Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIRComm 51

Industrial Relations Commission of New South Wales

CITATION: Police Association of New South Wales (on behalf of Kim Gilmour) and Commissioner of Police [2009] NSWIRComm 51

APPLICANT Police Association of New South Wales (on behalf of Kim Gilmour) PARTIES: RESPONDENT Commissioner of Police

FILE NUMBER(S): IRC 524 of 2008

CORAM: Sams DP

POLICE - loss of increment and disciplinary transfer of police senior constable in the Dog Unit - allegations of misconduct and poor performance - allegation that officer engaged in conduct which threatened serious injury to nine Labrador puppies - allegation that officer threw an article at a dog with the intention of hitting it - allegation that officer conducted inappropriate gun steadiness test on a frightened dog - breaches of the Police Force's policies and guidelines - standing and reputation of the Police Force and the Dog Unit - allegations of cruelty to animals - officer of 18 years' service with the Dog Unit - otherwise unblemished record - allegations denied - alleged eyewitnesses - conflict of evidence - officer's demeanour and attitude towards other staff - no standardised procedures for assessment - reliance on skills, knowledge, expertise and experience of trainers - second complaint of unauthorised taping of colleagues' conversations - officer transferred out of the Dog Unit - investigation of complaints conducted by senior supervisory officer - officer complaints of bias and inexperience of investigator - second investigator appointed - Complaints Management Team recommends warning and three month Conduct Management Plan - Commander desires outcome of permanent transfer out of the Dog Unit - transfer out of Dog Unit - second complaint not sustained - Internal Review Panel recommends transfer and loss of increment - length of investigation - procedural fairness - mandatory procedural steps under the Act - all relevant materials relied on provided to officer - whether de novo review negates procedural deficiencies at first instance - suitability of officer to return to the Dog Unit - former position not available - offer to return as Unit Co-ordinator rejected - officer seeks General Purpose Dog Handler position - whether positions vacant - whether officer meets all requirements of the position. CATCHWORDS: REVIEWABLE ACTION - first occasion where an order under s 177(1)(b) is sought - whether order of reviewable action beyond power - whether order harsh, unreasonable or unjust - whether officer denied procedural fairness - proper approach to Commission's review of the order - fresh and independent review - public interest - officer's interests - onus of proof - civil standard of proof - balance of probabilities - practicality of restoring officer to the Dog Unit - whether order should be revoked - 'otherwise' orders. Held; inherent unlikelihood of behaviour - eyewitnesses evidence not credible - evidence inconsistent - best evidence relied on - other witnesses not interviewed - officer's misconduct not proven - order beyond power - failure to give details of allegations to officer - investigator inappropriate - unexplained and unacceptable delays in the investigation - stress and anxiety at delay - prejudice to officer - decision maker had predetermined view - failure to follow mandatory steps under the Act - de novo review doesn't effect procedural unfairness - denial of procedural fairness - order harsh, unreasonable and unjust - no standardised procedures for assessment - nothing to measure conduct against - reliance of existing practices and procedures - officer's attitude and demeanour irrelevant to order - other trainers and supervisors attest to officer's competency, skills and experience - relief to be ordered - restructure of Dog Unit - officer not at rank of former position - officer seeks General Purpose Dog Handler position - available and vacant positions - officer performed role previously and trained other handlers - no reason why he should not be appointed to position - willingness to undergo medical, psychological and physical assessments - inappropriate and unnecessary for interview - order revoked - 'otherwise' orders made.