Industrial Relations Commission of New South Wales CITATION: Wayne Edward Collins and Commissioner of Police [2008] NSWIRComm 30 Applicant: PARTIES: Wayne Edward Collins Respondent: Commissioner of Police FILE NUMBER(S): IRC484 of 2007 CORAM: Kavanagh J CATCHWORDS: Removal of police officer - s181D Order - off-duty incident - serious misconduct - conviction for serious offence - culture of binge drinking - alcohol counselling - further charges dismissed - conduct can be sole ground for dismissal - subjective factors placed before the Commissioner - competence and performance not considered - error - applicant and public interest considered - re-instatement ordered LEGISLATION CITED: Police Act 1990 Industrial Relations Act 1996 Bankstown City Council v Paris (1999) 93 IR 209 Hosemans v Commissioner of Police (2004) 138 IR 159 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98 Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 CASES CITED: Commissioner of Police v Dobbie [2006] NSWIRComm 285 Dobbie v New South Wales Police [2006] NSWIRComm 12 Hugh Gerrard Brennan v Commissioner of Police [2007] NSWIRComm 229 Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 Rose v Telstra Corp Ltd (unreported, AIRC, PQ9292, 4 December 1998) Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Van Huisstede v Commissioner of Police (2000) 98 IR 57 HEARING DATES: 20/09/07 DATE OF JUDGMENT: 14 March 2008 Applicant: Mr E.L. Oates, Solicitor Oates & Smith LEGAL REPRESENTATIVES: Respondent: Mr S. B. Benson of counsel Solicitors: Mr M. Dunne/Mr A. Dent Leitch Hasson Dent JUDGMENT: - 37 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Kavanagh J Friday 14 March 2008 Matter No IRC 484 of 2007 WAYNE EDWARD COLLINS AND COMMISSIONER OF POLICE Application by Wayne Edward Collins for review of an order under s181E of the Police Service Act 1990 DECISION [2008] NSWIRComm 30 1 Wayne Edward Collins (the applicant) seeks a Review of an Order made by the Commissioner of Police (the Commissioner) pursuant to s181D(1) of the Police Act 1990 (the Act). That Order removed the applicant from the New South Wales Police Force. 2 The proceedings are governed by Division 1B of Part 9 of the Act. Section 181E of the Act provides a Police Officer may apply to the Industrial Relations Commission of New South Wales (the Commission) for a review of an Order removing a Police Officer from the New South Wales Police Force on the grounds the removal was harsh, unreasonable or unjust. The Legislation 3 By operation of s181G(1) of the Act, the provisions of the Industrial Relations Act 1996 (the IR Act) apply to the application for review, subject to some stated limitations in the same way as those provisions apply to an application brought under Part 6 of Chapter 2 of the IR Act. Relevantly, s181 of the Act states: 181D Commissioner may remove Police Officers (1) The Commissioner may, by order in writing, remove a Police Officer from 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. . . . (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 NSW Police Force. (5) The removal takes effect when the order is made. 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 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 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 NSW Police, and the fact that the Commissioner made the Order pursuant to section 181D (1)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Ac t 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act. 4 Mr E.L. Oates, Solicitor, represented the applicant. The applicant relied upon Agreed Facts; letters dated 27 June 2007, 1, 20 and 27 August 2007 from Messrs Oates & Smith to the Commissioner of Police; an Application for Relief filed 27 April 2007 including annexures: Section 181D Notice dated 18 October 2005, two responses from the applicant dated 8 November 2005 and 19 March 2005; a s181D Order dated 18 April 2007; Schedule of Loss (alternative claim) dated 19 March 2007 and a Statement of Anticipated Evidence. The applicant was cross examined. 5 Mr S.B. Benson, of counsel, represented the NSW Police. He relied upon the Employer's Reply to Application with attachments; the Commissioner's Confidential Submission; copy of extract Gregory's Roadmap showing the Sportsman's Hotel and Quakers Hill Parkway; the NSW Police Code and Ethics dated February 2002 and a transcript of proceedings before Magistrate A. Clarke dated 12 December 2006. Chronology of events 6 The evidence revealed the applicant went to Shalvey Primary School from Kindergarten to Year 6. He attended Blacktown Boys High School through to Year 11 (mid 1996). He then worked for a year and a half as an apprentice electrician. His employer went bankrupt. In 1998, he began another apprenticeship as a motor mechanic. He left that apprenticeship in mid to late 1999. He completed neither apprenticeship. He then worked on a traineeship with IGA as a warehouse employee. He left this job in mid-2001. He held none of these positions for longer than 18 months. 7 In September 2001, he was accepted into the New South Wales Police Academy. When asked what the circumstances were leading to him joining the Police Force he said: There was an open day at the university at Parramatta and I went down there and got some information about it and it went from there. When asked what appealed to him about the NSW Police Force he said: Just the unpredictability of the job, the mateship, the help to the community, the satisfaction of doing good. It just appealed to me. 8 On 20 December 2002, the applicant became a New South Wales Police Officer. The applicant was posted to Burwood Local Area Command. He served between December 2002 to September 2004 in the Burwood Local Command. He received no adverse criticism. 9 On 14 February 2004, the applicant married. 10 In September 2004, the applicant was seconded to the Commuter Crime Unit at Campsie. 11 On 18 December 2004, the applicant and his wife found out they were expecting a child. 12 On 19 December 2004, the applicant with three of his friends, including his brother-in-law, went to the Sportsman's Hotel Blacktown for a celebratory drink. The applicant and three friends drank from 8.30pm until they left the hotel at 2am the next day. The applicant offered to drive his friends home. At approximately 2.45am, the applicant was involved in a motor vehicle accident at the intersection of Quakers Hill Road and Quakers Hill Parkway. The car he was driving overturned and the four occupants inside received minor injuries. A passenger in the car suffered a broken wrist which required surgery. There was extensive construction work on the road along which he drove. Evidence revealed the car left the road as it approached a five-way roundabout. The roadway was poorly lit. The applicant had a blood alcohol reading of 0.153% - a high range reading. 13 After the motor vehicle accident, the applicant was permitted to work his full-time position with the NSW Police Force throughout December 2004 and January 2005 as he was not required to use his driver's licence. He had lost his licence for one year. 14 On 1 February 2005, the applicant was placed on restricted police duties when he returned to Burwood Local Area Command from his secondment at the Commuter Crime Unit at Campsie. 15 On the 27 February 2005, the applicant was charged with Dangerous Driving Occasioning Grievous Bodily Harm (Under the Influence); Driving with High Range Prescribed Concentration of Alcohol and Aggravated Dangerous Driving Occasioning Grievous Bodily Harm. 16 In April 2005, the applicant was suspended from police duties with pay. 17 On 2 May 2005, the applicant pleaded not guilty to the charges laid against him. 18 On 5 June 2006, the applicant was suspended from duty without pay. 19 On 7 August 2005, his son was born. 20 On 18 October 2005, the applicant received a s181D Notice from the Commissioner of Police challenging his suitability for the Police Force. It relevantly read as follows: On 19 December 2004 you were involved in a motor vehicle accident at the intersection of Quakers Road and Quakers Hill Parkway, Quakers Hill whereby you lost control of your vehicle, which overturned and came to rest on its roof in the northbound lane of the intersection. Three (3) occupants of the vehicle, including yourself, sustained minor injuries. A fourth occupant, Mr Timothy Furner, was trapped in the vehicle and required the assistance of emergency services personnel to be removed. All occupants of the vehicle were conveyed to Westmead Hospital for treatment, and as a result of the accident Mr Furner suffered a broken wrist that required surgery. An analysis of the blood sample given by you at Westmead Hospital on 19 December 2004 revealed a blood alcohol reading of 0.153. An investigation into the accident resulted in you being served with a Future Court Attendance Notice for the offences of ' Dangerous Driving Occasioning Grievous Bodily Harm, (Under the Influence)', 'Drive with High Range Prescribed Concentration of Alcohol' and 'Aggravated Dangerous Driving Occasioning Grievous Bodily Harm'. The incident has given rise to my concerns regarding your ability to maintain the highest ethical and professional standards that I expect from a New South Wales Police Officer. You are hereby notified that I am considering making an order for your removal from the New South Wales Police under Section 181D of the Police Act 1990. I note that the matter has been to court on a number of occasions, the most recent being 16 September 2005, for mention only. As the matter is yet to be heart at court, I reserve the right to add further information, additional to the information referring to in this Notice pursuant to Paragraph 181D(3)(a), in support of my decision regarding your suitability as a Police Officer should the need arise. 21 On 8 November 2005, the applicant made written submissions to the Commissioner of Police in response to the s181D Notice and sought deferral of any decision pending determination of his criminal proceedings. His submission read: 1. On 18 October 2005 a Notice was served on me pursuant to the provisions of section 181D(3)(a) of the Police Act 1990 (the "Act"). Pursuant to section 181D(3)(c) I set out hereunder my submissions to yourself as to why I should not be removed from the New South Wales Police. 2. I have an unblemished Police service record apart from the incident which is set out in the Notice. There are no proven police departmental charges recorded against me for any type of misconduct. Procedural Fairness 3. I believe that I may be denied procedural fairness if due consideration is not given to relevant matters, particularly matters going to my conduct, integrity and credit. I believe I am held in very high regard by my Commanders and fellow officers in the New South Wales Police. I would say, perhaps not immodestly that I am a competent, capable and diligent officer. My senior officers would describe me as a "worker". 4. I would also ask that you consider the references that I attach to this submission from members of my family. These are the people that know my true character and I request that you take into account the high esteem in which they hold me. (i) Mr Robert Moylan dated 7 November 2005. (ii) Mr Tony Moylan dated 7 November 2005. (iii) Ms Kathleen Collins dated 7 November 2005 5. I believe that I may also be denied procedural fairness because the matters with which I am charged are still progressing through the Court system. I have consulted my lawyers who are confident that I will be acquitted of the charges that have been preferred. Further unfairness may result if your determination is adverse to me and shortly thereafter I am found "not guilty" of the charges. Similarly, important protections in our criminal justice system are that all citizens of this country are entitled to decline to answer questions which may tend to incriminate them – and that no adverse inference is to be drawn should an election be made to follow that course. As my proceedings are yet to be determined, my lawyers have strongly advised me to follow this course. They have advised me there are good reasons for doing so and I feel that I should accept that advice. 6. I believe that I may further have been denied procedural fairness because I have not been provided with a copy of the following source documents listed within the Commissioner's Confidence Submission: (i) P0500732 Background 7. I was sworn into the New South Wales Police in December 2002 at the age of 21. I am currently a constable and I am stationed at the Burwood Local Area Command on general duties. In September 2004 I was selected to spend six months at the Commuter Crime Unit at Campsie. 8. Other than one speeding ticket at the age of 17, I have not had any previous traffic or criminal charges against me. 9. I am a married man with a very young son who was born in August of this year. I am very committed to my family and would not intentionally do anything that might jeopardise my ability to provide for them. I am the sole provider for my family and my wife and I are presently saving to buy a home for our family. Motor Vehicle Accident of 19 December 2004 10. The allegation contained in the Notice of alleged criminal conduct on my part is the subject of ongoing criminal proceedings. I have received legal advice that the evidence disclosed does not support the required elements of each of the charges and therefore prosecution may have difficulties proving their case against me. Accordingly I intend to defend each of the charges before the court. 11. I am acutely aware, as no doubt you are sir, of the golden thread of our legal system that no person need incriminate himself or offer an explanation for any allegations. It is for the prosecution to prove one's guilt beyond reasonable doubt. Accordingly, on advice from my solicitors, I do not wish to respond to the particular charges as yet, however, I would ask that you take into account the overwhelming sense of regret and remorse that I feel in relation to the events of 19 December 2004. 12. I request that you defer making any final determination in respect of this matter until after my Court proceedings are resolved. I submit that this would not cause any prejudice to the New South Wales Police. 13. The person who was injured in the accident is a good friend of mine and I continue to feel terrible about the discomfort and inconvenience he has suffered. I have sincerely apologised to him. 14. I am not a regular drinker and I would ask that the Commissioner consider that this is an isolated event where I went out with some friends to celebrate the news that my wife was expecting our first child. I foolishly drank too much alcohol and drove when I should not have done so. 15. I would also ask that the Commissioner take into account that this incident occurred whilst I was off duty and that it has already had serious ramifications for me. The day following the accident I informed my Commander at Burwood of my involvement in the incident. 16. I am still working for the NSW Police but have had my license suspended and accordingly I am no longer able to drive the patrol car and must be accompanied by another officer at all times. 17. The incident has been a huge "wake up" call for me and I consider that I have matured significantly since making this error of judgment and subsequent to becoming a father. 18. Working as a Police Officer has given me a sense of purpose for the first time in my life. Prior to joining the NSW Police I undertook a number of casual jobs and commenced apprenticeships. I completed two years of an electrical engineer apprenticeship but was unable to complete this as the business I worked for went bankrupt. I then spent 18 months doing a motor mechanic apprenticeship prior to joining the NSW Police. 19. However it is only since joining the NSW Police that I have found something that I am passionate about. I cannot imagine doing any other job or receiving anything approaching the satisfaction and fulfilment that I feel working as an officer for the NSW Police. 20. I appreciate that my behaviour was irresponsible on this occasion but I respectfully request that the Commissioner deal with this matter by means other than my dismissal from the NSW Police. 21. I thank you for the opportunity to forward this submission. 22 The Commissioner accepted the submission and agreed no further action would be taken while the charges laid against the applicant were heard by the Court. 23 On 27 March 2006, the applicant pleaded guilty to a lesser charge and was convicted of Dangerous Driving Occasioning Grievous Bodily Harm (Under the Influence). The matter was stood over for penalty. 24 On 4 July 2006, the applicant was sentenced to an 18 month term of imprisonment with a non-parole period of nine months. The sentence was then wholly suspended pursuant to s12 of the Crimes Act 1900 on the condition the applicant be of good behaviour for 18 months. That good behaviour bond is to expire in February 2008. The applicant was automatically disqualified from driving for a period of 12 months. 25 After being stood down from the NSW Police, the applicant gained a position as storeman in a warehouse and has since found a second job as a night stacker at Coles. His earnings since June 2007 (after tax) as a storeman are approximately $750 per week and he earns an extra $200 per week from the night stacking position. He claims a loss of income up until June 2007. 26 On 5 October 2006, after his suspension without pay, but before his removal from NSW Police, the applicant was involved in a fracas between himself and a security guard at Penrith McDonalds. This also occurred in the early hours of the morning. Alcohol was a factor. Arising from this incident, the applicant was charged with two offences - Assault Occasioning Actual Bodily Harm and Assault. The applicant pleaded not guilty to both charges. The Director of Public Prosecutions conducted the prosecution. 27 On 27 October 2006, after he had been charged with assault, the applicant attended the first of three counselling sessions at the Ryde Alcohol Centre. The date of the last counselling session he attended was 16 January 2007. 28 On 12 December 2006, the charges against the applicant were dismissed by a Magistrate at Penrith Local Court. 29 On 27 February 2007, the Commissioner of Police invited the applicant to make supplementary submissions regarding the suspended s181D Notice. There was no mention made relating to the further incident at McDonalds. The applicant gave evidence his Commander knew of that incident. This was not challenged by the respondent. The later incident at McDonalds was not relied upon by the Commissioner in his Statement of Reasons as a ground for the dismissal of the applicant. 30 On 19 March 2007, the applicant submitted a supplementary submission for the Commissioner of Police's consideration given the revival of his s181D Notice after his conviction for the driving offences. It relevantly read: Dear Commissioner Moroney . . . 6. Whilst I have always admitted and accepted that my conduct was inappropriate, because of my legal advice that the "aggravated driving" charge was too severe and could not be sustained, I pleaded not guilty to that charge. There followed correspondence and discussion between the Crown and my legal advisors and as soon as the "aggravated driving" charge was withdrawn I accepted my legal advisors' advice that the lesser charge accorded with my misconduct and entered a plea of guilty. 7. I have never denied my wrongdoing on 19 December 2004 when I foolishly drank too much alcohol and drove when I should not have done so. I had recently found out that my wife was pregnant with our first child and decided to have a celebratory drink with a small group of close friends. Unfortunately I made the incorrect decision to drive to the hotel compounded it by driving home which resulted in the accident. It was a decision made totally out of character and something that I had never done before. In admitting to this error of judgment I take full responsibility for my actions and the ramifications which have followed. I ask that you take into account the extra curial punishment which I have incurred in the financial loss associated with my initial demotion to restricted duties which then progressed to suspension without pay. I am currently working as a storeman with a transport company on a part time basis and my hours of work vary greatly each week. On average, in a week where I am able to work full hours I estimate my weekly loss of earnings to be $100. In a week where I am not able to work full hours, I estimate that loss to be $200 to $300. I attach a schedule of loss setting out my total financial since the accident. 8. I have also had to bear the costs associated with the damage to my vehicle and legal fees. These costs, together with the loss of income I have suffered, has meant I have had to borrow $40,000 from lenders and family in order to meet these financial obligations. Notwithstanding my straitened financial circumstances I have endeavoured to meet my obligations to my family and friends with respect to the loans and have now reduced that debt to $38,000. 9. Words cannot express the regret and remorse that I feel towards those involved in the accident that night and all those who I have disappointed. I have nobody to blame but myself for what happened and I take full responsibility for my actions. Although all involved have assured me they have no ill feelings about the incident, I can not forget what happened and will carry around the guilt for ever. Not only for those in the vehicle but for my wife and unborn son (who is now 1 ½ years) who have been affected probably even more so than I. Finally I know I have let myself down and in doing so breached my obligations to you, my fellow police and the public. 10. My wife, Kate, who was intending to cease work upon the birth of our child and hopefully start a beautician business from home has had to return to work three days per week and place our son in child care. Whist Kate is very supportive of me she is most upset that our plans have been disrupted by my conduct and not only has she had to return to work but she is missing the very important and irreplaceable time she was expecting to spend with our son. It distresses me to have been the cause of her unhappiness and I believe I have disadvantaged my family by my conduct in my child having to be looked after by strangers rather than by his mother. 11. I am very committed to my family and would not intentionally do anything that might jeopardise my ability to provide for them. Prior to the incident, myself and my wife were saving to buy a home for our family however presently, with my increased debt obligations and loss of income, we have had to substantially delay those plans. 12. Due to these hard financial times my marriage has taken a huge blow and our future is currently uncertain. By no means am I trying to cry the victim because I know these issues are the result of a decision I made and actions I took. But the one thing that I have felt extremely strong about over the past two and a half years was the fact that I have let a lot of people down whom I deeply care about and that I need to have the opportunity to make amends. 13. In his judgment on sentence His Honour Judge Marien considered that my actions were at the lower end of the scale in that my conduct was better described as a "momentary reckless error of judgment" as opposed to the more serious conduct of "abandoning responsibility". His Honour also accepted that I was not a regular drinker, that I was a person of excellent character and that I was unlikely to re-offend and accordingly my sentence was wholly suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act . 14. I appreciate that you have a responsibility to ensure that members of the NSW Police are fit and proper persons and that you must protect the public from persons who are not of good character. I admit that my actions on this occasion were misguided and earnestly submit that I continue to be, as I have always been, a fit and proper person to represent the NSW Police. I also submit that I should not be punished any further for an incident which was a momentary reckless error of judgment. 15. Other than one speeding ticket at the age of 17, I have not had any previous traffic or criminal convictions. 16. I have an unblemished Police service record apart from the incident which is set out in the Notice. There are no proven police departmental charges recorded against me for any type of misconduct. 17. In coming to terms with my actions I have sought assistance from the Ryde Drug and Alcohol Centre and have undertaken a number of counselling sessions in order to increase my insight into the hazards associated with binge drinking. Although I have never been a big consumer of alcohol, it was alcohol that was a contributing factor to the accident. As such I have taken it upon myself to attend a drug and alcohol counsellor to educate myself. Through appointments and telephone conferences with Sue Weston from the Ryde Drug and alcohol services, I have identified and believe I have rectified any problems that I had with alcohol. I have taken control of my binge drinking through the guidance of the counselling, and feel that I have put this alcohol related incident behind me. I now know first hand what the repercussions of such foolish actions are and I never wish to experience that again. I attach a report of Ms Sue Weston, drug and alcohol counsellor from the Ryde Drug and Alcohol Centre dated 28 February 2007. 18. I ask that you take into account the overwhelming sense of regret and remorse that I have felt in relation to the events of 19 December 2004 and I attach references from friends and family, including the victim of the motor vehicle accident and my good friend, Tim Furner. I will forever be grateful that Tim suffered no more that a broken wrist. I do not seek to trivialise the injury but am very aware I could have much more seriously damaged my mate: Samantha Collins dated 8 April 2006. Tim Furner dated 15 April 2006. Kathleen Collins dated 25 April 2006. Cheryl Furner undated. Anne Moylan dated 6 April 2006. 19. I do not seek in any way to minimise the import of my conduct, however, I ask you to accept that my error has been reflected in a criminal conviction and the financial hardship associated with my lost earnings and continuing debt obligations. 20. My aims now are to return to the NSW Police, make amends, regain my strong reputation, be part of a team and continue what I started. I had and still have all intentions of retiring in the uniform and would do absolutely anything it takes to do so. I believe I have so much more to offer to the service and the community and with the resources that have been spent training me, I am strongly committed to my obligation to fulfil those expectations. After conversing with my Commander Superintendent Arthur Katsogiannis and supervisor Acting Sergeant Mark Sciflitt, they assure me I have their full support and are willing to be referred to at any stage if necessary. I also have the full support from my peers and team members. I believe that if you were to speak to my Commander and peers you would be told I have been a diligent and honest Police Officer and a "worker". If I have taken anything positive out of this incident it is that I will do everything in my power to make sure the people around me will not make the same mistake. I want to lead by example and become a strong role model for my son and others. For this reason I sincerely hope that I am strongly considered for reinstatement to the New South Wales Police. 21. I respectfully request that you deal with this matter by means other than my removal from the NSW Police and thank you for the opportunity to forward this further submission. (Signed) Wayne Collins 31 On 5 April 2007, the Commissioner considered the applicant's Reply to the Notice and then issued the following Order: Order under s181D(1) of the Police Act 1990 I, Kenneth Edward Moroney, Commissioner of Police, having considered your conduct , do not have confidence in your suitability to continue as a police officer. By this Order, I remove you from the New South Wales Police Force. In reaching my decision, I have carefully considered the matters raised in the submission prepared in relation to you and the Notice served upon you pursuant to section 181D(3)(a) of the Police Act 1990 . I have taken into account the written response from your legal representative. The reasons for my decision are annexed hereto under the heading 'Statement of Reasons'. Your removal takes effect from the date of this Order. . . . 32 The Statement of Reasons for the Order were annexed to the Order and were expressed relevantly in the following terms: Statement of Reasons: . . . The ground set out in my Notice to you refers to the criteria of your conduct and relates to you entering the criminal justice system as a result of a motor vehicle accident. I have given careful consideration to all the material that has been presented to me in this matter and I provide the following reasons for my determination: . . . My Notice to you advised that the incident gave rise to my concerns regarding your ability to maintain the highest ethical and professional standards that I expect of a New South Wales (NSW) Police Officer. At the time you were also advised that I reserved the right to add further information, additional to the information referred to in the Notice, in support of my decision as the matter had not yet been heard at Court. On 8 November 2005 you submitted a Response to the Notice whereby you stated you had legal advice to say the evidence that had been disclosed regarding the offences did not support the required elements of the charges and you felt that the prosecution may have difficulties proving their case against you. You therefore requested that I defer my decision until the matters were resolved at Court and I endorsed this request. However, on 26 May 2006 you entered a plea of guilty and you were convicted of the offence of 'Dangerous Driving Occasioning Grievous Bodily Harm -Under the Influence', ( the offence of 'Drive with High Range Prescribed Concentration of Alcohol' was filed at Court and the offence of 'Dangerous Driving Causing Grievous Bodily Harm' did not proceed). On 4 July 2006 you appeared for sentencing before His Honour Judge MARIEN, at the Downing Centre District Court. You were sentenced to an 18 month term of imprisonment with a non-parole period of nine (9) months, however pursuant to section 12 of the Crimes Sentencing Procedure Act the sentence was ' wholly suspended' and you were ordered to be of good behaviour for the length of the sentence (18 months). You were also disqualified from holding a drivers licence for a period of 12 months commencing February 2005. At the time comment on sentence was sought from the instructing Solicitor for the DPP, Ms Nicole PAUL, who advised that His Honour made mention in sentencing of extra curial punishment being taken into consideration at the time of sentencing. That consideration included your post incident restriction of duties which progressed to suspension, the probability of dismissal (removal) , from the NSW Police and the financial implications as a consequence of the matter. Your culpability was considered on a sliding scale and was found to amount to conduct of a ' momentary reckless error of judgement' . On 26 February 2007 you provided a further written submission in response to the ground set out in my Notice as you were afforded this opportunity to do so, in light of your criminal conviction and subsequent sentence. Collectively, your written submissions in response to my Notice express your deep regret and remorse about the incident. You stated that you are not 'a regular drinker' and that the incident occurred as a result of you celebrating the news that your wife was expecting your first child and that you foolishly drank too much alcohol and drove your motor vehicle when you ought not to have done so. I note that you have since sought assistance from the Ryde Drug & Alcohol Centre due to alcohol being the contributing factor in the accident and I commend you on taking this course of action. However, I am unable to balance your contrition against the seriousness of the offence for which you have been convicted. You are reminded that it is an inherent expectation that all police will act in a professional manner, whether on or off duty, and I find that your actions on 19 December 2004 have brought discredit to the NSW Police Force. I have carefully reviewed all the material associated with this matter and I can see no reason of mitigation that would provide me with a basis not to lose confidence in your suitability to remain a police officer. I therefore exercise my statutory responsibility and make a determination that I do not have confidence in your suitability to remain a member of the New South Wales Police Force. I therefore remove you from your position as a police officer. ( Signed) K.E. Moroney Commissioner of Police Date: 5 April 2007 33 On 5 April 2007, the Commissioner made an order for the applicant's removal from the Police Force. 34 On 27 April 2007, the applicant filed this Application for Review of the Commissioner's Order. Issues 35 The respondent took issue with two matters of fact relied upon by the applicant. They were both presented in the context, as conceded by the applicant, that he had been convicted of a serious offence. The respondent challenged any suggestion the applicant had a genuine intention to redeem himself and argued the alcohol counselling sought by the applicant should be viewed in the context of the hearing of the assault charges. A further challenge was made by the respondent to the proposition advanced by the applicant while he admitted to "binge" drinking in the past he opined that he had no existing problem with alcohol consumption. Reliance also was placed on the evidence revealed in the hearing that the applicant had been charged, though not convicted, of two other assault charges where alcohol was involved. The respondent submitted the further incident was indicative of an unacceptable pattern of off-duty behaviour. The matter of alcohol consumption 36 The evidence regarding the applicant's consumption of alcohol is as follows: after being trained as a police cadet for one year and then working as a probationary constable from December 2002, the applicant agreed he was well aware of the dangers related to the use of alcohol and the danger of driving under the influence. He was also familiar with the NSW Police Code of Conduct and Ethics. He agreed he was aware of the ethical standards required from the men and women of the NSW Police Force and that such standards were applicable to a Police Officer whether on-duty or off-duty. 37 The Police Fact Sheet reveals the circumstance surrounding the motor vehicle accident as follows: At the time this accident occurred, this area of Quakers road was under construction as a result of the 'Orbital' roadworks. The roadway was of poor quality. The street lighting is minimal in this area of roadway. One young man who was with the applicant made the following statement to the Police as to his consumption of alcohol that night: When I have a drink, it is usually beer; Tooheys New or Extra Dry. If I go to a club or something, then sometimes I drink Bourbon and Coke, but mainly its beer. I can usually drink about five, six or seven beers before I start to feel the effects of alcohol, but then again it depends. . . . I had a couple of schooners of New. I don't remember exactly how many. I then had a few bourbons, maybe four (4) or three (3). I was mainly drinking beer. I think that I had more beer than bourbon. . . . I was a little bit drunk. Another said: We were there for a while, having a few drinks, playing darts. . . . We had all had a few drinks. . . . I was pretty drunk. and later: I think that we were there to about 2:00am. I was drinking bourbon, I had about twelve to fifteen bourbon's while I was there. . . . I was pretty pissed by the time we left. All the other boys were drinking as well. I think they were also drinking bourbon. . . . The roadway was shit house, there no lighting and the surface was bumpy, there was holes, everything. Another said: . . . my mate had found out his wife was having a baby so we went out to celebrate. I was there with Wayne, Rob and one of Rob's mates. We were all having a few drinks to celebrate. 38 The applicant said in evidence he had continued drink in a "binge" manner even while suspended and when the second "incident" occurred in October 2006 he finally realised he had to address his alcohol use. He did not admit to continual binge drinking but to occasional binge drinking. As to the counselling sessions, the applicant said: The reason why was I wanted to make sure that that ( sic) incident wasn't going to occur again and that I could get some professional advice as to what I could do to make sure that that didn't happen again. 39 As to the effect of the counselling sessions he also said: Before I didn't see anything I was doing was wrong. As you said, it as the ( sic) culture, and I didn't see what I was actually doing was affecting me in any way, and Sue Weston at the drug and alcohol at Ryde told me that I was doing something wrong and that it isn't normal to drink that much and it isn't normal to have that amount of alcohol at those particular times and to limit your alcohol consumption and to stretch it out and things of that nature and how badly it is affecting your liver and your body and the effects it has on your family, and a lot of things. 40 The respondent cross-examined the applicant suggesting to him the counselling dates were coincidentally close to his court appearance in defending the assault charges and the counselling was for the sole purpose of supporting his defence to the charges: Q. It is the case, is it not, that when you sought counselling from the Ryde Drug and Alcohol Service you were facing the prospect of those criminal proceedings involving alcohol coming to a head within a short time? A. Yes. Q. And is it the case that you were motivated to engage in that counselling because you wished to prepare some evidence on sentence should that be necessary for those proceedings? A. No. Q. And the second hearing date was the 1 November 2006, the second hearing before the Magistrate? A. Yes. Q. That was only a week after the first counselling section with the Ryde Drug and Alcohol Service? A. I believe so, yes. . . . Q. I want to put to you, do you agree that you had a serious binge drinking problem over an extended period of time? A. I did have a binge drinking problem. Q. I want to suggest to you that your perception of that binge drinking problem has been one where you did not see it as a problem? A. Yes, you could say that. Q. And I put to you that you continued to drink alcohol. . . . . Q. Continued to drink alcohol, up to the present time? A. In what terms, do you mean? Q. Drinking beer or spirits? A. Yes, continuing to drink. Q. And I want to suggest to you that the undertaking that you gave in the offer of 30 August 2007 for consideration by the Commissioner of Police was one that you have given simply to increase your chances of being reinstated? A. Absolutely not. 41 The respondent also suggested any undertaking given to the New South Wales Police Force to abstain from future drinking was not genuine. This was denied. The applicant said of his present position: Well after the second incident I have matured in so many different ways. My drinking habits have pretty much ceased to non-existence and that is the God honest truth. My sole objective now is my family, one, and my career second. And I believe getting my job back is extremely important to me in more ways than one. The fact that it will get me back to where I was prior to all this happening. Give me an opportunity to - Q. When you had the job you were binge drinking by the looks of it? A. I was. But I want to say this. My alcohol consumption, I did have a problem with binge drinking, and it wasn't as frequent as it sounds. I know everybody says that but it truly wasn't. And it was these incidents that really gave me a kick up the butt, so to speak, to find out more. And that is why I went to counselling, 1, to make sure that what I was doing, obviously wasn't working, and 2, to rectify the problem. And I am one hundred per cent I have rectified it and it will not happen again. It can't happen again because I have dragged my family through too much and they have gone through it just as I have. And they weren't the brunt of the problem it was me. And I sorted that out and I really needed to get my life back into order. And without a shadow of a doubt there is not going to be any more incidents, regardless of your decision. Applicable Legal Principles 42 From the applicant's employment history, a number of facts emerge and conclusions can be drawn. Further, some issues have arisen which are contentious and require findings. Such findings and conclusions will then be applied and interpreted in accordance with the applicable legal principles. It is therefore necessary to recite those principles. 43 The Commission in an application under s181E is required to take a number of matters into account. The Full Bench in Hosemans v Commissioner of Police (2004) 138 IR 159 discussed the approach to review under s181E, saying: [101] Part 6 Chapter 2 of the Industrial Relations Act encompasses the legislative provisions relating to unfair dismissals. That those provisions have application, albeit modified, in relation to reviews under Part 9 Division 1C of the Police Act has been affirmed in prior decisions of the Commission at both first instance and appellate level. . . . [ 104] As a matter of statutory construction there can be no doubt that a review under the Police Act is akin to unfair dismissal proceedings under the Industrial Relations Act (subject to limited modifications). Contrary to his Honour's conclusions a review has as its legislative underpinning proceedings under Division 6, Part 2 of the Industrial Relations Act relating to unfair dismissals. The language of s 181G(1) of the Police Act unambiguously states that the provisions of the Industrial Relations Act apply to an application for review in the same way as they apply to an application relating to an unfair dismissal under Part 6 Chapter 2 of the Industrial Relations Act subject only to the modifications denoted. 44 In Commissioner of Police v Dobbie [2006] NSWIRComm 285, the Full Bench discussed the relevance of the seriousness of the offence in the consideration: 66 There can be no doubt that Marks J was fully cognisant of the seriousness of the offence committed by the respondent and it may be accepted his Honour well understood the implications for maintaining the integrity of NSW Police if the respondent were to be reinstated. But his Honour was required to have regard to all of these considerations as well as the respondent's interests. 67 Section 181F(1)(3) does not dictate what weight or influence each of the particular matters is to have in the decision to be made. Ultimately his Honour decided, on balance, having regard to all of the circumstances, the dismissal was harsh. 68 Whilst an appellate court or tribunal is duty bound to reverse conclusions based on a trial judge's views of fact when those views of fact are plainly wrong, an appellate court or tribunal is equally duty bound not to reverse such decisions of a trial judge merely because the appellate court or tribunal itself takes a view different from that of the trial judge of the findings that should have been made: Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 43 per Wright J, President and Walton J Vice President; Martin v Byrnes [1999] NSWCA 144. 69 Given that his Honour had regard to all of the matters that he was required to under s 181F(1)(3), that he did not mistake the facts and that his conclusions based on the facts were reasonably open on the evidence, we are unable to see how his Honour erred in the exercise of his discretion and thus how this Full Bench may intervene to review his Honour's decision on appeal. 45 In Hugh Gerrard Brennan v Commissioner of Police [2007] NSWIRComm 229, Haylen J discussed the disproportionate nature of the penalty when compared to the offence committed by the Police Officer: [112] The justice system requires consideration of all relevant matters before imposing an appropriate penalty notwithstanding the fact that there has been a breach of the law. Each case has to be considered on its own facts. In the present case, it can be accepted that Mr Brennan has already lost an amount of salary although his work has, from time to time, been able to return to him more than he might have earned as a Constable: . . . What is evident, from a consideration of all the matters referred to above, is that this single act of assault punished by the imposition of a two year good behaviour bond did not warrant the loss of his career as a Police Officer. The circumstances surrounding the assault and the nature of the assault itself demonstrated it to be of a low level and a one-off incident where a good behaviour bond was appropriate as punishment. . . The Commission is therefore of the view that, while the action of Mr Brennan was not warranted and constituted a common assault, the removal of Mr Brennan from the Police service was a harsh penalty in all the circumstances. . . . . . . [132] Mr Brennan has made some errors of judgment but they are not of such order that the State should lose an officer capable of fulfilling the important duties required under the Police Act. He has discharged the onus of showing that his removal was harsh. 46 The requirements and the effect of the applicable terminology in s84 of the IR Act as to whether a termination was harsh, unreasonable, or unjust have been discussed by the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 where in a joint judgment, McHugh and Gummow JJ said (at 465): It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. In the application of this phrase, a Full Bench of the Commission stated in Bankstown City Council v Paris (1999) 93 IR 209 (at 212): This phrase, contained within s 84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust; other permutations may apply. . . . In Rose v Telstra Corp Ltd (unreported, AIRC, PQ9292, 4 December 1998), Ross DP said: In my view, for the purpose of s 170CG [of the Workplace Relations Act 1996 (Cth)], a termination of employment may be: HARSH, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; UNJUST, because the employee was not guilty of the misconduct on which the employer acted; and/or UNREASONABLE, because it was decided on inferences which would not reasonably have been drawn from the material before the employer. 47 These applicable principles guide the Commission in its consideration of all the facts placed before it so as to determine whether the Commission's decision was harsh, unreasonable or unjust. In the consideration of the Commissioner's reasons and decision to remove the applicant from the NSW Police Force, the Commission must balance the public interest against the private interests of the applicant. Consideration 48 The question therefore is whether or not a conviction of a Police Officer for the offence of "Under the Influence - Dangerous Driving Occasioning Grievous Bodily Harm" warrants dismissal for conduct and whether any other circumstances could allow relief. The Commission must give weight to a number of factors as well as a consideration of the public interest in having such a person serve in the police force. 49 In this instance the nature of the criminal activity, while not one of abject violence, was most serious. This is conceded by the applicant. 50 In a review of the Commissioner's decision, the Commission assesses all the information placed before it including the Commissioner's Reasons, the applicant's case and the Commissioner's Reply (s181F of the Act). The Commission can take into account matters subsequent to the removal of an officer (Starr v Commissioner of Police (2001) NSWIRComm 226 at [322]-[324]; Little v Commissioner of Police (No. 2) (2002) 112 IR 212 at [74]; Van Huisstede v Commissioner of Police [2000] 98 IR 57 at [194]). 51 There are two separate instances pleaded before the Commission where the applicant has brought disgrace upon himself while under the influence of alcohol. Such poor behaviour legitimately raises questions about his suitability for the NSW Police Force. 52 The circumstances surrounding the applicant's driving offence are particular. The applicant was familiar with the road. The roadway was undergoing roadworks. A detour was in place and a curve placed in a normally straight stretch of road. The road was badly lit and the road surface was in poor condition. While none of these factors mitigate the crime he committed, they illustrate factors outside the applicant's control and, exacerbated by his intoxicated state, the accident occurred. Injuries were sustained in the accident, the most serious being a broken arm suffered by one of his friends. This friend has recovered. The judge said of the applicant in handing down sentence for the offence, that the charge reflected a "momentary reckless error of judgement". 53 The applicant was later involved in a fracas with a security guard at Penrith McDonalds on 5 October 2006 also while under the influence of alcohol. The applicant had worked for two and a half years in the NSW Police Force without blemish and had a good record as a Police Officer. 54 The applicant admits to binge drinking. This evidence persuades me this binge drinking was episodic. The statements of his friends with whom he was with that night celebrating reveal a culture where drinking a mix of beer and spirits over six hours in the hotel was considered an acceptable way a group of male friends welcome joyous news. The applicant's brother-in-law was with the applicant. 55 Even after the applicant was stood down from the Police Force and one year after the initial incident, the applicant remained in that culture of "binge" drinking as evidenced by the McDonald's incident, another episode but more than a year later. I accept he then "woke up to himself". He realised he was in trouble and sought professional help. He has changed his lifestyle. He holds a responsible job and has shown great promise in that capacity. Even if I accept the respondent's proposition he sought this "help" in the context of the assault charges, nonetheless I accept the counselling had a positive effect in altering the applicant's behaviour patterns. 56 I accept the applicant is not alcoholic. But within his cultural environment "binge drinking" was acceptable behaviour amongst young men. Notwithstanding that many of these young men come from fine family homes, they think it acceptable to binge drink to the point of stupor to celebrate, to drown their sorrows or in their quest to maintain mateship relationships. They then feel invincible, to sit drunk behind the wheel of a car or to respond aggressively in a social environment. 57 These attitudes are reflected in the applicant's past behaviour patterns. 58 I accept while that may have been a reflection of the applicant's past world it is no longer so. I accept he is now a responsible family man and a hard worker. Another child is due in February. He has huge debts mostly from legal expenses incurred in defending the assault charges and financing himself for this appeal. The $8,000 he and his wife had saved as a deposit on a house has now been converted to a debt of $40,000 - part of which is a high interest loan. He works two jobs in an attempt to become debt free. He has legal representation in this litigation and had independent counsel in the assault case. He has fought hard and within his rights to drag back some of his reputation. 59 In addition to the evidence of a criminal conviction arising from the driving offence, the respondent relies upon the proven unruly behaviour of the applicant after his suspension but before his removal. The Commissioner asserts such conduct makes the determination to remove the applicant reasonable. The respondent submits the two incidents prove the applicant's unsuitability to be a Police Officer - as a matter of public interest. 60 Evidence of the fracas with the security officer at McDonalds, again in the early hours of a Sunday morning, again with the applicant under the influence of alcohol, led to two assault charges being pressed against him. On 12 December 2006, he was found not guilty of both assault charges arising from the altercation. The Commissioner did not take this incident into account in his Statement of Reasons for the termination of the applicant's employment. 61 While the applicant did not reveal the second charges regarding the assault in his supplementary submissions to the Commissioner on 19 March 2007 there was an inference cast by the respondent, if not a direct submission, that he hid them. The McDonalds' incident was not relied upon by the Commissioner. The applicant gave evidence he had informed his Local Area Commander when the charges were laid. He fought hard against the assault charges. The Magistrate found the applicant had acted against the Security Officer in self defence. In evidence the applicant was asked: Q. And there is no suggestion, either orally or written from the Commissioner of Police subject to that, that this matter was ever to be considered by him or taken into account in deciding to issue you with an order under s181D removing you? A. That's correct. Q. And yet these were public proceedings? A. Yes. 62 I am satisfied the NSW Police knew of the two charges of assault and that they had been dismissed. Although the charges may have been laid by the Security Officer they were handled before the Magistrates' Court by the Director of Public Prosecutions. Police were called to give evidence. They were matters on the public record. The applicant had told his Commander of the pending charges. I therefore distinguish the facts in this matter from those considered in the authority of Concut Pty Ltd v Worrell and Anor (2000) 176 ALR 693 (at 707) and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (at 467) where circumstances not known of at the time were able to be used to justify dismissal. Cook J in Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 said (at 25): ... where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having "condoned" that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action . (See also Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 per Walton J, Vice-President; Hungerford J; Bishop C at [31]-[32].) 63 The assault charges against the applicant pre-dated the Commissioner's Order removing him from the NSW Police Force and the Police Force had knowledge of the charges and the resolution was on the public record and they were not referred to in the Commissioner's reasoning. I do not accept the assault charges (later dismissed) that were within the knowledge of the Commissioner and not relied upon as a ground of dismissal in the Statement of Reasons, can now be relied upon by the Commissioner as evidence to support his decision to remove the applicant from the NSW Police Force. As said in Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 (at 373), the question is whether such grounds and justification existed at the time of the Commissioner's determination. The dismissed assault charges were not seen as relevant by the Commissioner in his consideration and I do not view them any differently. They were, however, part of the chronology of the applicant's "binge drinking" history and are given consideration in that aspect of the case. 64 However, I must balance the interests of the applicant with those of the public interest in this consideration. I accept the applicant has attended counselling, has listened to the warnings delivered and has adopted the skills to ensure he avoids binge drinking. He has addressed his past behaviour as a matter affecting both his health and his standards of behaviour. He has proven his stability by holding down a well paid position since he has been terminated from the NSW Police Force. He has worked two jobs to meet his legal debts and in an endeavour to put his family back on a firm financial footing. Another child is expected. 65 The public interest in the integrity of the NSW Police must also be given consideration. In Van Huisstede v Commissioner of Police (2000) 98 IR 57, Walton J, Vice-President said of the public interest at [216]-[217]: 216. The intent of the subsection is plainly to direct the Commission to have regard to particular matters, namely, the applicant's interest and the public interest in maintaining the integrity of the Police Service. The underlying effect of such a consideration may be that the interests of an applicant in their continued employment, reputation and financial security may be justifiably over-ridden in light of the important public interest in the integrity of the Police Service. In my view, the public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so. 217. However, the legislation does no more than require the Commission to have regard to the public interest. It does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer in deference to the public interest in the integrity of the Police Service. Nor does it assume that the public interest will always operate against the interests of an individual officer. If that were the case, the remaining provisions enabling an officer to seek review would be to no effect. The submissions of the respondent conceded that all the Commission is required to do is balance the competing interests, rather than giving primacy to one over the other. 66 I must accord appropriate consideration to the public interest in upholding the integrity and public confidence in the NSW Police Force. The Police Commissioner would not see it in the public interest to have a person convicted of "Dangerous Driving Occasioning Grievous Bodily Harm - Under the Influence" to be a member of the NSW Police Force no matter his expression of contrition and his reformation. However, such a consideration is not the pre-eminent or overriding one. All factors must be taken into account. 67 The Commissioner in his Statement of Reasons dismissed the applicant on the grounds the offence was so serious it was against the public interest to have such a person serve as an officer with the NSW Police Force. The standards of behaviour required of a member of the NSW Police Force, the Commissioner determined, were at odds with allowing the officer to stay in the Police Force. In his Reasons, the Commissioner stated: I have carefully reviewed all the material associated with this matter and I can see no reason of mitigation that would provide me with a basis not to lose confidence in your suitability to remain a police officer. 68 The Commissioner in his Statement of Reasons had regard, however, to a view sought from a solicitor for the Director of Public Prosecutions. It appears from the Commissioner's Reasons he was advised by that solicitor the sentencing judge in considering the driving offence had "made mention in sentencing of extra curial punishment being taken into account". The Commissioner commented the judge considered the applicant's restriction of duties, which progressed to suspension and probable dismissal and the consequential financial implications upon the applicant. These were all matters also placed before the Commissioner for his consideration before the decision to terminate the applicant's employment. It was the Commissioner's view the applicant already had the "advantage of them in the sentencing process". He also noted the judge had found the applicant's conduct a "momentary reckless error of judgement". 69 The Commissioner in his Statement of Reasons therefore determined the only extra curial matters he would take into account were that the applicant had now managed his alcohol consumption (for which he commended the applicant) and noted the applicant's expressed contrition. The Commissioner then determined in balancing the applicant's expressed contrition against the seriousness of the offence, that given the high standards of behaviour expected of a Police Officer on or off duty, the applicant's conduct necessitated his removal from the NSW Police Force. He found him not "suitable" to be a Police Officer. 70 The applicant was dismissed for the seriousness of the offence. No other matters - except that he was contrite and had sought help for alcohol problems - were considered by the Commissioner. Neither was found mitigating. From the Statement of Reasons, the applicant's good service in the NSW Police Force and the effect of his dismissal economically and personally upon him and his family in a circumstance where they had already been given effect to in the court's sentencing for the driving offence, were determined by the Commissioner as not relevant to his determination. While the Commissioner remarked upon "comments on sentence sought from the instructing solicitor" he did not directly reveal all such remarks. 71 Generally in employment law, as in civil cases, inferences must be drawn on the balance of probabilities and there need only be circumstances raising a more probable inference in favour of what is alleged but, before it can be drawn, the inference must be something which follows from a given premise as being at least probably true (Chapman v Cole (2006) 15 VR 150 at [14]). However, inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the facts which it is sought to establish. In some cases, other facts can be inferred with much practical certainty (as if they had been actually observed). In other cases, the inference does not go beyond reasonable probabilities. But if there are no positive proved facts from which inference can be made, the method of inference fails and what is left is mere speculation or conjecture (per Spigelman CJ in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 at [87] quoting Lord Wright in Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 (at 169-170)), Marinov v ASADA (2007) 2(1) ANZSLJR 2 (at 134). On drawing inferences from circumstantial evidence see also Starr v Commissioner of Police [2001] NSWIRComm 226 per Walton J, Vice-President at [240]-[244] and the Full Bench in Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 (at 152 -157)). 72 The Commissioner, as a matter of fact, in his reasoning did not consider a number of the subjective factors placed before him. The Commissioner stated the "extra curial" matters (amongst others) placed before him "had already been taken into consideration". By inference the Commissioner viewed the sentence imposed by Marien J of the District Court, as lenient and therefore the Commissioner determined the applicant should not enjoy a similar beneficial effect from the "extra curial" matters in his consideration. Therefore matters such as the applicant's service and the effect of dismissal on him and his family were not given consideration by the Commissioner. 73 Further, the Act states the Commissioner is to have regard to the Police Officer's "competence, integrity, performance or conduct". Clearly, the Commissioner found "conduct" the most relevant, but it was not his only consideration. Under the rules of statutory interpretation of the use of the word "or", under s181D(1), is generally a disjunctive conjunctive. Given the way s181D(1) is drafted, "conduct" can be a sole ground for removal. In considering the use of the conjunctive "or" it is relevant to take into account the ordinary meaning of the word in construing the language and purpose of the statute (Interpretation Act 1987 (ss33-34); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ (at 381 & 384)). 74 In the Second Reading Speech of the Police Service Amendment Bill 1997, the then Attorney General and Minister for Industrial Relations, the Hon J.W. Shaw said (Hansard, Legislative Assembly, 19 June 1997 at [10682]-[10684]): Without the means to quickly and efficiently terminate the employment of individuals who cannot or will not comply with minimum standards of integrity, conduct and competence, it is doubtful that we will ever reap the full benefits of the reform process. . . . The result is a process that retains the Commissioner's power to ensure that the service is able to quickly free itself of those who fail to live up to professional standards of integrity, competence and behaviour , but also protects against injustice . . . In making its decisions, the IRC will be required to balance the interests of the applicant against the wider public interest including the interest of protecting the integrity of the Police Service. This will also include the fact that the applicant was dismissed under section 181D(1) - that is, for want of Commissioner's confidence. ( emphasis added) Although s181D(1) of the Act states "or", the Minister read it in a conjunctive rather than a disjunctive sense by employing the conjunction "and" before "behavioural" (read "conduct"). 75 In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, the Full Court of the Federal Court of Australia gave consideration to the use of the conjunctive "or" under s501(2) of the Migration Act 1958 where that Act required the Minister have regard to a persons "past criminal conduct" or "general conduct". The Court held (at 194-195): An obligation, in a statute, to have regard to specified matters when making an administrative decision may have the effect of requiring the administrator "to take [the specified matters] into account and to give weight to them as a fundamental element in making his determination", but not to make it by reference to them exclusively: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 ; 25 alr 49; Queensland Medical Laboratory v Blewett (1988) 84 ALR at 623. If each of the types of conduct mentioned in s 501 was thus regarded by the legislature as of fundamental importance, but at the same time as not excluding other considerations, it is impossible to imagine that either was regarded as excluding the other. Both were fundamental. It follows that the word "or" should not be read as strictly disjunctive, but as a kind of hybrid of disjunctive and conjunctive, equivalent to "or, or as well", conveying the meaning that the decision may be reached having regard to either or both of the kinds of conduct referred to. A very similar meaning was given to the word "and" in Beneficial Finance Corp v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 530-1 ; 103 ALR 167 in the judgment of Burchett J with whom Sheppard J agreed, although Pincus J (at FCR 526) expressed a different view on this point. Authorities were cited (at FCR 530) to justify the alteration of "and" or "or", where the context requires, to correct what may fairly be described as "nothing more than a faultiness of expression". Particularly relevant to the present case is also the decision in RF Brown and Co Ltd v T and J Harrison (1927) 43 TLR 394, affirmed under the same name by the Court of Appeal, (1927) 43 TLR 633. On the appeal in that case, Atkin LJ said (at 639): I disagree with the learned judge in his view that the word "or" can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the court to give the word a conjunctive use. See too Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481-2; Ormerod v Blaslov (1989) 52 SASR 263 at 269 et seq; Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 540 at 547 ; 123 ALR 202. (For further consideration of the conjunctive "or" see Quality Bakers v ALHMWU [2004] NSWIRComm 318 at [24]-[28].) 76 The effect of the words "competence, integrity, performance or conduct" in s181D(1) was touched upon by Walton J, Vice President in Van Huisstede and the Commissioner of Police [2000] NSWIRComm 97 at [214]: In my view, the provisions facilitating the removal of a Departmental Secretary considered by the Full Federal Court in Barratt may be distinguished from the statutory scheme presently under examination. Notably, the basis for removal of a police officer under s181D is not unrestrained in the same way as the termination of appointment of a Departmental Secretary under s37 of the Public Service Act 1922 (Cth). The Commissioner may conclude that he does not have confidence in a police officer only on the basis of the officer's competence, integrity, performance or conduct. The Commissioner's decision must have some foundation in one or more of these attributes. (As approved of in Hosemans v Commissioner of Police [2004] 138 IR 159 at [107] the Full Bench, by infererence, read the phrase in a conjunctive sense). 77 Authorities on statutory interpretation, therefore, differ as to the effect of the conjunction "or" (Pearce, Geddes Statutory Interpretation in Australia 6th Edition at 47). It has been considered to be both inclusive and exclusive of the terms employed before or after it. Consideration must be given to he context and purpose underlying the Police Act, the intention of Parliament in enacting the amendment and the Minister's explanation in the second reading speech which makes use of the conjunction "and" rather than "or". In considering all aspects, I find the expression "competence, integrity, performance or conduct" in s181D(1) can have a cumulative effect and the words can be, but not must be, inclusive and allows the Commissioner to consider both conduct and the personal history of the applicant. 78 A failure to adhere to the statutory procedures laid down will be a matter of some significance in proceedings. Once the Commissioner considered the "integrity" of the officer (for example, he made mention in his Reasons of the applicant's attendance at counselling and the applicant's expressed contrition) then the officer's comprehensive submission as to his integrity, competence and performance were also relevant to the consideration. The words of the Commissioner "I have reviewed all the material" does not negate the necessity to consider the issues related to competence and performance in mitigation as raised by the applicant as "conduct" was not the sole ground relied upon by the Commissioner in his reasoning. The Commissioner was in error in his determination that, as the applicant had the benefit of such significant subjective factors by the judge in sentencing, therefore, the Commissioner did not have to give weight to them in his consideration as to mitigation of penalty. The Commissioner dismissed them as already having been taken into consideration in the applicant's sentencing for the dangerous driving offence and therefore not relevant to his own consideration under s181D(1). 79 The Commissioner determined not to take into account the applicant's unblemished work with the NSW Police or to consider the other subjective factors placed before him. While the Commissioner is entitled to dismiss solely for "conduct", once he determined to examine some aspects of the applicant's integrity, all aspects placed before him including the applicant's performance and competence were relevant to the Commissioner's determination. 80 As to the applicant's expressed contrition, the respondent submits the applicant has not given to the Commissioner a persuasive unfettered Dobbie style undertaking. I do not accept that a Dobbie style undertaking to abstain totally from alcohol (in a termination where alcohol plays a significant part) can be either a guarantee to a successful review of a termination or be perceived as a panacea for members of the NSW Police Force with personal problems related to the consumption of alcohol. Members of the NSW Police Force already undergo random drug and alcohol testing. This is accepted as part of ensuring, in the public interest, they are persons of integrity and able to perform their duties appropriately. At first instance in Dobbie v New South Wales Police [2006] NSWIRComm 12, Marks J warned accordingly in accepting an undertaking given before his Honour saying at [29]: I should add that the respondent submitted that, in acceding to the applicant's request for favourable review by reference to an undertaking given during the course of a hearing, the Commission would be encouraging "such actions as some sort of last (or third) chance avenue for non-removal". I accept that such a course of action may encourage applicants to endeavour to manipulate the review system to their own advantage. However, by reason of the conditions which I intend imposing, I am hopeful that no such assertion may be levelled in the circumstances of these proceedings. 81 The applicant, a 27 year old man, was reluctant to give an undertaking that required his complete abstention from the consumption of alcohol. The applicant, while fiercely pressing this application, clearly did not want to give such an undertaking saying: Well, the reason being is, I did not want the fact that if I celebrated Christmas and had one beer I would jeopardize my career again. As I already did with the motor vehicle accident. 82 I accept this is a sensible attitude for the applicant to adopt towards drinking alcohol on social occasions. Further, as to his present attitude to alcohol, the applicant said: Well after the second incident I have matured in so many different ways. My drinking habits have pretty much ceased to non-existence and that is the God honest truth. . . . But I want to say this. My alcohol consumption, I did have a problem with binge drinking, and it wasn't as frequent as it sounds. I know everybody says that but it truly wasn't. And it was these incidents that really gave me a kick up the butt, so to speak, to find out more. And that is why I went to counselling, 1, to make sure that what I was doing, obviously wasn't working, and 2, to rectify the problem. And I am one hundred per cent I have rectified it and it will not happen again. . . . This was said in the context that the applicant acknowledged he was well aware of the random drug and alcohol tests conducted on officers of the Police Force. 83 I find the following factors relevant in considering the circumstances surrounding the applicant's removal from the NSW Police. A court of law had determined sentence for the applicant's driving offence (with a high range alcohol reading) and that sentence has been served. The applicant has expressed genuine contrition and remorse for his offence and his plea of guilty reflected this. He accepted responsibility for his actions. The applicant has received and accepted counselling for his "binge drinking" problems. The applicant gave the Commission an undertaking of attitudinal change which the Commission has found persuasive. The applicant has proven his strong work ethic since his dismissal. The impact of his removal from the Police Force has been severe on both himself and his family. The applicant has expressed a determination to be in the NSW Police Force. The applicant has further expressed a genuine passion for the work of a police officer, saying it gave him a sense of purpose and fulfilment. 84 Bryson JA (with Handley and Ipp JJA agreeing) stated when considering the meaning of "harsh, unjust or unreasonable" in Murray Irrigation Ltd v Balsdon (2006) 67 NSWLR 73 at [36]: "Harsh, unjust or unreasonable" is a formula of words of no precision, and adopting those words indicates . . . an intention to take the matters for consideration out of the ordinary context, and to bring in a much wider range of relevant matters, including personal circumstances of parties, than would be under consideration in a test related only to performance of contractual obligations. 85 Weighing up the applicant's interest with the public interest, I find the decision of the Commissioner to terminate the applicant's employment with the NSW Police, if not unreasonable and not necessarily disproportionate to the offence committed, nonetheless, in all the circumstances, was harsh. 86 The applicant submits as to the relief he claims: There are three remedies made available in descending order. The primary and most appropriate remedy is reinstatement. If the primary remedy is "impracticable", then the Commission has to consider the second remedy, namely, re-employment. If that remedy is impracticable, then and only then, does the Commission move to the third and final alternative, namely, an award of monetary reinstatement which is limited ( Commonwealth Steel Company Limited v Ward , unreported, Hill and Hungerford JJ and Sheils CC, 16 December 1994, 16). Thus, a proper exercise of the powers under s 89 should not descend beyond the primary and most appropriate remedy of reinstatement as it is not reasonably open to find this remedy is "impracticable". 87 Section 181G of the Police Act 1990 also has the effect of incorporating the provisions of the Industrial Relations Act 1996 into the relevant processes (s1801G). Therefore, s89 (save for subs 7) applies and various alternative orders are available to the Commission. Relevantly, s89 is in the following terms: Section 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. 88 Each case must be examined on its own merits. I must determine in considering a reinstatement or re-employment of the applicant whether the requisite trust between employer and employee is capable of being viable and productive (see Hollingsworth v Commissioner of Police (No2) (1999) 88 IR 282 (at 341-342). 89 The Commissioner has and must retain the power to dismiss a Police Officer for his or her conduct and certainly the past conduct of the applicant warranted the question be raised to his suitability to remain a Police Officer. However, I am persuaded taking into account the applicant's present character, determination and maturity that he is capable of being a viable and productive Police Officer and the Police Force would place great value on the opportunity to have such a person re-join its ranks. I make this finding notwithstanding the Police Force will have a serving officer who carries a criminal record for drunken driving occasioning grievous bodily harm. However, the trial judge in the District Court viewed the offence based on all the evidence as a "momentary reckless error of judgment"'. I find neither the public interest nor the integrity of the NSW Police Force will be undermined by accepting back into its ranks a keen and experienced officer who has paid his debt to society and is to be given what is called (colloquially) a second chance. I am persuaded the requisite trust required for the employment relationship can be re-established (Hollingsworth (at 341-342)). 90 In the circumstances, I give the applicant the benefit of his years of service in an order of re-instatement. I accept re-instatement is not "impractical" (Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98 at [58]-[61]). The Commissioner will have to determine where to place the applicant so as to give him the chance to appropriately re-establish his reputation and commitment to the NSW Police Force. I do not order any back payment of wages as I take into account his post termination employment and earnings. Orders 1. In the use of my discretion, I order the applicant to be re-instated as a Police Officer from a date suitable to the parties within 30 days of the date of this Decision. 2. I give leave to the parties to approach the Commission within 14 days with agreed terms reflecting the above Order. Further Orders will then be entered. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.