 to 6 MVAs per day being reported as well as the clear evidence of a majority of the officers called to give evidence (with the exception of Supt Redfern) that it was not unusual for PCs to have MVAs go statute barred. Indeed, on the evidence of Sgt Fitzgerald, it was not unusual for MVAs to go statute barred with Constables as well. 445 Sgt Fizgerald's detailed listing of the 14 MVAs at Parramatta that had gone statute barred in the previous four years (between 2004 to 2008) and the "pages and pages" of those about to become statute barred, on his evidence, was discussed and provided to Supt Redfern and SC Suters and according to Sgt Fitzgerald changes were put in place to ensure this didn't happen in the future. Changes that were obviously too late for poor Mr Eaton. Further the significance of this information seems to have been given no weight or relevance whatsoever in relation to any consideration of Mr Eaton's circumstances. There is also no indication or evidence as to whether any action was taken in relation to any officer involved in the 14 statute barred MVAs identified by Sgt Fitzgerald. 446 The first person to identify just how old this MVA was appears to have Sgt Fitzgerald in the course of his detailed supervisory check of Mr Eaton in the six-week workload check (apart from Inspector Jobling). That kind of supervisory check, if it had been done before this time, would have not only addressed the problem of the MVA, but quite possibly Mr Eaton's general workload management issues as well. 447 There is no doubt that had any supervising officer whatsoever at some earlier point in time taken the time to properly check Mr Eaton's Cases then they too would have identified that this MVA was either about to, or had, become statute barred. 448 The fact that all these officers did not pick up on this and even those that did apparently made the same error that SC Sutors made in incorrectly identifying when the MVA became statute barred, highlights in my view the absolute unfairness and injustice in having this matter taken into account at all by the decision makers in considering the dismissal of Mr Eaton. 449 I fully acknowledge that there were certainly additional clearly identifiable steps that should have been taken by Mr Eaton, including recording every attempt he made to contact the person of interest even if that contact was unsuccessful, however those shortcomings were not so serious as to warrant the subsequent attention this MVA received in the light of its particular circumstances. 450 I also note his subsequent dealing with another MVA where his work was praised by Sgt Hedges. 451 It is also not insignificant to take into account that this MVA involved, by any assessment, an extremely minor traffic collision, the major feature of which was that the person at fault was apparently an unlicensed driver. It was only reported due to insurance considerations. Whether it would have proceeded to a formal charge as Ms Lowson points out is perhaps debatable. 452 Supt Redfern would undoubtedly say that this was not to the point and that it was the work effort of Mr Eaton that was being scrutinised and found wanting. Unfortunately that was done against the background of the work effort of a number of supervisory officers also being somewhat wanting and apparently scrutinised in some informal way but nothing detrimental arising as a consequence for them. 453 The contrast between the treatment and the apparent view of the supervisors and that of Mr Eaton is so stark as to be of concern. 454 Sgt Dowling, in his capacity of A/Inspector charged by the CMT with investigating this MVA (and the deception issue) found this Issue sustained, as of course was inevitable given the factual situation. Nevertheless there does not appear to be any specific action recommended apart from his general comment about his belief that the issues (including the two not sustained) could be addressed through "additional training and performance management programs", and felt the matter should be referred to the CMT for assessment. 455 Indeed it is of further significance in my view that he relevantly noted in his Report: It should be noted that the driver Probationary Constable EATON was attempting to contact was an unlicensed driver, checks on NSW RTA confirmed this. ( TAB I ) It is my submission that the driver was intentionally avoiding contact with Probationary Constable EATON and at the time due to Probationary Constable EATON's length of service he would have not known what lines of enquiries he would have to make to confirm this (emphasis added). One of the main issues relating to this matter is. The lack of initiative displayed by Probationary Constable EATON when addressing his workload and not asking for assistance or guidance while undertaking his work. 456 I also find of even greater significance the fact that Detective Inspector Egan-Lee, in agreeing with the findings of A/Inspector Dowling, went on to further relevantly comment: The secondary concern to come from this, is if substantiated, the actions of some FTO's and others in supervisory ranks within the Command may have been negligent in their undertakings as trainers and mentors of junior police (emphasis added). 457 There was reference in Supt Redfern's evidence to some subsequent informal enquiry but nothing specific seems to have eventuated and the blame and adverse consequence still seems to have fallen wholly and squarely on Mr Eaton. 458 I consider that the inclusion of this MVA as one of the reasons for the dismissal of Mr Eaton was unwarranted in the circumstances and to do so was therefore harsh, unjust and unreasonable. Duty Book/ Workload Management Issues 459 It is clear from the evidence of Supt Redfern that he formed a very adverse and unfavourable view of Mr Eaton's work performance and his ability to manage his workload, based on the Duty Book for weeks 7 to 12 of his second attempt at Session 4 with its inextricable link to the issue of the two profiles Mr Eaton had as at 13/14 April (issues relating to the two profiles will be dealt with further below). That view was also made in the context of Sgt Fitzgerald's Report and email to Sgt Dunn about the events of the 13 and 14 April. (To be dealt with further below). 460 He then applied this same adverse and unfavourable view to the Duty Book for weeks 1 to 6 of Session 4 (second attempt) and indeed, went further, and said that he had no confidence in the Duty Books earlier completed, notwithstanding that, on his evidence, he did not conduct any sort of detailed examination of any of those Duty Books nor indeed did he speak to any of the supervisory police officers involved about Mr Eaton's work performance (including any supervisory officers associated with that most recent Duty Book). 461 The only person he spoke to was the EDO, Sgt Dunn. Whilst it is true that she failed this Duty Book, she also indicated that she discussed other options with Supt Redfern, including passing Mr Eaton on to Session 5, but with a greater degree of supervision (supervision she acknowledged could have been given), but he declined to adopt any of the options she raised. 462 I also note that Detective Inspector Egan - Lee in agreeing with the findings made by A/Inspector Dowling and being satisfied that a "full and complete investigation has taken place", concurred with his findings that whilst "Untruthfulness" could not be established it was more than evident that Mr Eaton had been "misleading", in the information supplied, "whether intentional or not". He was also a similar belief that some "managerial action" should be implemented to provide Mr Eaton with "guidance" in this area and believed that a "Remedial Performance Agreement" should be entered into between Mr Eaton and a supervisor from his team for a period of three months before being permitted to proceed to confirmation as a Constable of Police. 463 For Supt Redfern to raise doubts about the Duty Books completed in 2007 ignores the fact that at that time Mr Eaton only had his PLAC profile so there could be no issue that the range of work he was undertaking was not fully available to his supervisors for their oversight. Nor do I consider that there could have been any issue that he was "actively concealing" his workload. 464 I have very carefully examined and analysed all Mr Eaton's Duty Books in some detail (including all Sections and all Skills). 465 The Duty Books for Session 3 clearly show a Probationary Constable who was working well and progressing, not only well, but at an above average level; achieving at or above benchmarks; receiving positive comments and praise from his supervisors (both FTO's and Field Supervisors), comments which Mr Eaton also acknowledged in a positive and appreciative way. 466 These two Duty Books also show that he was "buddied" for 15 and 16 shifts respectively, where he was supervised by a senior officer (either SC Latham or Const Vojnikovic weeks 1-6, and Const Vijnikovic in weeks 7 - 12, as taken from the Daily Activity Report). Both Books show appropriate and commendable attention to detail on the part of all supervisory officers involved in completing all required sections. His Work Log Screens listed respectively, 1 Case but no Events, and 2 Cases and 1 Event. 467 Mr Eaton duly passed subjects PPP231 and PPP232, both in relation to academic and Duty Book requirements. 468 The two Duty Books for his first attempt at Session 4 again indicate that he was progressing well and above average, performing at or above benchmarks and receiving positive comments and praise. The only comments raising issues about his performance being the two comments by SC Suters in relation to the MVA (as noted above) and a comment by Sgt Dunn about the Duty Book for week 1 to 6 being handed in late, with the risk of failing the subject should his Book be submitted late for week 12. However Sgt Dunn also noted "Good work David a very pleasing report". I should also indicate that it was noted in the Duty Book for weeks 7 to 12 that the FTO (Const Dinsdale) had not ranked his performance in the appropriate column. It was flagged that Mr Eaton had to ensure that this took place. However I would also have thought there was an equal (if not greater) obligation on the FTO to ensure that this ranking was undertaken. 469 I also noted that there appeared to be less direct one-on-one supervision (particularly in weeks 7 to 12) as there were only 7 and 2 shifts respectively noted as having been "buddied". Although there were 31 incidents listed in the Daily Activity Report with Mr Eaton undertaking a "Leading " role in 7, there were some 9 different senior officers listed as participating in the incidents so listed. 470 There was no evidence before the Commission in any way whatsoever about this "buddying" and its relationship/importance to the ongoing training of probationary constables. However there is the possibility that there is a direct correlation between the number of shifts so noted by the particular FTO and the number of incidents listed in the Daily Activity Report in which Mr Eaton either observed, assisted or played a leading role and which involved that particular FTO. However this information does not consistently correlate through all subsequent Duty Books. It is not possible to draw any conclusions about whether or not the quite significant change between Session 3 and Session 4 has any implications in relation to the level of supervision that was being provided. However it is impossible not to note that very significant difference in those numbers as between Session 3 and both Sessions 4. 471 His Work Log Screen (which could only have been the PLAC profile) showed respectively - 7 Events, 3 CIDS messages, 4 Cases and 5 Events, 3 CIDS messages, 8 Cases. 472 Mr Eaton then failed academic subject PPP242. He also failed PPP241, however that was not due to any failure in relation to his Duty Book, which he passed, but rather because he failed to complete his academic assignments. 473 This was the first sign of the very real difficulty he was having in managing his workload in terms of his ability to manage and balance both his academic and practical duties. It is apparent that he was putting more effort into his Duty Book than into the academic side of his studies. His evidence also was that he was having relationship problems at this time 474 He then went on secondment to the CCU from 7 December 2007 to 9 February 2007, a period of two months. Whilst Supt Redfern maintained that supervision of Mr Eaton carried on at the CCU, there is no actual evidence as to the extent of that in any practical way before the Commission, given that his Duty Book for weeks 7 to 12 of Session 4 was signed off by Sgt Dunn on 5 December 2007, before he went to the CCU. 475 The Duty Book for the second attempt at weeks 1 to 6 of Session 4 (commenced on his return to Parramatta) start to show some significant difference when compared to the Duty Books of 2007. Firstly, the Daily Activity Report and Self-assessment pages were not signed off by Mr Eaton and in the past, in relation to a least two Duty Books the relevant FTO had also ticked that area. The failure to sign does not appear to have been commented on by his FTO, SC Latham. Significantly there was no indication of shifts carried out with the FTO in the apprpriate space, merely a handwritten question mark. There is no indication as to whether that notation was inserted by SC Latham or Sgt Dowling, although Sgt Dowling had left that entry blank and put a cross next it in his section of the Field Supervisors Report. There were also fewer incidents noted in the Daily Activity Report (only 11, with Mr Eaton taking a "Leading" role in 5), than had been recorded in earlier Duty Books, none of which involved SC Latham. The Work Log Screen only noted 5 CIDs messages and 5 Cases. Sgt Dowling had commented under the log "greater attention to be given to his caseload". 476 Sgt Dowling also went on to comment that Mr Eaton was " coming along at a steady pace" but then went on to say "however believe greater time should be spent on his events & case management. Something I believe will improve as he develops his time management skills. With greater exposure to the job I feel P/Cs Eaton's (illegible word) will continue to improve". 477 Notwithstanding the issue about Mr Eaton having the two profiles and which profile was shown on 13/14 April, the above comment would certainly seem to suggest that Sgt Dowling had in fact, either seen Mr Eaton's Events, or had some knowledge of Mr Eaton's Events, arising from his supervision of the Duty Book. 478 I also note that in Mr Eaton's Response to the Notice, that on this issue he indicated his belief that Sgt Dowling may have mistakenly entered "5" in the CIDS messages instead of in Events. He wrote that he did not recall receiving one CIDS message whilst on secondment to the CCU let alone the five that would have still been active on 10 March 2008, only a month after completing that secondment, if that notation was correct. On that basis, as well as noting the comment made by Sgt Dowling, he believed that he had provided Sgt Dowling with his PLAC profile as part of the Duty Book assessment. 479 Initially, in the Notice issued to Mr Eaton, there was an allegation of deception raised in relation to 10 March 2008 when Sgt Dowling signed off on the Duty Book. That allegation did not appear in subsequent s 80(3) Order. No information was provided to Mr Eaton about this allegation, as he also noted in his Response. 480 I also note that Sgt Dowling was not called to give evidence in this matter. This will be commented on further below. 481 It was SC Latham who picked up on the fact that, whilst Mr Eaton was working in most areas above the standard at which he should be working, she specifically commented that "he may need some supervision in relation to case and time management" which she also noted had been discussed with EDO Hedges. She also gave evidence that she had spoken to Mr Eaton about his time management, asked him if he had any issues with his workload or had problems and he told her he was not managing his workload, there was too much to do and he didn't know what to do first. She also indicated that he seemed "a little upset" about this and she told him she would speak to EDO Hedges about managing his workload. She then spoke to Sgt Hedges in early March and told her that Mr Eaton was having difficulty managing his work and noted this in completing the FTO report. 482 Significantly it was the evidence of both Sgt Hedges and Sgt Dunn that no follow-up whatsoever was made by either EDO, in relation to this very specific flagging of this issue by SC Latham. The only follow-up that took place specifically related to the MVA that had gone statute barred way back on 30 September 2007. 483 The Duty Book for weeks 7 to 12, (the one signed by A/Sgt Sardelich) showed a significant increase in both the number and type of incidents listed in the Daily Activity Report (22, with Mr Eaton taking a "Leading" role in 16) involving some seven different senior officers. Const Dinsdale was the FTO and noted 7 shifts as being performed with the PC although when one goes to the Daily Activity Report he is only listed on 4 incidents. Again Mr Eaton failed to sign or date the pages in his section of the Duty Book and there is no comment about that or ticking off of that by the FTO. Nevertheless all incidents were rated as satisfactory and again there were positive comments and praise from both the FTO and Field Supervisor in relation to all skills assessed including Skill Units 7 and 8. 484 I also note that in the reference SC Sardelich subsequently provided to CSU in relation to Mr Eaton's appeal, he indicated that he "still fully endorsed" all assessments made and said that whilst "it was not signed at the time due to this issue, every other aspect of his Policing development was progressing well as stated in the Duty Book." 485 This of course was a reference that Supt Redfern had not read (as indicated in his reply to Detective Inspector Nibbs letter). 486 Taking this Duty Book in isolation from the issue of the dual profiles, it is difficult, if not impossible to discern any perceptible difference in the standard and content between this Book and the Duty Books presented and signed off in 2007 and understand the basis upon which Supt Redfern came to the unshakeable view that his work performance was unsatisfactory and he would not make a good police officer and that the Duty Book should be failed. 487 Of course the consequence of failing his Duty Book was even more significant in that this meant a double failure of PPP242 (notwithstanding that it was not the Duty Book that had been the reason for his failure at the first attempt but the academic subjects, and these were successfully passed in this second attempt). Such double failure meant automatic exclusion from the ADPP which was grounds, in and of itself, for dismissal of a Probationary Constable. 488 Supt Redfern maintained that the issue of Mr Eaton's integrity was not taken into account in failing the Duty Book. Sgt Dunn certainly said it was as far as she was concerned. 489 I find it difficult to accept that evidence from Supt Redfern. It seems to me abundantly clear that the whole basis of his consideration of Mr Eaton's workload issues and the Duty Book (even if one leaves aside the specific issue of the deliberate misleading of the two officers) was predicated on the fact was that he had been "actively concealing his workload". I do not see how Supt. Redfern can say that he separated out the issue of integrity from that consideration. "Actively concealing" would also imply a deliberate intention attached to such actions. 490 I also note that even Detective Inspector Nibbs in his 9 July 2009 letter to Supt. Redfern seemed to have formed a similar doubt about this conclusion as follows: I note the reasons advanced in your report dated 16/7/2008 for not accepting the conclusions reached by Sgt. Dowling and Det. Insp. Egan-Lee in relation to adverse factual findings about the issue of un-truthfulness, and that you wrote that their "....reports comprehensively traversed the available evidence and I do not propose to review all the material." It appears that the adverse finding as to the officer's integrity subsequently was relied upon, in part, to justify the award of an "unsatisfactory" grade for ADPP subject PPP241. 491 Supt Redfern had noted in handwriting beside this paragraph .. "NOT THE CASE!" 492 If the integrity issue was removed, that would only leave the issue of the dual profiles and the 14 outstanding Events on Mr Eaton's PLAC profile which did not come to light until 14 April, as being the only basis for raising issues about his workload management and as a consequence failing this Duty Book (notwithstanding that they were all cleared up with the assistance of Const Dzendolet), as well as the statute barred MVA which had been missed by seven supervising officers, as noted above. 493 I do not consider that to be a sufficient basis to fail the Duty Book in the light of the consideration of the Duty Book as a whole and the failure to address his workload issues when they had been directly identified as an issue by SC Latham as specifically mentioned by her in the Duty Book and specifically spoken about with EDO Hedges. On the evidence there was no follow-up action by either EDO Hedges or EDO Dunn. 494 When considering what evidence is available concerning the dual profiles and the 14 Events, the difficulty with the COPS system is that on opening a profile it does not identify anywhere on that page just what profile it is. True it is that in order to get into that profile one has to firstly select a specific profile. However at first glance no supervising officer would know what profile they were being shown unless they specifically asked. It would be natural to assume that it was always a PLAC profile if one was stationed at Parramatta. 495 The further difficulty I have with the whole issue of the 14 outstanding Events on the PLAC profile is that I just don't believe it is possible to establish that Mr Eaton's evidence that he was surprised when he saw the 14 Events as he only thought he had about five or six, was in fact, not the case. 496 I have listed those 14 Events above in the Background and Chronology. The only information I have not listed is the actual Event number. However from the documentation that was attached to Sgt Fitzgerald's witness statement what is shown is the date upon which the Event was originally created and the fact that 12 of the Events required "resubmitting". This means that at some time in the past Mr Eaton had submitted those individual Events but they had been returned to him as requiring more work. Further, 12 of those Events were generated on dates between February and April 2008 (7 in the previous 4 weeks), and thus were Events that had been generated in the period where there were identifiable difficulties with supervision. 497 As the evidence indicated a submitted Event apparently goes into a "pool", is examined by a Sergeant (or Senior Constable) and if that Sergeant is not satisfied, it gets sent back to the Probationary Constable if more work/action is required. 498 What is just not known from the evidence in this matter is either the date/s on which Mr Eaton originally submitted any of those Events or the date/s on which they were returned to him. It was his evidence that he had said "no" to the question asked of him by Sgt Fitzgerald as to whether he submitted or resubmitted Events. 499 What is also not known is when Mr Eaton last worked on his PLAC profile prior to accessing it on the morning of the 14 April 2008. Did he work on the PLAC profile on 13 April at any time? There is just no evidence about this. It was his evidence that on the 13 April 2008 he was working on his Cases and that was the workoff (the CCU profile) that he provided in his haste to get his Duty Book signed by A/Sgt Sardelich and also subsequently to Sgt Fitgerald. He had not been rostered on for the previous three days. Therefore it is certainly not impossible that some of those Events had been returned to him in that period and therefore he was correct in saying that that he was surprised on the 14 April that he had so many. 500 Just as there is no evidence before me to establish just what the position was in relation to those 14 Events, there don't appear to have been any similar enquiries or checking by anyone else during the investigative process, or if there were, that evidence is not before the Commission. 501 There were 5 "Enquire History Log Entry" printouts (printed on 22 December 2009) attached to Sgt Fitzgerald's statement. However, they all related to the fraud Event ((E31510646) which was one of the 3 specific Events relied upon and detailed in the Notice and subsequent Order. 502 Clearly it is possible to obtain the history of an individual Event and when it was both submitted and resubmitted. However, with the exception of the Event just referred to, that information was not in evidence in relation to the other 11 Events that had been listed as "resubmit needed". Therefore it is just not possible to ascertain what the actual position was in relation to those Events. 503 In any event, as the evidence showed, with the assistance of Const Dzendolet the Events were all cleared up fairly quickly within the next few days. A fact that Supt Redfern further held against Mr Eaton on the basis that if he had sought assistance in the first place the Events wouldn't have got to that stage. That is no doubt the case. LSC Sardelich said they could have been cleared up quickly if he had known of them. Mr Eaton certainly should have sought assistance rather than floundering around as he apparently was doing. However I do not consider that Supt Redfern can then conclude as a consequence that Mr Eaton was "actively concealing" his workload. 504 I also note that A/Sgt Sardelich did not ask him if he had any other work and Sgt Fitzgerald, even on the disputed evidence about whether he did in fact ask, did not pursue the issue. 505 On the evidence available from those officers supervising Mr Eaton throughout 2007 and 2008 he was performing and progressing well, not only at the required standard but in many instances above the required standard. 506 In those circumstances I acknowledge that it may not have occurred to those supervisors that Mr Eaton was having any difficulties unless he specifically raised it with them. Although there were clearly at least two occasions when this should have appeared on the radar (the failure of the academic subjects and SC Latham's comments). 507 I also note the evidence of the other serving officers about their knowledge, or lack of knowledge, as to the existence of multiple profiles. Sgt Fitzgerald considered that appropriate action should have been taken by supervisors at CCU to contact supervisors at Parramatta to ensure the CCU profile was closed and outstanding work completed before Mr Eaton returned to Parramatta (there was still an outstanding CCU matter listed). 508 What is of concern is that it was the evidence that the issue of the ability to have dual profiles as a the result of a secondment has not been raised with PCs since and yet I note that according to the roster in evidence, a PC O'Shea was shown as being at CCU on 9 April 2008 and 25 April 2007 (the roster did not extend beyond that week). This is an ongoing issue that should have been addressed by EDOs. 509 Mr Eaton came across to me, both as a consequence of considering very carefully his comments in the Duty Books, his written evidence and his oral evidence in the witness box, as a person who is perhaps, notwithstanding the good opinion of others, a little lacking in self-confidence. A matter that was noted on more than one occasion via specific comment from a supervising officer in a Duty Book. He was also certainly someone who was eager to please and sought and valued the good opinion of others. He also comes across, and it is borne out by the evidence of his peers (and even Supt Redfern) that he is open, friendly, respectful, very likeable, and a decent young man and I do not think this desire to be regarded by others as justifying their good opinion is necessarily a bad thing or a fault of character. It is a very human trait. 510 What it does suggest however, and what is clear from all the evidence, is that Mr Eaton does not assert himself sufficiently to question or challenge matters when he should or when he has doubts or problems (apart from when he was asked about his workload/time management by SC Latham). This was specifically the case in relation to the six-week workload check undertaken by Sgt Fitzgerald for the first time and the issue with the question-and-answer process of the Record of Interview by A/Inspector Dowling. It may also be relevant in the somewhat unfortunate comments that Sgt Fitzgerald made concerning what Const Dzendolet supposedly relayed to him about giving his assistance to Mr Eaton on 14 April. Comments which Mr Eaton maintained he had subsequently checked with Const Dzendolet when it came to his attention as a result of the Notice he received and was advised by him that he had not made those comments. 511 As already noted, Const Dzendolet asked to write a report or called to give evidence yet it is clear that Supt. Redfern took note of these comments of Cont Dzendolet in arriving at his assessment of Mr Eaton. 512 However, Mr Eaton did strike me as the sort of person who may listen passively when he is given instruction or correction rather than query or challenge or argue the point about what is being said. If I am correct in making this assumption, and I appreciate that it is an assumption on my part, then in the future Mr Eaton will certainly need to ensure that he does become far more assertive than he has been in the past if he wishes to succeed in his chosen career. 513 I can also understand Mr Eaton's desire not to appear critical of superior officers given his very junior and probationary status. I do not consider that to be unusual in my experience particularly in hierachically structured workplaces. 514 However, I do note, he has consistently maintained that whilst he did not intentionally seek to mislead either A/Sgt Sardelich or Sgt Fitzgerald, he did acknowledge that he mislead them and accepted that that was an error on his part. 515 Having carefully considered the evidence I can find no basis for any conclusion to be drawn that Mr Eaton was "actively concealing" his workload. 516 Rather the situation was that there was a level of supervision, particularly in the relevant period of early 2008, that was considerably wanting and indeed let Mr Eaton down. It was acknowledged in the evidence that there had been issues with staffing in relation to Sergeants at Parramatta and this is reasonably obvious from the first Duty Book in 2008. 517 I also note that not only did he have Duty Books that he was required to keep and provide to supervisors who had the opportunity of checking his work, part of his training was to go out with the other senior officers either in an observing, assisting or leading role and those senior officers had the opportunity of assessing him and indicating their ranking which was either satisfactory or indeed in some cases above satisfactory in all his Duty Books. 518 Further there is the issue of the Police Notebook that is kept by all serving police officers. On the evidence of Sgt Fitzgerald this Notebook had numbered pages and was used by an officer to record his daily activity so that it was possible to see when an Event/Case was last noted or actioned. 519 In the Field Supervisor Report section of the Duty Book there is a specific section dealing with Notebook inspection as follows: Notebook Inspection The Field Supervisor is to check the Probationer's Police Notebook ensuring daily duties are being recorded, jobs and incidents are being recorded adequately and in a sequential fashion, action columns are being written off with event numbers or appropriate comments, and writing is legible and that the notebook has been presented to and signed by a Field Supervisor on a weekly basis. Comments/Areas of Concern/Appropriate Action (if required): Notebook number:_______ P age:________ __________________________________________ __________________________________________ 520 In the case of Mr Eaton's Duty Books his Notebook number and a relevant page number were noted (with only one exception in relation to a page number), and on two occasions there was an actual comment of a positive nature also written. 521 So clearly Mr Eaton's Police Notebook was presented on each occasion that his Duty Book was also presented. However there is no evidence before the Commission as to whether the weekly requirement for presentation and checking had in fact taken place. I would have thought that it would be possible to cross check what was in the Notebook with what was on a workoff, particularly if there was any suggestion of actively concealing workload or being behind in workload. A probationer's work and progress could also be ascertained by the checking of this Notebook on a weekly basis. 522 I also note that it was possible on the evidence for a supervisor to go into a Probationary Constable's workoff to check on Cases and Events. It was Mr Eaton's evidence (not challenged) that Cases showed up across all profiles and would have shown up on his PLAC profile. 523 It was also Mr Eaton's evidence (unchallenged) that the first time anyone had actually sat down with him and actually gone through his work with him was Sgt Fitzgerald in the course of that six weekly workload check. The usual practice in relation to the checking of the Duty Book was that it would be handed in with a printout of the workoff (which only showed a table listing the number of Cases/Events etc), and the Field Supervisor would not sit down with Mr Eaton and go through either that Duty Book or the printout. 524 In those circumstances it is hard to see how any supervisor could get a proper idea of how a probationer was progressing without also specifically talking to them about their work. There is also little opportunity in that process for the probationer who is having any difficulty to raise those difficulties with a supervisor. 525 I am very concerned that Supt Redfern does not give sufficient account or weight to the identified and acknowledged failure and problems with supervision encountered by Mr Eaton, an issue that was identified by Detective Inspector Egan-Lee in relation to be MVA. Instead the blame seems to have been wholly placed on Mr Eaton for not bringing issues to the attention of his supervisors that he was struggling. I fully accept that Mr Eaton certainly had a responsibility to do so, but in the circumstances outlined above I do not consider that all the blame (and therefore the adverse consequence) should be sheeted home to him as it clearly was. 526 I also consider it particularly significant to note what did happen when it was drawn to supervisors' attention such as in the case of SC Latham? Absolutely nothing on the evidence of Sgt Hedges and Sgt Dunn. Indeed Sgt Dunn said she relied on such comments in regard to time management in his Duty Book as one of the reasons for failing his Duty Book. And this in circumstances where SC Latham had clearly flagged and raised that he needed more supervision and help and yet none was forthcoming. 527 Ms Lowson also makes a very valid point that it is the very nature of a probationary period that problems such as this are picked up and addressed remedially in an appropriate way. 528 The need for Mr Eaton to receive additional assistance/supervision was identified by a number of people - Sgt Fitzgerald, Sgt Dunn, A/Inspector Dowling and Detective Inspector Egan- Lee. Sgt Dunn said this could have been provided without difficulty. However that was not the course pursued. 529 Having carefully considered all of the available evidence in relation to the Duty Book for Session 4, previous Duty Books and workload issues generally (including matters concerning the 14 outstanding Events) and in the light of findings I deal with below in relation to alleged deception/integrity, I find that Mr Eaton should have been passed on his Duty Book weeks 7 to 12 and consequently passed on to Session 5 but with additional appropriate supervision and mentoring put into place. 530 I also find that Mr Eaton's three outstanding Events whilst of concern, should have been addressed through additional training and supervision and did not warrant being included in consideration as to his dismissal. Deception/Integrity - 13 and 14 April 2008 531 It is quite clear that on the 13th and 14th of April 2008, Mr Eaton did mislead both A/Sgt Sardelich and Sgt Fitzgerald by not providing them with his PLAC printout as well as his CCU printout. 532 However having said that, I accept that Mr Eaton misled those two officers unintentionally as he has consistently maintained. He did not set out to deliberately mislead them as is asserted by Sgt Fitzgerald in his highly subjective and damaging Report and email to Sgt Dun concerning the events that took place. 533 It also seems clear to me that Sgt Fitzgerald's Report and email and the way he characterises what took place, provided the context for, and coloured and influenced, Supt Redfern's view of those events. 534 Sgt Fitzgerald's Report actually refers principally to his attempts to complete the CMF checks or the six weekly workload checks (which on Supt Redfern's evidence was being trialled and had apparently only been undertaken by Sgt Fitzgerald) with his knowledge that the Duty Book was also due. He refers in the report to Mr Eaton "managed to avoid my attempts to complete his CMF checks." This clearly indicates a deliberate action on Mr Eaton's part. Yet given the circumstances (Sgt Fitzgerald's brief time at Parramatta, no previous such check) there is no basis in my view for that assumption to have been drawn. The report is also headed as "Dishonesty displayed ....". Again setting the context in which Supt Redfern then proceeds. 535 The email he sent to Sgt Dunn was even more damaging and prejudicial. In that email he said that "his workbook, the (Blue) on (sic) was signed behind my back, shopping for a supervisor, s/c Sardelich. Prior to the required date I told him I wouldn't sign it till he explained his work off (emphasis added)." At no time did Sgt Fitzgerald actually put this accusation to Mr Eaton and check with him what had actually happened nor did he raise this specific issue and check out the facts of what had happened with SC Sardelich. Yet he had the opportunity to do so the next day when, together with Sgt Dunn, they showed SC Sardelich the PLAC printout with the 14 Events. 536 Although Sgt Fitzgerald amended his witness statement in proceedings to delete reference to SC Sardelich not being in Team 3 at that time, he clearly did draw that conclusion at that time, and wrote both his report and the email on that basis and took no action to verify the situation. His whole characterisation of Mr Eaton going behind his back in some deliberate way to avoid him and be dishonest was not justified or sustainable in my view, yet seems to have set the scene, as it were, for the views formed by Supt Redfern who relied on Sgt Fitzgerald's account rather than anything said to the contrary by Mr Eaton (and didn't seek that Mr Eaton report on the events in writing). This view was also formed in the absence of any further checking with A/Sgt Sardelich about what happened. 537 When looking at SC Sardelich's Report of the events of 13 April he did not clarify or address in any way that it was not inappropriate for him to have signed off on the Duty Book, which suggests that he was unaware that this was an issue which Sgt Fitzgerald had raised against Mr Eaton as establishing, in part, his dishonesty. 538 It was an issue that clearly provided basis for the assertion that Mr Eaton had deliberately not shown his PLAC profile with the intention of concealing his workload. If that was his intention then, as Ms Lowson points out, he accessed this profile at the front desk where he was in clear view of Sgt Fitzgerald (notwithstanding the differences in the evidence about the set up at the Station) which was not the action of someone seeking to conceal his work. 539 SC Sardelich also accepted the subsequent apology provided by Mr Eaton, provided him with a reference for his appeal to CSU and said that Mr Eaton did not hesitate in answering the issue and had learnt from his mistake. 540 I also find it very significant that both A/Inspector Dowling and Detective Inspector Egan-Lee were of the view that Mr Eaton's misleading of those officers was not deliberate and intentional. Unlike Supt Redfern I place more weight on the actual person who did the interviewing of Mr Eaton (and who had also undertaken some supervision of Mr Eaton and allocated the statute barred MVA to him), particularly in the absence of Mr Eaton having been required to also write a report of the events of 13 and 14 April which may have assisted in establishing just what occurred and also what was said. 541 As noted above, Detective Inspector Nibbs sought specific comment from Supt Redfern on the range of issues canvassed by Mr Eaton in his Response as well as seeking further clarification on a number of other issues. 542 Relevantly, when considering the issue of honesty and integrity, I note that Detective Inspector Nibbs commented in relation to the interview with A/Inspector Dowling and the issue of the two profiles as follows: However, it is noted that Pro/Constable Eaton was honest and upfront about his access to both profiles when he was asked about them, and did not conceal his ability to work on both profiles. When asked about the existence of the CCU profile by Sgt Fitzgerald on 14/4/2008, Pro/Constable Eaton openly explained how he could access both profiles. 543 Detective Inspector Nibbs then went on to refer to Mr Eaton raising the issue of never having had a six-week workload check conducted by a supervisor and no idea they existed or what was involved in them. Supt Redfern acknowledged that that was in fact the position in his reply letter, as dealt with in evidence above. However he also indicated that Mr Eaton should have asked Sgt Fitzgerald about the check and that PCs were taught to challenge and ask questions. 544 Mr Eaton said he was reluctant to raise issues with Sgt Fitzgerald. and thought him unapproachable. In the circumstances of the extremely brief contact between them to that date and given what I observed of Sgt Fitzgerald, I can readily understand that position. I have no doubt whatsoever that Sgt Fitzgerald is an extremely efficient and effective police officer. However he also came across to me a person who does not suffer fools gladly, as is obvious from some of the observations he made about others during his evidence (to be referred to further below). I can readily imagine he may come across as being somewhat unapproachable and also somewhat daunting, notwithstanding that I particularly noted his evidence in relation not realising that his report (and as a standard report) would lead to Mr Eaton's dismissal. He went on to say in relation to MVAs going statute barred as follows: .........Normally and from a Sergeant's point of view, you find a statute barred accident, you create a report and you send it to the Crime Management Team. It is for the Education Officer to develop a plan to re-educate them, to help them, to build them along. I think that's what the Sergeant's job is. We're not there to torture them, you're there to help them, work them along. 545 It is indeed unfortunate that Sgt Fitzgerald had not been at Parramatta much earlier in Mr Eaton's probationary period and had greater opportunity to supervise him in the undoubtedly rigorous and efficient manner that he would have undertaken and rendered any necessary and assistance. I am sure that if that had been the case, Mr Eaton would not have ended up in the difficulties he became mired in and would not then have been dismissed. Mr Eaton had also acknowledged a similar sentiment as to what would have been the benefit to him of having someone like Sgt Fitzgerald in the past. 546 As I have already noted above in evidence I am not concerned by the apparent conflict in evidence about the set-up/configuration at the Station in relation to the front desk/glass/Supervising Sergeants Office, as their was no contest that it was possible to view through the glass the computer at the front desk and thus see Mr Eaton's outstanding Events. 547 Similarly I am not concerned at the apparent differences in the evidence about how Const Dzendolet came to be involved in assisting Mr Eaton with the outstanding events. Having carefully considered the evidence of Sgt Fitzgerald and Mr Eaton it is clear to me that Mr Eaton just was did not know (and was never told) that Sgt Fitzgerald had phoned Const Dzendolet and asked him the come in and do a job. It is also clear to me that Sgt Fitzgerald may not have told Const Dzendolet just what he wanted him to do. Thus when Const Dzendolet came in and encountered Mr Eaton he indicated that he was going to speak to Sgt Fitzgerald about the Events and seek to assist him (Mr Eaton's version) is not necessarily inconsistent with St Fitzgerald's account. It was consistent with what he subsequently told A/Inspector Dowling. He certainly took no action to conceal his work from Const Dzendolet. Again I note there was no evidence or report from Constable Dzendolet (and there was no written report required of Mr Eaton). The outstanding issue of conflict is when the printout of the PLAC profile was carried out - before or after this encounter. However in the overall scheme of things I do not consider this of overwhelming significance. 548 I acknowledge that it was regrettable and foolish on his part not to draw to the attention of A/Inspector Dowling at the time of the interview his disagreement with what he had recorded as the answer to Q.31. I also accept that he subsequently compounded that error in his Response to the Notice. 549 It is also unfortunate that he did not avail himself of the opportunity of having a support person present who may have been able to substantiate his version of how the interview unfolded (particularly in the absence of the benefit of any evidence from A/Inspector Dowling). This may indicate his lack of appreciation of the potential implications of such an interview. 550 I do not accept Mr Ginters' submission that because Mr Eaton had been trained in criminal interview procedures at College then he should have been aware of the importance of checking the accuracy of the Record of Interview provided and making any necessary changes. I would expect that the standard of transcribing in relation to criminal investigations would be of the highest order and that is, an absolute verbatim account. This was clearly not that type of interview and unless issues of individual disciplinary matters and how they are handled (including the interview process) are dealt with at College, then it should not be assumed that Mr Eaton would be entitled to have any particular expectations about that interview or expertise in participating in such. There is also no evidence as to whether Mr Eaton had participated in any criminal interview process during his service prior to this time. 551 I also have to say, that I have never yet had complete agreement at a hearing between the relevant participants as to the minutes of a disciplinary/investigative interview, even in circumstances where those minutes have been recorded electronically and subsequently typed. Even in that instance there was dispute about the typed version of the electronic record. 552 However what I do consider relevant and compelling, is that he made it quite clear in other answers so recorded, and in his Response to the Notice, that he did not intentionally seek to mislead either officer. That has been consistently maintained. He has also consistently accepted responsibility for his error. 553 Mr Eaton also specifically denied in his Response that he had deliberately deceived the two officers as to the true position of his workload and in so doing relied upon the definitions of "deliberate" in the Macquarie Dictionary. I have also considered those definitions (Second Edition) as follows: 1. Carefully weighed or considered; studied; intentional. 2. Characterised by deliberations; careful or slow in deciding. 3. ....n/a.... 4. To weigh in the mind; consider. 5. To think carefully or attentively; reflect. 554 Applying those definitions, I cannot find that the actions of Mr Eaton in not showing his PLAC profile to the two officers concerned on 13 and 14 April 2008 were in any way deliberate. Indeed it is apparent that the very last thing he did was to "carefully", "attentively" or in any "considered" or "studied" way "weigh in his mind" his actions at the time in simply providing his CCU profile, which was the one he happened to be working in at the relevant time. He just gave no proper thought to the matter at all on either date. That was careless and thoughtless but not deliberately intentional. 555 Having carefully considered all the evidence that is before me in this matter I have come to the conclusion that Mr Eaton did not deliberately set out to mislead or deceive either A/Sgt Sardelich or Sgt Fitzgerald. It was a however significant error which he has consistently accepted and acknowledged. 556 Having come to that conclusion it then is inescapable that I do not consider that this reflects on Mr Eaton's integrity such that he should not be reinstated to his position in the NSW Police Force. The Investigation/Procedural Issues 557 In relation to procedural fairness, Byrne & Anor v Australian Airlines has also been relied on in numerous decisions of this Commission including Wang v Crestell Industries Pty Ltd (1997) 73 IR 454; Rapp v Wauchope RSL Club (1998) 81 IR 434; Burke v McGirr (1998) 87 IR 54; Busways v Johnson (1994) 55 IR 255 and Antonakopoulos v State Bank (1999) 91 IR 385. 558 I acknowledge that Mr Eaton participated in an interview about certain of the allegations against him, was told by Supt Redfern that he intended to recommend his dismissal, was subsequently provided with a detailed Notice advising him of those allegations, the basis for those allegations and the penalty being considered and was given the opportunity of responding to that notice before the Order dismissing him was made. 559 Nevertheless, I have a number of concerns as to procedural issues and hence procedural fairness, arising from a careful consideration of the evidence in this matter. Those concerns may be summarised as follows: 1. There was no follow-up interview of either Sgt Fitzgerald or A/Sgt Sardelich. 2. Mr Eaton was not asked to provide a written report of the events of the two-days in circumstances where there was a written account given of conversations involving him. 3. There was no report sought from, or interview of Const. Dzendolet in circumstances where Supt. Redfern relied on Sgt Fitzgerald's (hearsay) account of damaging comments made by him about Mr Eaton when assisting with the 14 Events. 4. There was no interview or report sought of any of Mr Eaton's former supervisors in circumstances where Supt. Redfern drew adverse conclusions about the veracity of his earlier Duty Books. 5. The handwritten notes of Supt Redfern as to the meeting he subsequently had with Mr Eaton (with Sgt Dun and Inspector Stirton) whilst indicating that he told Mr Eaton the matter was "serious", at no stage can I see that Mr Eaton was told that his employment was at risk and that disciplinary options could also include dismissal. This was not raised until after the interview when Supt Redfern told him he was recommending his dismissal. Clearly Supt Redfern could not have told him he would recommend his dismissal before the investigation had taken place, however this raised the issue of Mr Eaton not being advised of the possibility of dismissal being considered as a disciplinary consequence (and therefore being in a position to more fully appreciating the crucial importance of the interview process). 6. There were allegations raised for the first time in the Notice (10 March deception and the 3 outstanding Events) some 10 months after the relevant time in which they occurred and in circumstances where these issues were not raised in the interview by A/Inspector Dowling. 7. There was no further interview of Mr Eaton following the provision of his Response and in circumstances where "potential issues" were identified by Detective Inspector Nibbs (see below) and further clarification was sought, but only of Supt Redfern. 8. The length of time taken to investigate the matter and arrive at a decision to dismiss. This will be commented on further below. 560 I have considered the issue of there being no evidence from the decision maker and whilst it is true that in previous matters as indicated by Ms Lowson that has been the subject of criticism by various members of the Commission (and Full Benches), and indeed on some occasions has been a significant factor taken into account in arriving at a particular decision, I am not so concerned with that on this occasion. 561 It is clear from the evidence of the correspondence of 5 June 2009 from the Executive Officer of Professional Standards to Assistant Commissioner Corboy, the ultimate decision maker, that Mr Eaton's Response had been reviewed by that Office, and there had also been a further review of the investigation file. As a result "potential issues with the reliability of the information reported were identified. Consequently, requisitions dated 11 May 2009 were made of the Parramatta Command. A reply to those requisitions was received on 2 June 2009". That reply was provided by Supt Redfern (and is in evidence) and was the only additional document (apart from the requisitions - being the letter from Detective Inspector Nibbs) that was provided to Asst Commissioner Corboy. 562 Thus it seems to me that the reality is that Asst Commissioner Corboy relied on Supt Redfern's reply letter and his view that, "I believe that the process of termination should proceed." Notwithstanding the query that had been raised by Detective Inspector Nibbs (see above), Supt Redfern reaffirmed his view, and the basis for that view, that Mr Eaton had deliberately lied to both supervisors. In the absence of any interview of Mr Eaton by Asst Commissioner Corboy which may have indicated the possibility of further separate and additional consideration being given by the decision maker and in the absence of any other documents being provided to the Asst Commissioner it seems to me that the decision has proceeded on the basis of the material listed and the recommendation of Supt Redfern who was present to give evidence before the Commission. 563 The issue of the length of the delay taken to progress Mr Eaton's matter by NSW Police is somewhat interwoven with the condonation/waiver issue raised by Ms Lowson. I also note that there has been no explanation proffered by the respondent as to any reason(s) for the delay. 564 I accept Mr Ginters' submission that to have suspended Mr Eaton may have suggested that judgement had already been passed, to an extent. 565 However, one of the difficulties I have is that there was no evidence before the Commission as to what alternative disciplinary procedures were available to the respondent or what other disciplinary practices may have been applied to other police officers in any similar situations, particularly as may have applied to Probationary Constables. 566 Although it is apparent from an attachment to the Order (Exhibit 6 - RR13), "Probationary Constable Review Panel, Advice of Outcome - Police Act 1990 s. 80(3) Information Package for Commander," that there is an ability to suspend from duty...." If the officer is suspended from duty, you are reminded that Police Regulation 2008 s.9 (2)(3) requires the officer to advise contact details are absent from home for more than 24 hours." The paragraph then refers to the process for advising of service of an Order. However no details as to the circumstances in which an officer may be suspended from duty were dealt with in the evidence. 567 Certainly I am aware from the matters that have come before me, both for conciliation and for hearing, in both the public sector generally and in local government, that there is the ability, and indeed the practice on many occasions, depending on the seriousness or nature of allegations raised against an employee, for that employee to be suspended, usually on pay, but in extreme circumstances of very serious misconduct without pay, pending the outcome of an investigation. 568 In Mr Eaton's case, where allegations of deliberately lying to superior officers were made and raising what Supt Redfern considered the fundamental issue of Mr Eaton's integrity as a police officer, to have placed by Supt Redfern on restricted duties, but still have him serving at the Station for a reasonably extended period of time, indeed almost 14 months, where he is dealing with fellow police officers and the public on a daily basis, tends to fly in the face of the views expressed that he was unsuitable to be a police officer because of the integrity issue. 569 Mr Eaton had in fact 14 months, even on restricted duties, to prove himself a reliable and conscientious police officer. Sgt Bourke and Sgt Prasad came to this Commission and gave evidence testifying to his good work (particularly from Sgt Prasad in relation to his work and relevant issues as to use of COPS), conduct, general demeanour and integrity during that period. 570 I consider that further 14 months' satisfactory and unblemished service, in the particular circumstances of the allegations made against Mr Eaton, to be extremely significant. He had the chance to prove himself, and in my view, he did so. That is a view that certainly seems to be shared by Sgt Bourke and Sgt Prasad. 571 Supt Redfern, in the documentation relied on by Asst Commissioner Corboy, did acknowledge that Mr Eaton had continued to perform restricted duties without taking sick leave and on a number of celebratory days and public holidays and that this was "to the officer's credit". He also indicated that he had "little doubt" that he could "be a success in many endeavours. However that further period of service does not seem to have made any difference in Supt Redfern's view that, "I do not believe that he has the aptitude or capacity to be a successful police officer. Further he has failed most important test of all in terms of a failure to display the required level of integrity." There seems to have been no reassessment of that view in the light of the fact that Mr Eaton would have been expected to display a level of integrity on a daily basis during that 14 month period and obviously did so in the light of the evidence of Sgt Bourke and Sgt Prasad with nothing brought against him about that period of service. 572 That is the relevant point of the submissions made by Ms Lowson, which I accept fully. 573 In my view the concerns I have detailed above did not allow for there to be a proper and informed decision to be made. 574 Having carefully considered the relevant evidence and submissions in relation to the issue of procedural fairness I find that there were sufficient deficiencies in the process as I have dealt with above to make the dismissal of Mr Eaton harsh and unreasonable and unjust on a procedural fairness basis. Had those deficiencies as detailed above been addressed then there may well have been a vastly different outcome in my view. Findings 575 I do not propose to make findings about specific evidence but rather summarise the findings that have generally been traversed above as a result of my consideration of the evidence and submissions. 576 In summary I find the following: 1. The statute barred MVA should not have been taken into account in arriving at the decision to dismiss Mr Eaton. It was an MVA that, quite possibly, should not have been allocated to him in the first place, given its particular circumstances. There was also a significant failure on the part of seven supervisory officers to pick up that this MVA was about to, or had become, statute barred and provide necessary assistance to Mr Eaton; 2. Mr Eaton did not deliberately deceive either A/Sgt Sardelich or Sgt Fitzgerald in not providing his PLAC profile but did mislead them, albeit unintentionally. It was entirely appropriate for Mr Eaton to approach A/Sgt Sardelich to have his Duty Book signed off; 3. Mr Eaton did not actively conceal his workload. He did indicate to SC Latham during the early part of 2008 that he needed assistance. SC Latham raised the matter appropriately, both verbally and in writing, however no such assistance was subsequently provided in circumstances where his workload/time management issues was not only one of the reasons for failing his Duty Book resulting in a consequential failure of the subject and exclusion from the ADPP, but one of the reasons relied on for the decision to dismiss him. 4. There was a significant failure of supervision in the early part of 2008 that contributed to his workload/time management difficulties. 5. In all the circumstances Mr Eaton should not have been failed on his Duty Book for weeks 7 to 12, Session 4, and should have been passed on to Session 5, but with greater monitoring and supervision (and training). 6. Procedural issues exist, as outlined above, that impact on consideration as to whether procedural fairness had been accorded to Mr Eaton, when taking all of the circumstances and evidence available into account. 7. No issue can be raised concerning Mr Eaton's integrity that would prevent him being reinstated. 8. Mr Eaton became eligible to reapply for admission to the ADPP in April this year. 9. There have been no practical barriers raised to prevent Mr Eaton being reinstated. 577 Having made those findings I turn to consideration of whether the dismissal of Mr Eaton was harsh and or unjust and or unreasonable and sufficiently so as to warrant intervention in the decision that has been made by Assistant Commissioner Corboy. 578 The expression "harsh, unjust or unreasonable", was also considered in Byrne. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 579 The meaning of those individual terms was been considered in detail in Sams v Contact Point International [2001] NSWIRComm 18 and that decision has been applied in numerous other decisions of this Commission. I also adopt those considerations. 580 Bankstown City Council v Paris (1999) 93 IR 209, is authority for the necessity of the Commission making a positive finding as to whether the termination was harsh, or unjust, or unreasonable (or any combination thereof) and the grounds upon which the Commission so finds. 581 This approach was reiterated by the Full Bench in National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at paras [64] and [65]: 64 Finally, we stress the importance of a Member of the Commission at first instance in s 84 proceedings dealing expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/As Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the tribunal should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. 65 In the present case, Cambridge C found that the dismissal of the applicant was not harsh, unreasonable or unjust and we consider an examination of the Commissioner's reasons support his conclusion. It would have been preferable, however, if the Commissioner had spelt out in clear terms why, under each limb of the tripartite test, the dismissal was not an "unfair dismissal". 582 It also would seem to me that it would logically follow that if a termination is considered too harsh a penalty in all the circumstances that have been taken into account by the Commission, then such a termination is also unjust. 583 I have also carefully considered the various Police cases that have been cited respectively by Ms Lowson and Mr Ginters. 584 After carefully considering the evidence and submissions of the parties, applying the relevant cases and in the light of the findings outlined above I find that the dismissal of David Eaton from his position of Probationary Constable in the NSW Police Force was harsh and unjust and unreasonable on both substantive and procedural grounds. Remedy 585 Mr Eaton has sought reinstatement to his former position. I am required to consider whether or not that is practicable on the evidence before me. 586 The only persons who opposed reinstatement were Sgt Fitzgerald and Supt Redfern. All other officers (including those called by the respondent) clearly indicated that they would have no problem working with Mr Eaton in the future. 587 I give no account whatsoever to Sgt Fitzgerald's views. They seemed to be based on the few months he served at Parramatta and the just over one month he was on Team 3, and on Mr Eaton's witness statements. He did not experience any of Mr Eaton's subsequent work performance and efforts when restricted to Station duties as did Sgt Bourke and Sgt Prasad and as they were prepared to come to this Commission and positively attest to. I also note that Sgt Fitzgerald generally did not have complementary comments to make about certain other individual officers or the Parramatta Station as a whole. The only person excused from his somewhat acerbic observations was Supt Redfern. 588 As for Supt Redfern, it did appear that he formed, quite incomprehensibly to me, very adverse and quite unshakeable views against Mr Eaton. 589 Whereas I am satisfied, having had the benefit of the much more comprehensive evidence available and before me and being able to consider that evidence, that Mr Eaton's integrity is not in question. Given the findings I have made I can see no barrier to his ability to be reinstated to his position of Probationary Constable. 590 As already dealt with above, there have been consistent views expressed about Mr Eaton's good character, performance, and indeed from some witnesses, his promise as a police officer, throughout the evidence. In my very firm view this is a young man who would clearly be an asset to the NSW Police Force. 591 Applying the principles usually relied on in such a consideration, as enunciated in such decisions as Loty and Holloway v AWU (1971) AR (NSW) 95 and Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 and as previously applied in Cockayne, I consider that it is entirely practicable to reinstate Mr Eaton to his position of Probationary Constable and I propose to issue orders to that effect. 592 That reinstatement shall operate from the date of his dismissal however will be made subject to certain conditions and I propose to make further orders pursuant to s.89(8). 593 I have also carefully considered the conditions which I intend to apply to Mr Eaton's reinstatement. 594 Obviously re-admission to the ADPP will be one of those conditions. However, I expect NSW Police to take all steps as may be necessary to assist Mr Eaton in securing that re-admission. There is no evidence before me as to what is involved in that process and how quickly that might be effected. 595 Less clear is what should happen in relation to his practical training. As I indicated above I do not consider that he should have been failed his Duty Book for weeks 7 to 12 of Session 4, and should have been progressed on to Session 5. However, I acknowledge that which Session he resumes on may be dependent on CSU's requirements in relation to re-admission to the ADPP (and that may indeed unfortunately involve a third attempt at PPP242 and Session 4 of the Duty Book requirement). 596 I also expect that this decision and my findings will be brought to the attention of the relevant persons at CSU involved in considering that re-admission. 597 If it is at all possible he should recommence on Session 5, but I do not propose to make formal orders to that effect given what I have just outlined. 598 Consideration should also be given to confirming Mr Eaton as a Constable as soon as is practicable, subject to any requirements associated with the ADPP. He had been due to be so confirmed on the 7 May 2008, but it is not clear from the evidence whether or not he would have needed to have completed Session 5 before such confirmation. 599 I would also hope, and I am sure, that Mr Eaton's peers and senior officers, and in particular those who have supported him during his Police service thus far, will continue to assist and encourage him to resume his chosen career. 600 I also expect Mr Eaton to apply himself with the utmost diligence and endeavour to his studies and his duties. I also expect Mr Eaton to ensure that in the future if he has any difficulties or feels he needs help in any way or is struggling with an issue or problem that he will seek appropriate advice and assistance. Advice and assistance that is obviously readily available. 601 I consider that it would be far too harsh a penalty, and entirely unwarranted, particularly in the light of the findings that I have made, to order reinstatement to only operate from the date of this decision. 602 In considering the consequential issue of back-pay that arises, I have taken into account both the submissions of Ms Lowson and Mr Ginters and the cases they have cited on this specific issue. 603 I accept, as I have acknowledged in the findings above, that Mr Eaton did mislead the two supervising officers in question and has acknowledged that he did so. I also accept however it was not his intention to mislead and that he has acknowledged and accepted responsibility for his error of judgement. 604 I also accept that he should have corrected his account of the Record of Interview, had two occasions on which he could make what correction he thought necessary, and did not do so until the 16 November 2009, when he filed his first witness statement in this matter. 605 I am not entirely sure whether correcting that interview record would have changed Supt Redfern's strongly held views about Mr Eaton and his actions on the 13th and 14th of April 2008. Although I do expect that it would have been of significance to the further consideration of Supt Redfern's Report by both Detective Inspector Nibbs and the Executive Officer of the Office of Professional Standards, Corporate Services and hence Asst Commissioner Corboys. 606 The failure of his Duty Book and consequential exclusion from the ADPP, his placement on restricted duties, not to mention the length of time taken to investigate and make a decision about Mr Eaton's dismissal, have had the effect of placing Mr Eaton two years behind those other probationary officers who were also attested in May 2007 and with whom he attended the Goulburn Police Academy. He has suffered a two year setback to what was developing, on the opinion of his supervisors, into a promising police career. A career that he has gone to great lengths and devoted considerable time and effort to be able to embark upon in the first place. This is, in itself, a not inconsiderable penalty in the light of the findings that I have made. 607 Having said all that I do consider in all of the circumstances of this matter, that it is appropriate to impose some financial penalty arising from the reinstatement orders I propose to make and I propose to take a similar course as I did Cockayne. 608 I propose to order back-pay to the 16 November 2009, (when he first addressed the issue of correcting the record of Interview), a period of approximately 32 weeks, less any remuneration earned during that period. That effectively imposes a 16 week suspension without pay, similar to that imposed in Cockayne. 609 The Industrial Relations Commission therefore orders; 1. Pursuant to s.89(1) of the Industrial Relations Act 1996, the respondent, Commissioner of Police, shall reinstate the applicant, David Eaton, to his former position of Probationary Constable at Parramatta Police Station on terms no less favourable to those which would have applied had Mr Eaton not been placed on restricted duties in May 2008. The reinstatement of Mr Eaton shall operate from the date of dismissal, 22 July 2009. 2. The reinstatement of the applicant, David Eaton, shall be effected no later than 7 days from today's date. 3. Pursuant to s89(3), (6) and (8) of the Industrial Relations Act 1996, the respondent, the Commissioner of Police shall pay to the applicant, David Eaton, an amount equivalent to 32 weeks of the weekly rate of pay applicable as at the date of dismissal, less any gross income earned during that period in any alternate capacity (that is between 16 November 2009 and 30 June 2010). 4. Pursuant to s89(4) of the Industrial Relations Act 1996, the applicant's (David Eaton) period of service in the NSW Police shall be treated as not to have been broken by the dismissal, but the period of the 16 week non-payment will not be counted as service for the purposes' of long service leave. 5. Pursuant to s89(8) of the Industrial Relations Act 1996, the following conditions shall apply to the reinstatement of Mr Eaton: i. Reinstatement is subject to the re-admission by Charles Sturt University of Mr Eaton to the Associate Degree of Policing. Provided that the Commissioner of Police shall take all steps necessary to expedite and assist that re-admission. ii. Mr Eaton is be returned to duty with the NSW Police pending re-admission to the ADPP. iii. Mr Eaton is to undertake such further training and receive such further supervision as is considered necessary in the light of the circumstances of this case and the findings I have made. 6. These orders shall take effect on and from 30 June 2010. Elizabeth Bishop Commissioner 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.