Industrial Relations Commission of New South Wales CITATION: Richards and Commissioner of Police [2009] NSWIRComm 137 PARTIES: Shayne Richards (Applicant) Commissioner of Police (Respondent) FILE NUMBER(S): IRC 1919 of 2007 CORAM: Marks J CATCHWORDS: APPLICATION FOR REVIEW OF DECISION OF COMMISSIONER OF POLICE - Commissioner required to give applicant notice setting out grounds for loss of confidence - allegation of unauthorised secondary employment - applicant responded to notice - prior misconduct not contained in notice of grounds to applicant however were included in Commissioner's reasons for removal - applicant not given opportunity to respond to all grounds relied upon for removal - fundamental breach of 181D process - held failure to afford procedural fairness - held failure by Commissioner to comply with statutory regime by taking applicant's response into consideration - doubts about whether it is practicable to reinstate the applicant - insufficient evidence to enable consideration of appropriate relief - proceedings stood over Industrial Relations Act 1996 s89 LEGISLATION CITED: Interpretation Act 1987 s48 Police Act 1990 ss181D, 181E, 181F, 181G Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 CASES CITED: Johnston v Commissioner of Police [2007] NSWIRComm 293 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52 Toshack v Commissioner of Police [2009] NSWIRComm 31 HEARING DATES: 20, 21 and 22 April 2009 and 3 August 2009 DATE OF JUDGMENT: 18 August 2009 Mr A Metcalfe of counsel (Applicant) Solicitor: Walter Madden Jenkins LEGAL REPRESENTATIVES: Ms E Brus of counsel (Respondent) Solicitor: Crown Solicitor JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Marks J Tuesday 18 August 2009 Matter No IRC 1919 of 2007 Shayne Richards and Commissioner of Police Application for review of an order under s 181E of the Police Act 1990 DECISION [2009] NSWIRComm 137 1 These are proceedings brought by the applicant, Shayne Scott Richards, seeking relief from a decision made by the respondent Commissioner of Police on 4 October 2007 to remove him as a police officer from the New South Wales Police Force under s 181D of the Police Act 1990 ("the Act"). S 181D is in the following terms: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. (7) Except as provided by Division 1C: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. In this subsection, "tribunal" means a court, tribunal or administrative review body, and (without limitation) includes GREAT and the Industrial Relations Commission. (7A) Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action. (7B) Nothing in Division 1C limits or otherwise affects the Commissioner's power to vary or revoke an order in force under this section. (8) For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force. (9) The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action. 2 The applicant seeks a review of the decision made by the Commissioner under s 181E of the Act. Relevantly, ss 181E and F are in the following terms: 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). The s 181D(3)(a) notice 3 By s 181D(3)(a), the Commissioner was required to give the applicant a notice setting out the grounds on which he did not have confidence in the applicant's suitability to continue as a police officer. 4 That notice was dated 26 July 2007 and was in the following terms: " Senior Constable Shayne Richards Notification Number 948 Notice under Paragraph 181D(3)(a) of the Police Act 1990 Section 181D of the Police Act 1990 enables me to remove an officer where I have lost confidence in their suitability to remain a police officer having regard to the officer's competence, integrity , performance or conduct . In accordance with paragraph 181D (3)(a) of the Police Act 1990, I hereby give you notice that I am considering your suitability to continue as a police officer taking into account your conduct and integrity, on the basis of the following grounds: - 1. On 3 January 2006 you commenced duty at Goulburn Local Area Command as a result of a disciplinary transfer. On 3 January 2006 you made application to undertake secondary employment as a self employed entertainer being a magician, known as the 'Magic Jester'. The Commander of Goulburn Local Area Commander, Superintendent Benson approved your secondary employment for a period of three (3) months. This approval was granted verbally and via confirmation letter to you on 6 February 2006. On 22 March 2006 Ms Jo Whittaker, Human Resource Administrator(HRA) from Goulburn sent you an email advising you that your approval for secondary employment was due to expire on 9 April 2006 and that if you intended to apply for approval to continue you would need to reapply. You did not reply to Jo Whittaker's request. On 6 April 2006,Ms Whittaker again sent you an email reaffirming the original email and again requesting that you complete a renewal form for secondary employment. Again Ms Whittaker received no reply from you. On 18 April 2006 Ms Narelle Kay, Local Area Manager (LAM) Goulburn Local Area Command, forwarded a letter to you informing you that your approval to undertake secondary employment had been revoked. Ms Kay stated that a renewal application was not received by the due date and additionally a review of your sick leave history indicated multiple sick leave absences. You were informed that ' participation in secondary employment as a magician should cease immediately '. On 20 April 2006 you emailed Ms Kay and explained that you believed that Jo Whittaker was employed at the Academy. Therefore you did not believe that the requests for renewal of secondary employment related to your current secondary employment approval. Although Jo Whittaker's email was signed off HRA Goulburn LAC you denied reading the entire content of the email. Ms Kay replied by email to you and stated that the email from Jo Whittaker clearly indicated that she was attached to the Goulburn Local Area Command and therefore the reminders and request for completion of the renewal application were both appropriate. On Friday 5 May 2006 and Monday 8 May 2006, you reported off sick and were absent from your workplace at the Goulburn LAC. On Friday 12 May 2006 'The Goulburn Post Newspaper', published an article containing a photograph of you performing as the 'Magic Jester' at the opening day of 'Daniel's Den Childcare Centre' on 6 May 2006. This performance was determined to be in contravention of your revoked secondary employment authorisations, as well as being conducted in a period between reported sick leave absences. The matter was recommended for further investigation. In June 2006 Acting Commander Hanson conducted an internet search for the 'Magic Jester' and located an advertisement for the Ingleburn Library advertising the 'Magic Jester' as performing on 11 July 2006. On 19 June 2006 Narelle Kay forwarded another letter to you explaining that a further review had been completed and the decision for the revocation of your secondary employment authorisation was made due to an unsatisfactory level of attendance and increased level of sick leave taken. The letter also stated, " Any secondary employment in which you engaged during the review period has been outside the original approval and has not been covered by an Application for Renewal of Secondary Employment pending this notification ". This letter was acknowledged as being received by you on the 29 June 2006. On 11 July 2006 you were observed performing unauthorised secondary employment as the Magic Jester at the Ingleburn library. This evidence was recorded. On 21 August 2006 Superintendent Benson, the Goulburn Local Area Commander was handed a school newsletter from the Mittagong Public School. The newsletter promoted the upcoming Bowral Public School 'Billy Car Derby and Market Day' for Sunday 26 August 2006. In the newsletter it was published that the 'Magic Jester' would be performing on the day. Superintendent Benson contacted you on Friday 26 August 2006 and warned you not to perform at the show. You initially denied that you were in fact performing but later conceded that you had planned to assist on the day purely out of charity. A short time later you contacted Superintendent Benson to confirm that he had made the call and you were again warned that your authorisation for secondary employment had been revoked. On 28 August 2006 Superintendent Benson confirmed with a member of the Mittagong Public School that you performed for the school for a period of three hours and were paid $300 for two separate performances. Your actions were contrary to the directions you received from Superintendent Benson. You participated in a directed interview on 1 September 2006 in which you were questioned about your understanding of your secondary employment approval being revoked and your continued breaches. During this interview you admitted to numerous breaches of the secondary employment policy. You were also untruthful in your interview until your were provided evidence that contradicted your answers. Four Adverse Findings were made against you: · An Adverse Finding was made against you that you undertook unauthorised secondary employment at Daniels Den Childcare Centre on 6 May 2006. · An Adverse Finding was made against you in that you undertook unauthorised secondary employment at Ingleburn Library on 11 July 2006. · An Adverse Finding was made against you that you undertook unauthorised secondary employment at Bowral Public School on 26 August 2006. · An Adverse Finding was made against you for lying to Investigator/Supervisor conducting inquiries. You have breached Clause 9(1) of the Police Regulation 2000, Performance of duties by police officers, which states: · " Police officers are to comply strictly with the Act and are to promptly comply with all lawful orders from those in authority over them ." You have breached the Secondary Employment Policy and Guidelines, Clause 4 (3). Approval Process, which states: · " Employees are required to submit a fresh application on a Renewal Application Form (P446) and gain approval, prior to the expiration of the previously approved period, if they wish to continue in the secondary employment. Such Renewal Application Forms should be submitted at least one month in advance of the expiration date of existing approval ." You have breached the Secondary Employment Policy and Guidelines, Clause 4 (2). Approval Process, which states: · Employees are not permitted to commence secondary employment until such time as they are formally advised that the application has been approved . You have breached the New South Wales Code of Conduct and Ethics in respect to Secondary Employment which states: · " You must have written approval from your commander before you engage in any form of secondary employment outside official duties ." In lying to the investigator, Superintendent Benson, while inquiries were being conducted you have also breached the New South Wales Police Code of Conduct and Ethics (Statement of Values) which states (Annexure 10 Page 1)(inter alia): " Each member of the NSW Police is to act in a manner which: · Places integrity above all ." You are hereby notified that I am considering making an order for your removal from the New South Wales Police Force under section 181D of the NSW Police Act 1990. In accordance with section 181D(3)(b), prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so. Annexed to this Notice is a submission, which I have read and taken into account in issuing this Notice to you. The submission augments the matters raised in the Notice and any response to the Notice should take into account the submission ." 5 The last paragraph of the notice refers to a "submission" annexed to the notice which is said to have been "read and taken into account" by the Commissioner in issuing the notice under s 181D(3)(a). It was said to "augment" the matters raised in the notice and the applicant was asked to take into account "the submission" in any response that he wished to make. 6 The submission contained a number of documents, the first of which is a synopsis of a number of matters concerning the applicant. The first nine pages deal substantially with an allegation of unauthorised secondary employment and other matters associated with that allegation. There is then included, in one-and-a-half pages, reference to a number of matters including unauthorised secondary employment in June 2000, improper behaviour associated with the applicant's work at the Goulbourn Police Academy, which occurred in incidents in June and July 2001, an allegation of a similar kind relating to an incident in early 2003 and an allegation concerning misuse of an email system in March 2005. 7 Finally, there was reference to an award and complimentary remarks received by the Commissioner concerning the applicant's work as a police officer. 8 There then followed a number of annexures to the synopsis to which I have referred. These consisted, in summary form, of a copy of written communications with the applicant concerning the secondary employment issue, a record of interview between the applicant and Superintendent Benson of 1 September 2006 and a warning notice, conduct management plan and other documents relating to the earlier allegations of misconduct to which I have briefly referred. The applicant's response 9 By letter dated 10 September 2007, the applicant responded to the s 181D notice given to him. 10 In connection with the "submission" documents, which were attached to the Commissioner's notice, the applicant in his response said that because he had not been given a copy of all the source documents and information relied upon by the Commissioner, or relied upon by any other person involved in the creation of the notice, it was not possible for him to address all of the issues that had been considered. He asked for a copy of all the source documents and material. He also alleged that, not having been specifically referred to any part of the submission, he would have to speculate about what parts the Commissioner considered more relevant than others. 11 The respondent's submission covered his background, the history of his work with the New South Wales Police Force and some information concerning his personal circumstances. He also dealt with the specific allegations concerning the secondary employment matter. 12 In his response, the applicant did not refer in any detail to the allegations made of the earlier conduct. With respect to the "email" matter, he said that the allegation was false and was contrary to a notice that he had received about the matter at the time. 13 I shall refer later to the specific response to the notice concerning the secondary employment matter, which, as I understand it, formed the basis for the reason to issue the initial notice and formed a substantial part of the reasons for the decision to remove. The secondary employment issue 14 I now turn to consider the evidence contained within the Commissioner's submission documents which were made available to the applicant at the time that he received the Commissioner's original notice issued under s 181D(3), and in doing so I shall refer also to the applicant's response and the evidence about these matters given in the course of the hearing of these proceedings. 15 The applicant became a police officer in 1993 after completing the New South Wales Police Academy course. He was promoted to Senior Constable in 1997. 16 There is evidence that the applicant sustained a hurt on duty injury, the sequelae of which created ongoing partial incapacity for work which persisted at the time that the incidents that gave rise to these proceedings occurred. The applicant said that in March 1999, he assisted in quelling a melee at St Clair and permanently injured his left arm and shoulder, and caused damage to his upper spine. 17 On 6 January 2000, the applicant commenced work as a subject co-ordinator in the constable development program at the New South Wales Police Academy, Goulbourn. The applicant said that he was assessed by a police medical officer in 2002 as having a choice of either being medically discharged or being placed on permanent restricted duties and he chose the latter course. 18 For some time previously, the applicant had developed a hobby as a magician and whilst at the Police Academy submitted an application for secondary employment as a magician which he said was approved, although this does not appear to be clear from the police records. 19 Police records show that the applicant was the subject of a complaint in 2000 relating to unauthorised secondary employment as a magician when he offered "magician's services to Academy staff by placing advertising around bulletin boards within the Academy." It was said that "managerial action" was taken against him. 20 Complaints were also made against the applicant relating to inappropriate conduct whilst at the Police Academy, which occurred in June 2001, July 2001 and early 2003. 21 In about March 2003, the applicant was given a warning letter concerning the inappropriate conduct and was placed under a "Conduct Management Plan". 22 Later, arising out of the conduct that occurred in September 2003, the applicant was given a notice on 24 June 2005 and was directed to be transferred out of the Goulbourn Police Academy to Flemington Local Area Command. However, as a result of proceedings taken in this Commission, the applicant accepted a transfer to the Goulbourn Local Area Command, apparently on the basis that he undertook "permanent restricted duties". The applicant commenced duty at the Goulbourn Local Area Command on 3 January 2006. 23 On 3 January 2006, the applicant made an application to undertake secondary employment as a magician known as the "Magic Jester". This was approved by the LAC Commander, Superintendent Benson, for a period of three months commencing 9 January 2006. In a letter signed by Ms C N Kay, the local area manager, the applicant was advised that during the period of approval "sick leave history will be monitored and reviewed on regular basis. Increased sick leave absences will lead to withdrawal of this approval." 24 The applicant was forwarded an internal email by Joanna Whittaker on 22 March 2006 advising him that his secondary employment approval was due for review and asked that he complete a renewal application and forward it to Narelle Kay. On 6 April 2006, Ms Whittaker forwarded another email to the applicant indicating that she had received no response to her earlier email and asking him to complete an application to continue with secondary employment promptly. Both of those emails indicated that Ms Whittaker was from "HRA Goulbourn LAC". Joanne Whittaker's position as HRA stands for Human Resource Administrator. Ms Whittaker was appointed to that position at Goulbourn LAC on 6 March 2006. Prior to that she worked in the Human Resource Unit at the New South Wales Police Academy. 25 On 18 April 2006, Ms Kay forwarded a letter to the applicant indicating that approval to undertake secondary employment had been revoked because, firstly, the applicant had not submitted any renewal application and, secondly, "a review of your sick leave history during the three months commencing 09.01.06 indicates multiple sick leave absences." The applicant was asked to contact Ms Kay on a specified telephone number if he had any queries. 26 On 20 April 2006, the applicant forwarded an email to Ms Kay saying that he was unaware that he had to submit a renewal application, and that he thought that the communications from Ms Whittaker were made to him by her in some capacity associated with the Police Academy and were therefore irrelevant. He complained about the revocation of his secondary employment authority and indicated that he only performed four shows a month as a magician, that he was not engaged in any physical activity which would affect his medical condition and that his secondary employment was "crucial to my mental state". Furthermore, he said that he did not believe that he had had any increased work absences over the period. 27 Ms Kay responded the same day indicating that she would discuss the matter with the LAC Commander Mr Benson and pointing out that the communications from Ms Whittaker indicated that she was attached to the Goulbourn LAC and not to the Police Academy. 28 By letter dated 19 June 2006, Ms Kay indicated that the revocation of the secondary employment authority made on 18 April 2006 would stand. She indicated in that letter that the applicant had an unsatisfactory level of attendance "with a demonstrated inability to meet the limited hours of your current return to work plan." The applicant acknowledged receipt of that advice in writing on 29 June 2006. 29 Material provided within the Commissioner's submission document indicates that the applicant was observed performing as the Magic Jester in Ingleburn Library on 11 July 2006. On 21 August 2006, the Local Area Commander, now Chief Superintendent Benson, noted from information contained in a local newspaper that the Magic Jester would be performing at a function on 26 August 2006. The applicant was spoken to by Chief Superintendent Benson and warned not to perform. It appears, however, that the applicant did perform at that event. On 28 August 2006, Chief Superintendent Benson received confirmation that the applicant had performed at a function for the Mittagong Public School and had been paid $300 for three hours' work. 30 These matters became the subject of an interview conducted by Chief Superintendent Benson with the applicant on 1 September 2006. The matters discussed in that interview gave rise to the commencement of a process that ultimately led to the issue of the 181D notice and the removal of the applicant from the New South Wales Police Force. 31 Before considering the substance of what occurred at the interview, I should first cover some of the incidents that were the subject of the interview by reference to the evidence given about them in these proceedings. 32 Chief Superintendent Benson said that, with respect to the performance of the Magic Jester at the opening of a local child care centre in Goulbourn on 6 May 2006, the applicant had reported on sick leave with back pain the prior day and again reported for sick leave the following Monday 8 May 2006, suffering from cold and flu. He was concerned how the applicant could have performed in circumstances where he had been off work the previous Friday and the following Monday. In his evidence, the applicant said that he recalled waking up on 5 May 2006 feeling pain in the thoracic region of his back and could not attend work. He stayed in bed for most of the morning and went to his local doctor to obtain a medical certificate. He said that around lunchtime that day, he rang the child care centre and said that he might not be able to perform because of back pain but that he would reassess the situation the following morning. When he awoke on 6 May 2006, he noticed that the pain had subsided considerably and decided to perform. This did not involve him in engaging in any strenuous physical activity. He then said that on 7 May 2006, at about 4pm, he began to experience cold and flu like symptoms. He felt unwell when he awoke on 8 May 2006 and telephoned the police station to advise that he was ill. He conceded, however, that he had performed at the event. 33 In July 2006, Chief Superintendent Benson was advised by another officer that he had seen an advertisement for a Magic Jester performance at Ingleburn Library on 11 July 2006. He confirmed that the applicant had performed that day and had used annual leave for that purpose. 34 Chief Superintendent Benson became aware in August of an advertisement in the Mittagong Public School newsletter to the effect that the Magic Jester was scheduled to perform at the Bowral Public School Billycart Derby and Market Day on 26 August to which I have earlier referred. He confirmed with the school that the Magic Jester was booked to perform for a fee of $300. Around midday on 25 August, Chief Superintendent Benson contacted the applicant by telephone because he was not at work that day. Shortly after the phone call, he made a file note about the conversation. The file note records that the applicant was asked whether he was to perform at a show at Mittagong and denied this. The applicant said that he had been off work that week with his back and "some complications from surgery. If I was feeling better I was going to go there and just walk around with the kids." The applicant was told that the revocation of his secondary employment authority precluded either paid or charity work and he was reminded of the acknowledgement that he had signed in June. About an hour later, the applicant left a message for Chief Superintendent Benson to call him, which he did. The applicant wanted to confirm that it was Chief Superintendent Benson who had had the original conversation with him and to find out whether someone was "playing a joke on me". 35 Subsequently Chief Superintendent Benson was informed that the Magic Jester had performed on 26 August and that he had been paid $300 for doing so. He was told that the applicant's routine "consisted basically of two performances of magic going wrong and walkabouts through the crowd doing balloon sculpture and small tricks." The applicant's interview with Chief Superintendent Benson 36 The interview, which was conducted by Chief Superintendent Benson with the applicant on 1 September 2006, was typed up by Detective Inspector Hanson. A copy of the transcript is evidence in the proceedings. Whilst the applicant disputed that some parts of the transcript were accurate, I am satisfied that, in general terms, it reproduces accurately what occurred. I shall refer only to those parts of it that I consider relevant for the purpose of these reasons for decision. 37 The applicant was referred to the emails from Joanne Whittaker in March and April 2006 asking him to reapply for secondary employment authorisation. The applicant said that he ignored them because he thought that she was still attached to the Police Academy and therefore had nothing to do with the Goulbourn Local Area Command. I should interpolate here that, whether or not the applicant thought that Ms Whittaker was addressing secondary employment authorisation from the point of view of the Police Academy, the notification should have triggered the need in the applicant's mind to renew the authorisation, which was due to expire in April. I do not believe that he could have been unaware of the need to seek further authorisation. 38 Whatever the situation with the emails, the applicant agreed that he received the letter revoking his secondary employment on 18 April 2006. 39 The applicant was then asked what other work he had undertaken after 18 April 2006. He mentioned the performance on 26 August. He replied that he was not aware of anything and "I can't imagine that I would be that stupid." When reminded about the performance in May at the child care centre in Goulbourn, the applicant said that he then remembered the performance. He said that he was in pain at the time and that he did "a short show because I wasn't well …." His explanation as to why he had performed in defiance of the revocation of his secondary employment authorisation was that he had been "stupid" to do it "knowing full well that everyone in Goulbourn would know." 40 When asked why he had performed on 26 August 2006, the applicant responded that he was "desperate for the money". 41 The applicant was then reminded of the performance that he had undertaken on 11 July 2006 at the Ingleburn Library. 42 The applicant then conceded that he had undertaken secondary employment in breach of the direction given to him, that he had done so consciously and that the reason was "out of necessity". 43 When reminded about the conversation that Chief Superintendent Benson had had with the applicant on 25 August 2006, the previous Friday, the applicant said that he was asleep at the time that he received the telephone call and had taken some painkillers and Valium. He thought that he had dreamt of the conversation which is why he initiated a telephone call to Chief Superintendent Benson shortly after. 44 Furthermore, Chief Superintendent Benson reminded the applicant that during the course of the conversation on 25 August, the applicant had said that the performance was to be a charity one and he failed to disclose that he had been paid $300 for the three hours work. 45 Chief Superintendent Benson informed the applicant that his main concern related to the fact that the applicant had lied to him about a number of matters rather than the physical work that the applicant had carried out in performing as a magician. 46 During the course of the interview, Chief Superintendent Benson also suggested that the applicant's sick leave record had worsened rather than improved since the beginning of the year. 47 In his response document of 10 September 2007, the applicant complained about the decision of Chief Superintendent Benson to revoke his secondary employment authorisation. He thought that this was unfair and that the secondary employment did not impact in any way on his ability to carry out his duties as a police officer. Furthermore, he said that his "personal circumstances" required him to continue to carry out secondary employment. He pointed to his limited income whilst on restricted duties, that his wife was in ill health and could not work and that he then had four daughters under the age of ten years. Furthermore, he said, "I also have to deal with constant daily pain and to take medication regularly. Psychologically I have been trying to deal with the issues that are a direct result of me being hurt on duty. If I am removed from the Police Force I will not (be) able to gain employment in most occupations and my career prospects are extremely dim. My injury means I cannot sit for any length of time. If I am removed from the Police Force, I will become unemployed and unemployable." 48 The applicant also said: "At the time I believed that I was doing what was best for my family, and I deeply regret that that involved disobeying a direction, albeit one that I believe was unfair and unwarranted. To put it bluntly, I admit that I worked secondary employment without approval and I admit that I was evasive with some of my answers when I was interviewed, but I did that through fear, not through an attempt to be deceitful." 49 The applicant accepted that some punishment should be visited upon him for what had been done but asked that he not be removed from the police force. The applicant modified his stance for the purpose of these proceedings indicating that he sought reinstatement in the police force to enable him to make an application for discharge on medical grounds, which would potentially entitle him to receipt of a pension. 50 In the course of cross-examination, the applicant readily conceded that he had disobeyed a directive given to him by Chief Superintendent Benson regarding the performance in August 2006. He also conceded that, in the course of his telephone conversation with Chief Superintendent Benson, he had been evasive because he was intending to undertake the performance and did not want Chief Superintendent Benson to be aware of that. He conceded that he was knowingly breaching the New South Wales Police procedures when undertaking secondary employment. The evidence of Chief Superintendent Benson and sick leave 51 Chief Superintendent Benson gave evidence in the proceedings. He said that he looked up the applicant's record on the internal police system when the applicant was transferred to his command so as to acquaint himself with background information about the applicant. He saw the adverse finding that had been made concerning the applicant's unauthorised secondary employment whilst at the Police Academy. It was the evidence of Chief Superintendent Benson that notwithstanding this he wanted to give the applicant a fresh start. Furthermore, Chief Superintendent Benson was adamant in his evidence, and I accept his evidence in this regard, that the sole reason why he declined to renew the applicant's secondary employment authorisation was because of his perception concerning the applicant's sick leave record. 52 Although a record of the applicant's sick leave absences in tabular form became evidence in the proceedings, this was not available to Chief Superintendent Benson at the time that he made his assessment. That was based on his perusal of daily rosters that indicated to him that the applicant had an extensive record of sick leave absences. 53 It followed that when Chief Superintendent Benson granted initial approval for secondary employment for the applicant and he referred to the fact that increased sick leave absences would lead to withdrawal of the approval, he must have been intending to compare the applicant's sick leave record whilst at the Goulbourn LAC with his record whilst at the Police Academy. This is because at the time that Chief Superintendent Benson made the decision to impose the sick leave record as a condition of granting secondary employment authorisation, the applicant had only recently been transferred to Goulbourn LAC. 54 However, Chief Superintendent Benson, when assessing the applicant's sick leave record for the purpose of determining to revoke the secondary employment authorisation, did not undertake any statistical analysis of the applicant's sick leave record. In fact, Chief Superintendent Benson used what he considered a standard for sick leave in assessing the applicant's record. He said: "The basic benchmark that I used was the New South Wales Police policy bench mark, five sick days in 12 months is an automatic requirement for the officer to be called in to his commander, sat down and discuss the reasons for that sick leave, for that sick report, that includes matters where the officer is hurt on duty. So five days in 12 months is an overall corporate benchmark. I took it to be the number of days that Mr Richards had taken off during this review period to be certainly I guess well in advance of that." 55 The applicant gave evidence about his working pattern whilst at the Goulbourn Local Area Command. He had previously worked a five-day week at the Police Academy. The applicant said that when he came to Goulbourn LAC he initially worked Monday to Friday, six hours a day but that later changed to Monday, Wednesday and Friday, six hours a day. He also took a mixture of sick leave, annual leave and leave whilst being paid worker's compensation benefits during that period. 56 Later, the applicant gave evidence that seems to me to be inconsistent with that which he had previously given about his working pattern. He said that he was working a six-hour shift four days a week in January. 57 The sick leave record in tabular form covers the period January 2006 to August 2006. It indicates that the applicant had considerable periods off work each month by way of sick leave. I set out below a summary of the material contained in the table. January 2006 Hours able to be rostered 124 Annual leave 80 Other leave (sick/WC) 16 Hours remaining 28 February 2006 Hours able to be rostered 100 Annual leave 16 Other leave (sick/WC) 72 Hours remaining 12 March 2006 Hours able to be rostered 118 Annual leave 16 Other leave (sick/WC) 60 Hours remaining 42 April 2006 Hours able to be rostered 78 Annual leave 0 Other leave (sick/WC) 36 Hours remaining 42 May 2006 Hours able to be rostered 108 Annual leave 12 Other leave (sick/WC) 60 Hours remaining 36 June 2006 Hours able to be rostered 102 Annual leave 0 Other leave (sick/WC) 72 Hours remaining 30 July 2006 Hours able to be rostered 102 Annual leave 18 Other leave (sick/WC) 66 Hours remaining 18 August 2006 Hours able to be rostered 78 Annual leave 0 Other leave (sick/WC) 54 Hours remaining 24 58 Notwithstanding Chief Superintendent Benson's concern about the applicant's sick leave record, it is clear from his evidence that he had lost faith in the applicant's integrity as a police officer by May 2006 and that subsequent events only added to his attitude towards the applicant. 59 In making his assessment about the applicant, Chief Superintendent Benson also had regard to the applicant's performance as the Magic Jester in August 2006. That performance had been videoed by New South Wales police. Chief Superintendent Benson said that the applicant performed with a "spring in his step" and moved in a way that was never demonstrated by him whilst at work. Fundamentally, however, it was the fact that the applicant had lied to him that caused the greatest concern for Chief Superintendent Benson about the applicant's integrity as a police officer. In addition, once the applicant had breached the secondary employment policy by performing without authority, Chief Superintendent Benson said that it would be hypocritical to grant any further approval. The evidence of Dr Peter Anderson 60 The applicant tendered in his case a report of Dr Peter Anderson, consultant psychiatrist, of 22 September 2008 and Dr Anderson gave evidence. The report followed an examination conducted on 22 August 2008. In addition to proffering an opinion about whether the applicant was suffering from a psychiatric or psychological condition, Dr Anderson was asked whether that illness might explain, in whole or in part, why the applicant would be evasive with Chief Superintendent Benson during the interview conducted in September 2006. Dr Anderson expressed the opinion in his report that the applicant's diagnosed condition, being a chronic adjustment disorder with depressed mood "does not wholly explain why he would be evasive but his avoidance of the issues … is consistent with what I observed about him being avoidant of issues at interview with myself … I would think that this illness in part explains why he would be evasive with the Superintendent." 61 At the time that Dr Anderson had initially examined the applicant, he was not aware that the applicant had been referred by his local general practitioner to Sue Nielsen, a psychologist practising in Bowral. Dr Anderson was later given a copy of clinical notes made by Ms Nielsen covering 11 sessions that she had had with the applicant during the period 13 June to 23 November 2006. Those notes were the subject of a further report of Dr Anderson of 10 July 2009 and Dr Anderson gave further evidence during the course of adjourned proceedings on 3 August 2009. 62 In his further report, Dr Anderson expressed the opinion that the notes taken by Ms Nielsen "clearly demonstrate that Mr Richards was suffering the symptoms of depression during the period of consultation with Ms Nielsen." He confirmed the diagnosis previously made that the applicant was suffering from "chronic Adjustment Disorder with Depressed Mood" and that this illness "is attributable to the injury received in March 1999 and its sequelae. It has led to difficulties in his dealing with authority, which is not part of his previous character." Dr Anderson confirmed his previous conclusion that the applicant's illness "in part explains why he would be evasive with the Superintendent." Nevertheless, in cross-examination, Dr Anderson conceded that he was still of the same view that the applicant's illness did not wholly explain why he was evasive. 63 Finally, I note that Dr Anderson was of the opinion that the applicant's reluctance to confront situations, which rendered him "less than forthcoming", may possibly continue to exist. 64 The notes taken by Ms Nielsen reveal the "human side" of the applicant's circumstances. He has suffered from continuing pain since the 1999 incident, continued to suffer a physical impairment as a result of his shoulder injury, had had his employment prospects severely curtailed with resultant financial stress in bringing up a young family and was undertaking desk duties which was not the type of work that he envisaged he would be doing when he joined the police force. Furthermore, he expressed to Ms Nielsen concern about what he considered the uncaring manner in which his case was being managed by the police service. He resented having to drive to Goulbourn each day and was disappointed that he had not been given a similar position at Bowral Police Station. He was also resentful of the attitude of the police service in refusing him the ability to perform work as a magician. 65 In terms of his general medical situation, Ms Nielsen said, in her notes: "Shayne is often sick – colds/flu. This is quite often typical of someone with depression – stress leads to low/compromised immune system. Also, often Shayne is in pain and can't face the long drive to and from Goulbourn on top of the working day." 66 I now come to deal with a number of issues that require determination for the purpose of these proceedings. Was there compliance with s 181D(3)? 67 S 181D(3)(a) requires the Commissioner to have given the applicant a notice setting out the grounds on which he did not have confidence in the applicant's suitability to continue as a police officer. 68 The word "grounds" should be contrasted with the word "reasons" used in s 181D(4). "Grounds" when used in ordinary English language refers to a basis for a belief or for knowledge about something. In the context of s 181D(3)(a), the Notice must set out the basis upon which the Commissioner does not have confidence in the officer's suitability to continue as a police officer. In my opinion, without resort to authority, this must require an officer receiving such a Notice to understand the manner in which and the reason why the Commissioner has lost confidence in his or her suitability to continue as a police officer. If this were not the case, then the officer's ability to make written submissions, as contemplated by s 181D(3)(b), must be severely compromised, as would the consideration of those written submissions by the Commissioner contemplated by s 181D(3)(c). 69 I have previously set out, in [4] above, the terms of the notice given to the applicant. 70 By s 181D(3)(b), the Commissioner was compelled to give the applicant at least 21 days within which to make written submissions in relation to the proposal to consider his removal as a police officer. The Commissioner is then compelled by s 181D(3)(c) to "take into consideration" any written submissions so received. 71 The applicant in these proceedings complained that in determining to remove him as a police officer, the Commissioner relied upon a ground and undertook a reasoning process about a matter of which he was unaware because it was not referred to in the notice given under s 181D(3)(a). 72 The Commissioner issued an order removing the applicant under s 181D(1) of the Act on 4 October 2007. By sub-s (4), the Commissioner was required to set out the reasons for his decision to remove the applicant. The order issued by the Commissioner said that the reasons for this decision were annexed. There is a four-page annexure entitled "Statement of Reasons". 73 Apart from introductory material, the Statement of Reasons refers to the "grounds" set out in the original notice given under s 181D(3)(a). 74 The Statement of Reasons then traverses, in almost identical terms, the matters referred to in the s 181D(3)(a) notice, the terms of which I have reproduced in [4] above. The Statement of Reasons then refers to the applicant's written response and a number of matters detailed therein. 75 Furthermore, the Statement of Reasons notes the admission made by the applicant that he was "evasive with some of your answers. You have breached and disregarded the New South Wales Police Code of Conduct and Ethics." 76 There then follows material that refers to the applicant's prior conduct as a police officer. It commences in the following terms: "In addition, and of significant concern to me, is your past pattern of behaviour. I have taken into consideration your complaint history and the resultant sustained findings against you. The sustained findings relate to your conduct, both on and off duty at Goulbourn Police College." There is then a specific reference to the service of a Warning Notice on 15 January 2003 following three adverse findings made against the applicant for inappropriate behaviour and to a Show Cause Notice issued in 2003. 77 The Statement of Reasons continues in the following terms: "In considering your disciplinary history, together with the most recent incident, it would appear that there has been no appreciable improvement in your character which demonstrates an ongoing ability (sic) to act in accordance with the New South Wales Police Code of Conduct and Ethics." 78 The Statement of Reasons continues with more formal material, which I do not need to refer to. 79 The applicant complained that one of the reasons advanced by the Commissioner for his decision to remove the applicant was clearly based upon matters that were not referred to in the notice issued under s 181D(3)(a), either expressly or impliedly. It was submitted on his behalf that the Commissioner had thereby breached the provisions of s 181D and that this tainted the removal process, rendering it harsh, unreasonable and unjust. 80 It is clear to me from my reading of the notice, which I have set out in [4] above, that there is no reference contained within the body of that notice to any conduct other than that which is specifically referred to in the notice itself and which is confined to allegations of unauthorised secondary employment and the fact that the applicant allegedly lied about it. 81 There is, as I have previously stated, some reference to prior conduct whilst the applicant was stationed at the Police Academy in some of the material that is contained within the "submission" referred to as being annexed to the notice. I have previously commented, however, that this material was said only to "augment" the matters raised in the notice. 82 It was submitted on behalf of the Commissioner that the reference in the annexed material to some complaints made concerning the applicant's time at the Police Academy would have been sufficient to alert the applicant to the fact that these matters constituted "grounds" on which the Commissioner did not have confidence in the applicant's suitability to continue as a police officer. 83 In my opinion, the approach contended for by the Commissioner is untenable. If the annexed material was intended in some way to be construed as providing "grounds" then there should have been a sufficiently specific reference to it. If this were so intended by the Commissioner, then the final paragraph of the notice given by him to the applicant is, in my opinion, misleading. That final paragraph refers to the submission as augmenting the matters raised in the notice. "Augment" as defined in the Macquarie Dictionary means: "to make larger; enlarge in size or extent; increase." In this sense, the submission document and its contents are represented to the applicant as expanding upon the matters contained within the notice. This representation is clearly confined to the "matters raised in the Notice". It cannot, in my opinion, be suggested that the applicant is being alerted to any matters that are not contained within the notice and that are of a different kind. There is no hint within the matters raised in the notice of any reference to any prior misconduct. Accordingly, I conclude that the grounds contained within the s 181D(3)(a) notice do not refer to any prior misconduct, the applicant was not required to respond in any way about any prior misconduct, and the reasons which motivated the Commissioner to determine to remove the applicant from the New South Wales Police Force clearly included a reference to prior misconduct. 84 It is well established by authority at Full Bench level of this Commission that s 181D is intended to create a process which should be undertaken by the Commissioner whilst considering whether to remove a police officer from the force on the basis of lack of confidence in his or her suitability to continue as a police officer having regard to matters of confidence, integrity, performance or conduct. It is also well established that this Commission, in considering a review of any order made under s 181D under s 181E of the Act, should, in appropriate circumstances, examine the processes undertaken by the Commissioner. That the examination of process is a matter which, in appropriate circumstances, must be undertaken was referred to by a Full Bench of this Commission in Little v Commissioner of Police (No 2) [2002] NSWIRComm 52. The Bench (Wright J President, Walton J Vice-President and Boland J) said at [75]: "75 These latter considerations then lead to a consideration of the second major aspect of the appellant's case, namely, whether his Honour was in error in concluding that, where the substance of the allegations made against a police officer were satisfied, it was unnecessary to embark on any examination of process. In substance, his Honour suggested that, in such circumstances, a procedural failure could not suffice to justify any interference with the ultimate sanction. Thus stated, we cannot agree with the conclusion reached by his Honour. The legislature has, no doubt cognisant of the significant powers conferred on the Police Commissioner under Pt 9 of the Police Service Act , laid down various procedural stipulations associated with the removal of a police officer which, in our view, require, if not strict compliance then at least 'a careful and punctilious regard to correct procedure', and are of significant importance to the review of a decision made under s181D of the Police Service Act . In this respect, we consider that the correct approach to issues of this kind is synthesised in Van Huisstede as follows at [193] to [200]: '193 In my view, the concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner. Although the removal of a police officer is based upon the confidence of the Commissioner, in my view, the discretion of the Commissioner must be exercised in accordance with the principles (earlier identified in this decision) which were discussed in both Bigg (No. 2) and Oswald (No. 2) . This conclusion flows from statements of the Full Bench in Newton (No. 2) at 79 - 80 with which I respectfully agree: "it may be said that the statutory scheme established by the Police Service Act does not leave open the possibility that the Commissioner of Police will be free to act ill advisedly, or capriciously, in relation to the exercise of the obligation imposed on him by s181D(4) by failing to give a dismissed police officer proper reasons for the decision to dismiss. This necessarily follows because the discretion given to the Commissioner of Police by s181D(1) to remove a police officer from the Police Service must be exercised in the way discussed by the Full Bench of the Commission in Bigg (No 2) (at 457), namely, in the manner discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189, as follows: 'a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ….' That approach applies to the whole of the exercise of the discretion given by s181D, including the obligation under s181D(4) in relation to the giving of reasons." 194 What may be further deduced from the decisions in Bigg (No. 2) and Oswald (No. 2) is as follows. In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act. The Commissioner is not relevantly at large in the exercise of his discretion . Following the principles stated by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd , the discretion conferred by statute is intended to be exercised according to rules of reason and justice, not according to private opinion. The discretion must be exercised according to law and within the limits with which an honest man, competent to discharge the duties of his office ought to confine himself. The Commission should, according to the approach in Bigg (No.2) and Oswald (No. 2) , also assess whether the Commissioner had considered all the information and materials available both in favour and against the officer, as well as the process adopted by the Commissioner in ascribing weight to particular facts or materials. It is open to the Commission to consider whether the decision of the Commissioner was "uninformed" ( Oswald (No. 2) at 66) in the sense that it was not based upon a consideration of all the evidence or the conclusions drawn were not reasonably open to the Commissioner. 195 As was said by the Full Bench in Bigg (No. 2) , the Commission should consider, to the extent relevant in a matter, both the procedure employed by the Commissioner in seeking to remove the police officer as well as the merits or substance of the decision. 196 In the first place, the fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 389, the Full Bench stated: "We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust." 197 Further, the Full Bench stated (at 390): "While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust." 198 These comments were supported in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50. 199 Whilst the Commission is required to consider the entire circumstances of each case (see the decision of the Full Bench in Newton (No. 2) at 79) and it will not be every failure to adhere to the procedures specified by the Act which will require the Commission's intervention (see Bigg (No. 2) at 460), a failure by the Commissioner to exercise his power in a manner consistent with that discussed in Bigg (No. 2) and Oswald (No. 2) or, more specifically, with the requirements of s181D(3) is a matter of significant gravity which may well constitute, in an appropriate case, the basis for a determination that the dismissal was harsh, unreasonable or unjust. As was observed by the Full Bench in Bigg (No. 2) (in relation to the former legislative scheme) (at 458): " However, it seems to us that where extraordinary powers and authorities such as those given by s 181B are being exercised, a careful and punctilious regard to correct procedure should supervise the exercise of discretion ." 200 I consider that these observations are equally applicable to the exercise of the Commissioner's discretion under s181D of the Act.' (Emphasis added)" (Citation of authorities has been omitted.) 85 The procedures adopted by the Commissioner in the circumstances of the applicant did not allow him an opportunity of responding to all of the grounds and reasons which the Commissioner relied upon in determining to remove him from the police force. This is, in my opinion, a fundamental breach of the process established by s 181D. That process reflects the fundamental rules of natural justice that allow, in appropriate circumstances, for a person accused of misconduct to be given an opportunity of responding to the accusations made against him or her. There has thus been a failure to proceed "in a procedurally fair way" and a failure "to afford procedural fairness" of the kind referred to in Little (No 2) in the extract of the judgment which I have previously set out. 86 In these circumstances I conclude that the order for the applicant's removal was unreasonable and unjust. Change in Commissioner 87 The original notice given to the applicant under s 181D(3)(a) was issued by the then Commissioner, Commissioner K E Moroney. The order for removal was issued by the current Commissioner, Commissioner A P Scipione, APM. It was submitted on behalf of the applicant that Commissioner Scipione did not have the power or authority to issue the order for removal because he had not given the original notice. The applicant submitted that, upon a proper construction of the Police Act, "the office of Commissioner of Police is personal to the officeholder and becomes vacant if, inter alia, the Commissioner retires." It was asserted that "the person occupying the office of Commissioner may only remove a police officer pursuant to s 181D(1) if he personally undertakes each of the steps mandated in s 181D(3)." 88 Counsel for the Commissioner referred me to the provisions of s 48(2) of the Interpretation Act 1987, which is in the following terms: 48 Exercise of statutory functions (2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned. 89 The Interpretation Act applies to the Police Act (See s 5). 90 It is clear that the relevant provisions of the Police Act, when referring to the Commissioner, make reference to the person holding that office from time to time. Accordingly, I reject this submission. "Take into consideration" the applicant's written submissions. 91 S 181D(3)(c) requires the Commissioner to take into consideration the written submissions received from the applicant. 92 Evidence made available for the purpose of these proceedings was to the effect that the Commissioner determined to remove the applicant from the police force at a meeting that he conducted with Superintendent Karen McCarthy between 3pm and 4pm on 20 September 2007. At that meeting, he considered not only the circumstances pertaining to the applicant but also to two other police officers. 93 The evidence disclosed that, with respect to the circumstances of the applicant and the two other police officers considered by Commissioner Scipione during this one-hour period, in each case the original notice had been issued by Commissioner Moroney prior to his retirement. It was suggested, therefore, that Commissioner Scipione would not have been familiar with the circumstances of any of these officers because he would not have had to review any material about them when determining to issue the original notices under s 181D(3)(a). The evidence was that the written material for one of the officers comprised about 41 pages and for the other about 71 pages. Material concerning the applicant was about 300 pages in length, although much of this is repetitive and some of the material could easily be skimmed. 94 There is no evidence as to how much of the one hour period was devoted by the Commissioner to the circumstances of each of the three officers. It was submitted that, in all the circumstances, the Commission could not be satisfied that the Commissioner had taken into consideration the written submissions received from the applicant before determining to remove him. It was suggested that it would have been impossible to take those written submissions into consideration without having also read the original notice and the submission documents which were referred to in it. 95 The requirement that is set out in s 181D(3)(c) is expressed in mandatory terms. Furthermore, the reference to taking something "into consideration" requires, in my opinion, that the contents of the submissions be at the least taken into account before the respondent makes any order under s 181D(1). 96 The provisions of s 181D(3)(c) were considered by Boland J (as his Honour then was) in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161. At [141], his Honour said: "141 Dealing with the last matter first, s 181D(3)(c) requires that the Commissioner must take into consideration the police officer's written submissions. Mr Docking referred to the judgment in Tickner v Chapman (1995) 57 FCR 451 where the Full Court ( Black CJ, Burchett and Kiefel JJ) considered a provision in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that required the Minister to consider a report and any attached representations. Of this requirement, Burchett J stated at 476-477: 'What is it to "consider" material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf. Jeffs v. New Zealand Dairy Production and Marketing Board (1967) 1 AC 551 at 568-569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to "consider" a report, Laskin J, speaking for the Supreme Court of Canada, said: "Certainly, the board must have the report before it": Walters v Essex County Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 30-31 conceded that the Minister, in the circumstances of that case, was not obliged "to read for himself all the relevant papers", and that it "would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department", he also made it plain that the summary must "bring to his attention" all material facts "which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial". That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority. In Minister for Aboriginal Affairs v Peko-Wallsend Limited, Mason J (at 44-45) reasoned from an obligation, implicit in the subject-matter scope and purpose of an Act, to take account of detriment to individuals, that the Minister's "consideration of that factor must be based on the most recent and accurate information that the Minister has at hand". He then said that this conclusion was "all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy." And he went on to refer to specific provision made by the statute to ensure that the views of affected persons should be brought to the Minister's attention. Similarly here, the Act provides a mechanism by which the representations must go before the Minister himself. Not by implication, but expressly, it requires the Minister to consider those representations. As in the case Mason J was considering, the decision in question is one which may adversely affect interests and legitimate expectations - indeed it may do so even more directly - and the inference that the representations cannot be left out of account, to be replaced by an assistant's vague evaluation of the extent to which appropriate conclusions about them are contained in a report, is at least equally compelling.' If what I have written seems to impose a heavy burden on the Minister, it is necessary to emphasise that Parliament imposed this burden. Doubtless it did so because of the very great power to override the major interests and rights of citizens, and also governmental agencies, which is involved. Such an authority was not to be conferred on a public servant or ministerial assistant. It is a vast power, which Parliament plainly intended to be exercised at the highest level, with the restraint that great responsibility imposes. That indeed restraint was very much part of the legislative intention is made clear by ss. 7 and 13. The special nature of the power, and the severe consequences of its application, also suggest that its exercise would not have been seen as a common or ordinary task …." 97 The observations by his Honour and the authorities extracted by him complement the definition of "consider" as contained within the Oxford English Dictionary online definition, namely: "to look at closely, examine, contemplate …." Accordingly, in order to comply with the statutory requirement imposed by s 181D(3), the Commissioner was required to not only have regard to the response made by the applicant, but also to look at that material closely, to examine it and to reflect on what was said by the applicant, which must, of necessity, have referred him back to the grounds contained in the original notice and the supporting documentation. 98 It was common ground between the parties, and well accepted within decided cases, that the power under s 181D must be exercised by the Commissioner personally. I have no information or evidence as to the ability of Commissioner Scipione to read, absorb and consider material, and the speed with which he is able to accomplish these matters. Nevertheless, there must be considerable doubt, in my opinion, as to the ability of the Commissioner to have considered all of the material in the manner required of him, to which I have just referred. Having regard to all of the material that was before the Commissioner during that one-hour period, all of which was in evidence before me in these proceedings, I am satisfied, as asserted by the applicant, that the Commissioner could not have considered the matters contained within the applicant's submission in conjunction with his own submission documents in the manner required of him by s 181D(3). For this reason, I find the applicant's removal to be unjust. Production of source documents 99 The applicant had sought production by the Commissioner for the purpose of these proceedings of all of the source documents upon which those who assisted him in formulating the notice under s 181D(3)(a). The Commissioner declined to produce these documents. The applicant submitted that this denied him the opportunity of considering the validity of the grounds formulated by the former Commissioner when determining to issue the original notice. 100 Having regard to the nature of those grounds, as disclosed in such documentation as has been made available, I reject this submission. There may be occasions where such source documents might call into question the validity of the grounds relied upon by the Commissioner in issuing a notice under s 181D(3)(a), but given the factual circumstances of these proceedings, I can see no justification for determining that the refusal to produce source documents could possibly lead to a line of enquiry which might otherwise invalidate or call into question the nature of the grounds contained within the notice. S 181F(3) 101 In determining these proceedings, I must have regard to the matters set out in this sub-section, the provisions of which have been earlier extracted. Prima facie, provisions of the sub-section are framed by reference to a decision which is made based on what I shall refer to in general terms as the "merits" of the case, namely an examination of the police officer's competence, integrity, performance or conduct. As is obvious, the determination that I have made is not based on any consideration of the applicant's competence, integrity, performance or conduct. It is based solely on those failures by the Commissioner, which I have identified, to comply with the statutory regime and procedures created by s 181D. For reasons that I have given, I regard those failures to be of such a kind that, in all the circumstances, they justify findings that the applicant's removal was unreasonable and unjust. 102 To the extent that s 181F(3) is required to be taken into account in the circumstances of these proceedings, I observe that it is in the public interest that a statutory office holder complies substantially with the provisions of a statutory regime, particularly in circumstances where the future employment of a police officer is in question. It would not be appropriate, in my opinion, to adopt an approach that, notwithstanding the failure to comply with the statutory regime which I have described, this Commission should nevertheless proceed to determine the matter on the basis of such evidence as is available concerning the applicant's competence, integrity, performance or conduct. One obvious reason is that the process itself having failed in the manner in which I have described, the applicant has been denied the opportunity of making such representations to the Commissioner that he might otherwise have made concerning his prior misconduct at the Police Academy and has been denied the opportunity of having his written submissions taken into account in the manner prescribed. I refer also in general terms to the significance of the regime established by s 181D as described by Boland J in Hosemans (No 3) extracted at [96] above. The appropriate relief 103 The relief that is available in these proceedings is that which is provided for in Part 6 (Unfair Dismissals) Chapter 2 of the Industrial Relations Act 1996 ("the IR Act"). This is provided for in s 181G of the Act. Relevantly, s 89 of the IR Act is in the following terms: 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. (4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. (6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment. (7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. (8) An order under this section may be made on such terms and conditions as the Commission determines. 104 There is a general discussion of the appropriate relief available and the manner in which the relevant provisions should be applied in the judgment of the Full Bench of this Commission in Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288. At [105] and [106], the Full Bench said: "105 It is trite law that reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. 106 In Plummer v Stannard Bros Launch Service (2005) 145 IR 111 the Full Bench stated the position as (at 115): 'Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453.'" 105 In determining what is the appropriate relief, I need to take into account the applicant's conduct as revealed in the evidence. I have previously set out in summary form that evidence. 106 The totality of the evidence is to the effect that the applicant continued to pursue secondary employment knowing that it was unauthorised. So much was readily conceded by the applicant. Furthermore, and more significantly, the applicant lied about whether he had undertaken that employment. So much also was conceded by the applicant. 107 On one view, the applicant's circumstances may attract some sympathy. He suffered, and continues to suffer, from the effects of injuries sustained in the course of his work as a police officer. His income had been reduced by reason of his inability to work overtime and to attract other penalty payments because of his restricted duties. He has a wife who, at least at one stage, was ill and young children to support. Prima facie, the work which he performed as the Magic Jester was benign in the sense that it did not impact in any way on the applicant's status as a police officer, as was readily conceded by Chief Superintendent Benson. Furthermore, it is not uncommon for police officers to work in secondary employment provided, of course, that it has been approved. Indeed, Chief Superintendent Benson said that he himself undertook secondary employment. The applicant professed, in the course of his evidence, not to have taken undue sick leave because his inability to work resulted from his hurt on duty injuries. He justified his breach of police procedures and the untruthful statements that he gave to Chief Superintendent Benson on the basis that the refusal to authorise secondary employment was unreasonable and he needed the income to assist in supporting his family. 108 I do not know whether the applicant's sick leave entitlement was excessive in all the circumstances. I proceed on the basis that I am not persuaded that it was excessive and it can be ignored in determining the outcome of these proceedings. I can also proceed on the basis that any misconduct undertaken by the applicant whilst at the Police Academy can be ignored. 109 However, the fact remains that the applicant knowingly breached the prohibition on unauthorised secondary employment and lied about it. These are matters which must and do impact in a substantial way on the applicant's integrity both personally and as a member of the New South Wales Police Force. 110 Whilst in some cases it might be said that "the ends justify the means", this is not something that, in my opinion, should apply in the circumstances of the New South Wales Police Force where the integrity of each and every police officer is a matter of significance in the public interest. Otherwise, police officers may be tempted to engage in inappropriate conduct, for example, directed to saving community resources. In my opinion, any sympathy for the applicant's personal circumstances must be counterbalanced by the fact that he engaged in conduct that goes to the heart of what is expected of any member of the New South Wales Police Force by way of conduct, especially that which impacts upon the integrity of the individual officer and the integrity of the police force as a whole. 111 I refer to the many observations about the significance of questions of integrity by Full Benches of this Commission. See, by way of example, Toshack v Commissioner of Police [2009] NSWIRComm 31 at [43] and following. The conduct of the applicant which I have identified, namely deliberately and knowingly breaching the unauthorised secondary employment policies and lying about the work that he had performed, are matters that clearly go to the integrity of the applicant. They are matters that, in my opinion, are serious and must cast grave doubt about the suitability of the applicant to remain a member of the New South Wales Police Force. 112 In applying the provisions of s 89 of the IR Act, I am required to determine whether it would be "impracticable" to reinstate the applicant. 113 There can be no doubt that, in considering the impracticability of reinstatement of employment, it is appropriate to take into account matters that go to an applicant's integrity and any other matters concerning the applicant's character that might impact upon the employment relationship. 114 These are matters that were referred to by the Full Bench in Budlong, previously cited. At [107] to [110], the Full Bench said: "107 The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of re-employment. At paragraph [91] the Full Bench stated: '91 It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342).' 108 The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say: 'Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act. If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.' 109 This approach was also accepted in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282. 110 As to the approach to be taken in assessing the practicability of reinstatement, the comments of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50 are relevant: 'In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: "This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody."'" 115 The relevance of an examination of the integrity of an applicant in considering whether it was impracticable to reinstate him in employment within the New South Wales Police Force was considered by a Full Bench of this Commission in Johnston v Commissioner of Police [2007] NSWIRComm 293. At [41] to [44], the Full Bench said: "41 There is a significant overlap between the matters that might be relevant to the public interest under s 181F(3) (which, as we have noted, includes the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D(1)), and whether reinstatement of a police officer is practicable. For instance, conduct that calls into question an applicant's credibility and exposes him to attack at any time during which he may be required to give evidence under oath in court, is clearly relevant to whether reinstatement is practicable. It is equally relevant to a consideration regarding the maintenance of the integrity of the Police Force. 42 A further illustration of the overlap is undertakings proffered by a person seeking reinstatement as a police officer, as a condition of his or her reinstatement. In Commissioner of Police v Dobbie (2006) 157 IR 44 the Full Bench considered proffered undertakings by an appellant that he would no longer consume alcohol. The Full Bench stated at [34]: 'It was then a matter for his Honour, in all the circumstances of the case and having regard to the requirements of s 181F, to consider the implications of the undertaking for the making of a determination as to whether the removal of Mr Dobbie was harsh, unreasonable or unjust. The giving of an undertaking was, as was correctly submitted by Mr Docking, a relevant consideration for the Commission in making a determination as to whether the removal of the police officer was harsh, unjust or unreasonable. It was also a consideration that may have been taken into account in evaluating mitigating factors that may have explained (but not justified) the respondent driving under the influence of alcohol.' 43 Further, whether an applicant was suffering from a depressive illness at the time he or she engaged in conduct that attracted a removal order and whether he or she has recovered may be relevant to whether the dismissal was harsh, unreasonable or unjust and to whether reinstatement is practicable. 44 The form and content of proffered undertakings may also be relevant considerations in determining whether, having regard to other considerations as well, reinstatement is practicable." 116 The difficulty that I face in determining this matter is that on the one hand I have grave concerns about whether the lack of integrity demonstrated by the applicant, as I have described it earlier in these reasons for decision, and on the other hand I have no relevant evidence about the circumstances which attend the applicant's current part-time duties, which have been described in evidence as a "desk job". If that part-time position allowed the applicant to access information and other sensitive material that was accessible by any officer of the New South Wales Police Force, or otherwise might involve the applicant in any operational matters that, for example, would require him to give evidence in court proceedings, then it is arguable that it would not be practicable to reinstate the applicant to that position. In those circumstances, it might be necessary to enquire as to whether or not the respondent has available any other position for the applicant in which it would not be impracticable to reemploy the applicant. Finally, questions of impracticability and reemployment may also be relevant in determining whether it might be appropriate to order the payment of compensation, as provided for in s 89(5) of the IR Act. Indeed, the respondent's submissions canvassed whether the payment of compensation might be an appropriate alternative in all the circumstances. Any consideration of such an order is, in my opinion, premature because I do not regard myself as being in a position to determine matters involving impracticability of reinstatement or matters going to reemployment. 117 I observe, also, that in determining to make any orders contemplated within s 89 of IR Act, it may be appropriate to take into account the applicant's professed desire, as indicated in the proceedings, to immediately apply for a medical discharge if reinstatement were ordered. Whether and to what extent the applicant might be prepared to furnish certain undertakings in that regard, which might be satisfactory to the Commissioner or to this Commission, is unknown. 118 Because I am not satisfied that I have any or any sufficient evidence that would enable me to consider in an appropriate manner the relief that should be afforded to the applicant, I propose to stand the proceedings over to allow the parties to undertake some discussions and relist them for the purpose of either making submissions or the taking of any appropriate evidence which would assist me in finalising the proceedings. 119 The proceedings are stood over with liberty to apply. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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