Industrial Relations Commission of New South Wales CITATION: Craig Eric Allchin and the NSW Police [2007] NSWIRComm 76 Applicant: Craig Eric Allchin PARTIES: Respondent: NSW Police FILE NUMBER(S): IRC6723 of 2005 CORAM: Kavanagh J CATCHWORDS: Application under s181E of the Police Act 1990 - s181D removal of a police constable - applicant considered unsuitable in training - sworn in as constable - unreliable and unsatisfactory work over one and a half years - remedial placement -excessive sick leave- no return to full duty - alcohol abuse - refusal of treatment - complaints of stress - notice relies on off-duty conduct - reasons for order raise issues of on-duty conduct and other incidents outside grounds of notice - termination for conduct and attitude - no consideration of medical condition affecting conduct - termination harsh and unjust - applicant not suitable candidate for police service - reinstated, on conditions, for medical examination re medical retirement LEGISLATION CITED: Police Service Act 1990 Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Commissioner of Police v Dobbie [2006] NSWIRComm 285 Starr v Commissioner of Police [2001] NSWIRComm 226 Van Huisstede v Commissioner of Police (2000) 98 IR 57 HEARING DATES: 28/08/06, 29/08/06, 30/08/06, 31/08/06, 13/09/06, 14/09/06, 15/09/06, 27/10/06, 27/11/06, 28/11/06 DATE OF JUDGMENT: 5 April 2007 Applicant in person Respondent: LEGAL REPRESENTATIVES: Mr A. Searle of counsel Solicitors: Ms G. Fuller Crown Solicitor's Office JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Kavanagh J Thursday 5 April 2007 Matter No IRC 6723 of 2005 CRAIG ERIC ALLCHIN AND NEW SOUTH WALES POLICE Application by Craig Allchin for review of an Order under section 181E of the Police Service Act 1990 DECISION [2006] NSWIRComm 76 1 This is an application by Craig Eric Allchin (the applicant) for a review of an Order made by the Commissioner of Police (the Commissioner) pursuant to s181D(1) of the Police Service Act 1990 (the Act) which Order removed the applicant from the Police Service of New South Wales (the Service). 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 Police Service on the grounds that the removal was harsh, unreasonable or unjust. 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 states: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from NSW Police 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 NSW Police. (5) The removal takes effect when the order is made. (6) (Repealed) (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 NSW Police 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 NSW Police. (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. 181E Review generally (1) A police officer who is removed from NSW Police 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 NSW Police, (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 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, subject to this Division and to the following modifications: (a) section 83 (Application of Part) is to be read as if subsection (3) were omitted, (b) section 85 (Time for making applications) is to be read: (i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the Order to which the application relates, and (ii) as if subsection (3) were omitted, (c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review, (d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted, (e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made, (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) Notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1)(f)(ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision. 181H Commissioner and members of Commissioner's Advisory Panels compellable witnesses only by leave (1) In any proceedings before the Commission under this Division, neither the Commissioner nor any member of a Commissioner's Advisory Panel is compellable to give evidence in relation to the exercise of the Commissioner's functions under section 181D unless the Commission gives leave. (2) The Commission may give such leave only if it considers that extraordinary grounds exist that warrant leave being given. (3) In this section, Commissioner's Advisory Panel means a panel established by the Commissioner to assist in the exercise of the Commissioner's functions under section 181D. 4 The applicant was self-represented at this hearing of his review against the Commissioner's Order to remove him from the NSW Police. The applicant had the assistance of a solicitor when he filed his submission to the Commissioner in reply to the Notice of the Commissioner's grounds for his removal. The applicant relied upon considerable documentation in this review including those submissions in reply to the Notice. He required for cross examination 15 lay persons and police officers who were witnesses to events relied upon in the Orders and Reasons for Orders or who were police officers involved in the investigation of each event. 5 Mr Searle of counsel represented the NSW Police. He relied upon the exhibits and the evidence of witnesses: Detective Chief Superintendent Hudson now Director of Operations, Professional Standards but at the relevant time the Area Commander at Rosehill and Mt Druitt Ms Julie Hebb, patron at the Penrith RSL Club on 27 December 2001 George Horvath, observer of Penrith Plaza incident on 9 June 2003 Patricia Mary Gunning, employee of the Kingswood Sports Club on Sunday 5 October 2003 Luke Moore, Chief Inspector of Mt Druitt Local Area Command Mark Dukes, Detective Senior Sergeant attached to Mount Druitt Detectives Anne Sullivan, Inspector of Police attached to the Employee Manager Unit Paul Field, Senior Constable attached to the Parramatta Local Area Command Sharon Noble, Acting Manager of the Medical Discharge Co-ordination Unit, NSW Police Service Peter Driscoll, Administrative Officer with New South Wales Police (Acting Director, Health Services Michael Charles Randall, former Chief Commander with the New South Wales Police Force (now retired from the Police Service) Scott Robinson Senior Constable of the New South Wales Police Service City Central Commuters Crime (formerly attached to St Marys LAC) Peter Robinson, serving member of the New South Wales Police attached to the Mount Druitt Police Station. 6 Much documentation was tendered through these witnesses including investigation reports and recommendations and personnel and medical files covering the service of the applicant. The applicant required for cross examination many of the officers involved in the preparation of documentation, the conduct of investigations of events relied upon, police officers with whom he worked and those employees active in the welfare/medical section of the NSW Police. 7 The applicant, in reply, tended documents of a financial nature as to his earnings and tendered much of the documentation already filed before the court in affidavit form. Notice pursuant to Section 181D(3)(a) 8 Prior to the issue of the Order removing the applicant from the NSW Police he was served a Notice on 5 October 2005 in accordance with s181D of the Act. It read as follows: Constable Craig Eric ALLCHIN Notice under Section 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 April 2002 you were the subject of a Commander's Warning Notice in respect to your off-duty conduct and performance of your duties. The Warning Notice related to an incident on 27 December 2001 whereby while off-duty you acted inappropriately towards a patron of the Penrith RSL Club. When approached by the manager of the RSL Club and security staff regarding the incident you abused your authority by inappropriately producing your police identification and using offensive language. Further to this, you were the subject of a work performance program due to a number of internal performance issues, such as late submissions of Computerised Operational Policing System (COPS) entries and difficulties when recording written information. In issuing you with this Notice the Commander clearly warned you that any continued unsatisfactory conduct and/or performance of duties may result in further management action, which may entail consideration of reviewable action under section 173(2) of the Police Service Act 1990 or removal under section 181D of the Police Service Act 1990 . In accordance with Section 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 , on the basis of the following grounds: 1. On 9 June 2003 at the Penrith Plaza Shopping Centre while off-duty and under the influence of alcohol, you misused your office as a police officer by producing your police identification when you inappropriately intervened in an altercation between security personnel and your brother-in-law, Michael Rigo. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics (Private Conduct) and contravened the Police Service Handbook (Conduct and Public Expectations) and (Off-duty Conduct) . 2. On 5 October 2003 at the Kingswood Sports Club, while off-duty and under the influence of alcohol, you misused your office by producing your police identification when requested to leave licensed premises. You also behaved inappropriately towards licensing police who were in attendance at the premises. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics (Private Conduct) . 3. On 18 October 2003 at Mazepa Crescent, Penrith, while off-duty you misused your office by declaring that you were a police officer when dealing with a neighbour about his manner of driving. You acted in an unprofessional manner when speaking to this neighbour and failed to take immediate action when your brother-in-law, Michael Rigo, began using offensive language. In doing so you have brought discredit to the New South Wales Police and have breached the NSW Police Code of Conduct and Ethics (Private Conduct) and contravened the Police Service Handbook (Conduct and Public Expectations) and (Off-duty Conduct) . 4. On 22 September 2003 you were verbally advised by Detective Chief Inspector Randall in a telephone conversation that your approval to engage in Secondary Employment was withdrawn. You were also informed by way of a formal letter that was forwarded to you at your business address at 12 Butler Crescent, South Penrith. On your admissions, together with the results of the investigation it was evident that you engaged in Secondary Employment between September 2003 and December 2003, after your approval was withdrawn. In doing so, you have breached the NSW Police Code of Conduct and Ethics (Secondary Employment) and have clearly contravened the Secondary Employment Policy and Guidelines. 5. On 23 December 2003 you participated in an Electronically Recorded Interview with Chief Inspector Randall in respect to you engaging in unauthorised secondary employment. During the interview you admitted to working for a number of Real Estate Agencies. In this interview, you were directed to answer questions regarding the identity of other Real Estate Agencies that you had carried out work for, and you failed to divulge the identity of those agents. In doing so you failed to obey a reasonable direction and you have clearly breached Clause (9) of the Police Regulation 2000 (Performance of Duties by Police Officers) . Collectively, these issues indicate a pattern of inappropriate behaviour that does not meet the expectations of either the community or the New South Wales Police. I have significant concerns about your conduct, your capacity for ethical decision making and your ability to behave in a manner 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. 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. Your response should be delivered to: Commander Employee Management Branch C/o Randwick Police Branch 196 Alison Road RANDWICK NSW 2031 (Signed) K.E. MORONEY Commissioner of Police Dated: 21 March 2005 Served by Commander: Signed Dated: 4.15pm (Signed) 5/10/05 (Signed) It is signed by K. E. Moroney, Commissioner of Police, dated 21 March 2005. 9 It is of relevance to note the applicant was not served the Notice signed in March 2005 for some seven months, that is, he was served the Notice on 5 October 2005. In the later recitation of the applicant's employment history, this delay will be addressed. 10 On 22 November 2005, the applicant replied to the Notice as follows: 1. On 5 October 2005 a Notice was served on me pursuant to the provisions of section 181D 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 Police Service of NSW. 2. At the outset Sir, I would ask you to consider that all of the matters referred to in the notice occurred during a very difficult and traumatic time in my life. Each of the allegations referred to in the notice took place while I was on sick leave from the police. I was not engaged in the active duty during any of this time. The reason I was forced to go on sick leave was because I was suffering from psychological difficulties due to events I had had to deal with in the course of my duties. My sick leave commenced prior to being interviewed about these matters and was not as a result of being interviewed in relation to the complaints contrary to what is stated at page 1 of the Commissioner's Confidence Submission. I turned to alcohol during my time on sick leave and not that all but one of the incidents in the notice occurred while I was under the influence of alcohol or medication buy also significantly, all of the incidents occurred, while I was off-duty. 3. Most importantly I also ask you not only to consider the difficulties I have endured but also the progress I have made in overcoming the challenged I have faced in my life. I have not consumed any alcohol at all since 9 August 2005. I am not on anti-depressant medication and have stabilised my depression. I am no longer taking any medication outside that which is prescribed to me by a medical practitioner and I am only taking that medication in the quantities prescribed. I am committed to my own rehabilitation and it is my hope that you will be able to deal with my transgressions by means other than my removal from the NSW Police. 3. (Sic)Moreover, I would ask you to consider this matter in the context of the public utterances by your predecessor, Mr. Peter Ryan, Viz. Commissioner's confidence is about removing Officers whose continued presence in the Police Service is intolerable because of their criminal conduct or refusal to perform at the minimum accepted standard. " "None of us should have to work alongside the criminal or grossly incompetent and it is these people - and only these people - against whom I am exercising the Commissioner's Confidence Powers" 4. Letter to Mr Tunchon, President of the Police Association, undated. "The decision to 'remove' an officer will be based on critical assessment of a complete and balanced profile of the individual and taking into account the response of the Officer to the issues raised". 5. Sydney Morning Herald dated Tuesday, 26 May 1998 - reporting Mr Ryan's address to the Police Association Conference. Mr. Ryan said of the legislation in his speech, "It is designed only to weed out those who are corrupt, absolutely inept , or simply don't want to work , and to deal with (them) as quickly as possible." "It is designed to bring to an end the days when people were left wondering for moths, even years about their future." He stressed that honest officers had nothing to fear. "I am tired of seeing draconian action taken against those who have just made a simple mistake. Let people come clean and we can deal with it openly." I also respectfully note that any finding of fact made by you must be supported by logically probative material. You should apply the Briginshaw v Briginshaw standard in considering any allegation made against me. . . . 11 In the Reply, the applicant asserted under the heading "Post Traumatic Stress Disorder": 16. My time in the police force has been, on occasions, very difficult and I have been subjected to some situations that I have found very traumatic. In August 2000 I was called out to attend a domestic incident to subdue a man armed with a knife. I recall the offender riding towards me on a push bike, leaping off the bike and coming towards me holding a kitchen knife. This incident made me fear of my own life and cause me to become increasingly frightened. The incident kept replying in my mind and I began to experience regular nightmares. I became withdrawn, isolated and aggressive. My relationship with my partner at the time suffered and was so adversely and detrimentally affected by my behaviour that we were forced to separate. To the present day I continue to experience sleep disturbance and have turned to both alcohol, overdosing on medication and self mutilation as ineffectual ways to try to cope with the trauma I was experiencing following this incident. I attach for your consideration the report of the consultant psychiatrist Dr Christopher Canaris diagnosing me with chronic post traumatic stress disorder with obsessive compulsive component. I submit that the trauma I have experienced as a result of my duties as a police officer and its impact on my mental state are significant contributors to my behaviour during the incidents I felt overwhelmed and out of control. I behaved in ways that I couldn't understand or explain at the time. I suffered from extreme mood swings and felt unable to control my behaviour. 17. While I accept that I am not presently well enough to continue my duties within the police force, I submit that my departure from the police may more properly be dealt with by way of a hurt on duty medical discharge rather than removed pursuant to section 181D. and his final submission: 38. The matters referred to in the notice do not, I submit, warrant me being removed from the police. When seen in the context of my alcohol abuse (which I have now addressed), I respectfully suggest that the appropriate way to deal with me is to discharge me medically unfit. 12 On 9 December 2005, the Commissioner considered the Reply of the applicant to the Notice and then issued the Order in the following terms: The 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. In reaching my decision, I have taken into account the matters raised in the submission prepared in relation to you and the Notice served upon you pursuant to s 181D(3)(a) of the Police Act 1990 . I have also taken into account the written response provided by you through 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. 13 The Reasons for the Order were annexed to the Order and were expressed in the following terms: Constable Craig ALLCHIN STATEMENT OF REASONS I am required to make a determination under s181D (1) of the Police Act 1990. In respect of whether I have confidence in you as a member of the New South Wales Police. In making that determination and in accordance with the relevant legislation I have taken into account a submission prepared in respect of yourself and a Notice served upon you pursuant to s181D (3)(a) of the Police Act 1990 on 20 September 2005. I have also taken into account you're written submission provided through your solicitor in response to the grounds set out in my Notice. Firstly, let me say that I am not bound by the policies of former Commissioner Ryan and I will make my own determinations in these matters. I have given careful consideration to all the material that has been presented to me in this matter. I provide the following reasons for my determination: The Notice served on you on 5 October 2005, advised you that I was considering your suitability to remain as a police officer on the basis of your conduct stemming from several investigations conducted by the New South Wales Police into your inappropriate ongoing off-duty conduct. At the outset, whilst in training at the (then) Police Academy, you illustrated by way of your conduct and attitude that you did not possess the necessary characteristics of self discipline and good judgment when you engaged in inappropriate behaviour at the bar of the Police Academy on 7 July 1999. Alcohol (or the apparent abuse of it) was already emerging as a factor in your off-duty behaviour during that incident. Whilst I mention this incident (as reported at page 2 of the Commissioner's Confidence Submission) in my Statement of Reasons, I have not given it any real weight in my deliberations. However, it does provide evidence of your off-duty conduct from an early stage where alcohol was a factor. Post your attestation, a pattern of off-duty behaviour emerged where the apparent misuse of alcohol factored as a significant issue. On 27 December 2001 while off-duty, you acted inappropriately towards a patron of the Penrith RSL Club. When approached by the manager of the RSL Club and security staff regarding the Incident, you abused your authority by inappropriately producing your police identification and using offensive language. Further to this, you were the subject of a work performance program due to a number of internal performance issues, such as late submissions of Computerised Operational Policing System (COPS) entries and difficulties when recording written information. These issues resulted in you being served with a Commander's Warning Notice on 24 April 2002. The Notice related to your off-duty conduct and work performance and clearly stated: "You should understand that continued unsatisfactory conduct and/or performance of duties may result in further management action, which may entail consideration of reviewable action under section 173 (2) of the Police Service Act 1900 or removal under section 181D of the Police Act 1990." You were also directed to seek the assistance of Healthy Lifestyles Branch to help you in relation to any alcohol and gambling related issues you may have been experiencing. Despite this warning and assistance, you continued to engage in a pattern of inappropriate behaviour, which included you directing you directing vile and unacceptable language toward members of the public. Again, your misuse of alcohol emerged as a factor in these matters. The issues include: · That on 9 June 2003, at the Penrith Plaza Shopping Centre, while off-duty and under the influence of alcohol, you misused your office as a police officer by producing your police identification when you inappropriately intervened in an altercation between security personnel and your brother-in-law, Michael Rigo. · That on 5 October 2003, at the Kingswood Sports Club, while off-duty and under the influence of alcohol, you misused your office as a police officer by producing your police identification when you were requested to leave licensed premises due to your level of intoxication. You then behaved inappropriately towards Licensing Police who spoke with you at the premises. · That on 18 October 2003, at Mazepa Avenue, Penrith, while off-duty, you misused your office by declaring that you were a police officer when dealing with a neighbour about his manner of driving. When speaking to this neighbour you acted inappropriately. You also failed to take immediate action when your brother-in-law, Michael Rigo, became involved and directed offensive language at the neighbour. Clearly, and without equivocation, this is not the attitude or conduct, on duty or off-duty, that I expect from members of the NSW Police, nor do I believe do the community. It is my view that your conduct and demeanour (as outlined above) was witnessed by members of the public, diminishing the image and standing of the NSW Police in their eyes. Of particular concern to me is your disregard for fellow colleagues called to occurrences outlined within this 'Statement of Reasons', and to senior officers who variously were charged with the proper investigation of issues. A continuing pattern of poor attitude and a lack of personal responsibility emerge in these matters. This latter aspect is further illustrated in the inquiries conducted by Chief Inspector Randall as referred to in Grounds 4 and 5 of my Notice and which are summarised below. · On 22 September 2003, your approval to engage in secondary employment was withdrawn. The Mount Druitt Area Commander contacted you and advised you both verbally and in writing that your approval was withdrawn. Despite this, on your own admissions, together with the results of an investigation, you conducted to engage in secondary employment between September and December 2003. · You were interviewed on 23 December 2003 in relation to your unauthorised secondary employment. During the interview you admitted working for a number of Real Estate Agents. When questioned by the investigating officer as to the identify (sic) of the agents you refused to answer. When directed to answer the questions, you again refused, falling (sic) to obey a reasonable direction. You do not enjoy the respect of your colleagues. Indeed, according to your Commander, your peers noted that "...whilst in the workplace he was considered a poor performer. He was held in low regard by his peers, supervisors and members of the management team." Your Commander opines, "...I believe his behaviour has shown complete disregard for his office." I note in your response, that in mitigation you seek to negate your off-duty conduct as being a result of a combination of alcohol and medication. By any reasoned adult decision making process, such combinations are dangerous and commonsense would flag this fact. I do not accept that this is an excuse for poor behaviour, attitude or conduct (on or off-duty), particularly when it has been exhibited over such a sustained period of time. You have breached the New South Wales Police Code of Conduct and Ethics. You have contravened the Secondary Employment Policy and Guidelines thereby breaching section 88 of the Police Act 1990. Furthermore, you have also breached Clause 9(1) of the Police Service Regulation 2000. I have carefully reviewed all of the material associated with this matter and see no mitigation or reason that would provide me with any basis not to lose my 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, I therefore remove you from your position as a police officer. (Signed) K.E. Moroney Commissioner of Police Dated: 9 December 2005 Background 14 Evidence revealed the following chronology. The serious issues raised in this case make it necessary to consider, in detail, the full five years of the applicant's employment history with the Police Service. Further, this work history has had to be collated from Police Service records tendered, ad hoc, during the hearing. Records such as the applicant's sick leave file, his personnel file, the applicant's file in the Healthy Lifestyles Branch and in the Rehabilitation Branch, through the various medical reports held on a number of files, including claims lodged and from leave/injury etc records. It has been a difficult task to collate all the material from various disparate records to glean the applicant's work history. This circumstance arose as the applicant required for cross examination witnesses from the Police Service who were involved in the inquiries and investigations or simply were the keepers of records which records were provided to the applicant or produced at the hearing and were related to the decisions taken and investigations conducted by the Police Service. 15 The applicant left school at the age of sixteen. He had always wanted to be a police officer. He attended many TAFE education courses including basic numeracy and literacy courses in order to obtain the skills needed prior to making a successful application to enter the Diploma of Policing Practice. The applicant was a carpenter prior to entering the Police Service. He had his own successful maintenance business. 16 On 12 May 1999, the applicant enrolled at the Police Academy in Goulburn for training. 17 On 16 August 1999, an incident report was submitted in regard to the applicant's attitude given he had expressed a number of inappropriate views in tutorials. Issues such as: how to react to unfounded complaints; guidelines for the use of police batons with emphasis on non-strike areas such as the head; the use of interpreters. For example, the applicant had expressed the following views as to the use of interpreters: "They come to this country. They should know the law and be able to speak English before they are allowed to come" or on the use of batons he expressed the view "the head" would be the most effective place for the use of a baton. These are but two examples of the recorded attitudes which caused his lecturers at the Academy concern. The applicant was sent to counselling regarding these attitudes. 18 On 7 July 1999, when at the Academy in Goulburn for two months, the applicant was involved in an incident which occurred at the Bar of the Academy. The incident related to his behaviour and was alcohol related. A female was refused service at the Bar of the Academy. Following her failure to be served, the applicant purchased alcohol and supplied it to the female student. Both were asked to leave the Bar and refused to do so. Security officers were called and the applicant was argumentative. 19 On 2 August and 17 August 1999, following an interview with the applicant, the Manager of Education Services wrote to him regarding the incident in the Bar, informing him that he could no longer remain as a resident in the Academy. He was informed a reference, both to his coming under notice by the licensee and his "unsupported version of the events the following day" were, in a letter, being forwarded to the Manager of Employment Services regarding "his future suitability for future employment". 20 On 14 October 1999, questions were raised about the applicant's medical history declaration form, which form had been completed when he made his application for employment with the Police Service. In his declaration form, the applicant said he had received psychological counselling and had "suffered from anxiety" and that he had "received compensation in 1997". The applicant was advised: The police medical officer has noted from your medical history declaration form that you have undergone counselling for anxiety. It will be necessary for you to obtain a report from your treating doctor regarding the above-mentioned, detailing the date and nature of the original condition, any treatment given, current state and prognosis. The applicant was thereby notified he must produce medical reports. However, he was allowed to proceed with his studies pending the provision of the medical reports. It took five months until 10 March 2000 for the applicant to provide a certificate from a General Practitioner, Dr K. Jasani, which certified the applicant suffered anxiety in 1995 due to "workers' compensation". The doctor opined the applicant had recovered from his complaints. 21 Also, on 14 October 1999, the Field Placement Co-ordinator of the Academy questioned the applicant's suitability for police employment. As part of his training, the applicant was sent to Community and Police Centres - this is called "field placement". The applicant was held to be a person who "clearly demonstrates lack of maturity and inappropriate behaviour". It was noted the applicant's inappropriate behaviour continued and he was being given strict instructions on the guidelines as to the requirements expected of a future Police Officer. The memorandum stated: Allchin's failure to develop his understanding of policing and the relevance of the police placement is reflected (sic) his poor attitude to supervision and his apparent over-confident attitude (Allchin also received negative reports from the Community Placement Supervisor). The report was forwarded for consideration as to "the suitability of the applicant for police employment." Within five months of the applicant's enrolment at the Academy, therefore, his suitability for the Police Force was challenged. 22 On 17 November 1999, the Senior Constable at St Mary's Local Command reported on the applicant's field placement in his region. He opined the reports from other police who served with the applicant during his field experience were such as to "highlight the applicant's unsuitability to be a member of New South Wales Police Service". There were six specific examples given of the applicant's failure to properly perform in the field placement. The Academy officers also added to this report noting: . . . EDO was quite insistent that interviewing Allchin about the issues raised would serve no purpose as Allchin was overwhelmingly unsuitable. 23 On 13 December 1999, Human Resources and Development, Education Service reported to the Manager, Employment Services and recommended the applicant not be offered employment in the New South Wales Police Service: The applicant is not a suitable applicant for police employment and should be advised as soon as possible so that he can consider other options. The applicant's record was marked: "Failed Trimester Two, field experience". 24 On 6 January 2000, the applicant was, however, further counselled as to his performance and attitude and it was determined by the Manager of Employment Services to give him another chance. 25 On 13 January 2000, the applicant, having failed his field placement, commenced another field placement at the Mt Druitt Local Area Command. 26 On 31 January 2000, the applicant received a satisfactory "Evaluation Improvement Placement Review" from Mt Druitt. 27 On 12 May 2000, the applicant was sworn in as a member of the NSW Police and commenced employment as a Probationary Constable. He was placed at the Mt Druitt Local Area Command. 28 Therefore to summarise, while at the Police Academy, the applicant had been taken out of the Academy's residential college due to an alcohol related incident and that his explanation was found unacceptable. His attitudes towards the community were challenged; concern had been expressed as to the ethical nature of his attitudes; he had failed a field placement; a view had been expressed that he did not listen to advice nor take guidance; a recommendation was made that he was not a suitable candidate for the service yet he was given a further trial field placement, which he passed and was then sworn in as a Probationary Police Constable. 29 In May, June and July 2000, the applicant was recorded as having days off work for various reasons, including a "motor vehicle accident" off-duty and reported "Common acute illness" and "Cold/Flu." The certificates were from his General Practitioner, Dr Fong. 30 On 8 August 2000, while on-duty, Senior Constable Peter Robinson and the applicant were called to attend a domestic incident. The report by Constable Robinson of the incident (the COPS report) stated: The defendant was finally followed along Luxford Road, where he was riding along the footpath. Police then drove to a position in front of the defendant, and pulled into a driveway. The defendant was forced to ride into the front yard of 158 Luxford Road. Constable Allchin then immediately got out the passengers side of the police vehicle. The defendant was then approached, at which point he got off his bicycle and pulled a knife from his person. The defendant then motioned the knife in the direction of Constable Allchin, and moved towards him. At this time Constable Allchin was about three meters away from the defendant. The actions of the defendant caused Constable Allchin to fear for his safety and take action by moving away from the defendant, and back towards the police vehicle. The knife was observed to be about 25 to 30cm in length. There was no reference to the incident in the applicant's police notebook. 31 By 26 October 2000, within five months of his appointment the applicant had taken 88 hours of sick leave. The applicant then continued to take further sick leave on a number of occasions. 32 On 31 December 2000, the applicant was counselled regarding the Police Service Code of Conduct and Ethics and the consequences of a failure to comply. This occurred as a new code had been introduced into the Police Service. 33 On 7 January 2001 and 13 April 2001, the applicant reported injuries at work to his wrist and a sprain. 34 On 10 May 2001, the applicant applied for approval to undertake secondary employment. He wrote: I have a current contractor's licence, which enables me to carry out the task of completing maintenance (handyman work). He anticipated, in his application, he would work mostly from 9am to 5pm on rest days and at weekends. 35 On 12 May 2001, the applicant, after one year of service as a Probationary Constable, was confirmed as a Constable in the NSW Police Service. 36 On 14 and 21 May 2001, the applicant took further sick leave for "common acute illness/virus cold/flu." 37 On 25 May 2001, the applicant was granted approval for secondary employment. 38 On 1 August 2001, the applicant reported a further work injury when he was "spat upon" while on-duty. 39 On 21 August 2001, the Staff Administration Officer at the Mt Druitt Local Area Command received a memorandum from the employment office noting the applicant had time off work on more than five occasions in the prior 12 months and it was suggested there should be a discussion with the applicant as to his sick leave absences. The Officer was asked to "ascertain if special circumstances exist, chronic illness or an ongoing health pattern". 40 On 15 December 2001, the applicant was counselled as to his poor performance when on-duty. Failures addressed included his failure to properly record incidents in the COPS reports. Such failures were recorded as "bordering on incompetence if not neglect". It was recommended "the Constable be placed on a Remedial Performance Agreement and that he not be placed in any position of senior person on a car crew". It was noted the applicant had been spoken to about matters of a similar nature on an informal basis before the written report. The applicant was, therefore, given a placement out of frontline duties and a restriction was placed upon him to ensure he was not in a responsible policing role. 41 On 21 December 2001, the applicant took further sick leave. 42 On 27 December 2001, the applicant attended Penrith RSL Club whilst off-duty. Whilst playing a gaming machine, he was seated alongside another club patron who was with her female friend. The applicant, it is asserted, was continually thumping the buttons on the machine and swearing. The applicant had a payout on his machine and realised that the amount on the receipt was incorrect. The applicant called the attendant and the mistake was rectified. The patron, Ms Hebb states: "When the attendant walked away he turned to me and said "Lucky I am a copper, I could have her charged" I said "Your not worthy of being a copper". He said "What?" I said "Your not worthy of being a copper the way you are belting the machine like that." He said "You must be from Bidswill cause that is where I do my beat. I said "No, I am not from Bidwill". He said: "Yeah cause your one of those lesbos." Ms Hebb reported the incident to the manager and she stated: He looked at me and then went to a bag that he had and pulled out a wallet. He opened up his wallet and I saw a police badge. I have seen police badges before and I automatically recognized (sic) the badge. He said "This is my police badge, here is my number and I work at Mt Druitt Police Station." 43 On 29 December 2001, the applicant took sick leave for a "virus." 44 On 15 January 2002, the applicant entered into a Remedial Performance Agreement for three months due to the performance issues raised. He was sent to serve with the Parramatta Transit Service. However, he did not begin that service until 23 March 2002. 45 On 4 February 2002, the applicant participated in an electronically recorded interview regarding the allegation of misconduct at Penrith RSL. The applicant admitted he called a patron "a lesbos" and he had produced his police badge to staff members while off-duty. He asserted he felt intimidated by the actions of the security guard who had been called. On the production of his police badge he said to the security guard: I am going to have to charge you with intimidation, intimidating police because obviously that, we are police officers twenty-four hours a day so therefore I can do that. He explained at the interview: I have a lot of pressure here at work and a lot of pressure with personal matters, matters involving my girlfriend Rachel at her employment which was affected immensely and I was intoxicated as well, which was no excuse really...my position should come first, it does in general. 46 On 10 March 2002, the applicant reported a sprain to his hand and on 16 March 2002, the applicant took further sick leave. 47 On 23 March 2002, the applicant commenced secondment duties at Parramatta Transit Police. 48 On 27 March 2002, he took further sick leave. 49 On 15 April 2002, the applicant was forwarded a Commander's Warning Notice regarding his misconduct arising from the Penrith RSL incident. The Notice states: Adverse findings made against you as a result of the aforementioned investigations, may be summarised as follows. · On the 27 December 2001 you acted inappropriately towards Penrith RSL Club patron Julie Hebb, in that you swore at her, called her a lesbian, acted inappropriately and threatened to arrest her. · On the 27 December 2001 whilst standing near a bar of the Penrith RSL Club you abused your authority by inappropriately producing your police identification whilst off-duty, to staff security and the duty manager of the RSL Club. Further you swore at these persons, telling them to "fuck off". Further: · You are currently subject to a work performance programme due to a number of internal performance issues such as late submission of COPS entries and difficulty in recording written information. I have decided it is appropriate to deal with your misconduct by way of warning notice and supplementary management action. That management action requires - · You be counselled in respect of your misconduct; · You be subject to assessment by the Healthy Lifestyles Branch in respect of perceived alcohol and gambling problems; · You be subject to a short secondment with the Equity and Diversity Branch so that you may receive guidance concerning treatment to be accorded homosexual persons. You should clearly understand that continued unsatisfactory conduct and/or poor performance of duties may result in further management action, which may entail consideration of reviewable action under section 173(2, (sic) of the Police Service Act 1990 or removal under section 181D of the Police Service Act 1990. 50 On 24 April 2002, the applicant was referred to the Healthy Lifestyles Branch in respect of perceived alcohol and gambling problems noted during the complaint investigation into the Penrith RSL Club incident. 51 On 12 May, 12 June, 24 June, 11 July, 22 July 2002, the applicant took further sick leave generally for "common acute illness" or "cold/flu". 52 On 16 May 2002, the applicant was granted part-time employment of 36 hours per week and working on a fixed roster. This was granted on his application to assist his responsibilities as a father. It was a short term arrangement. 53 On 2 July 2002, the applicant's Remedial Performance Review was extended for a further three months due to many incidents of unsatisfactory work and performance reviews at the remedial placement. 54 On 25 July 2002, the applicant was given a short secondment from the Trainee placement for Guidance Counselling concerning the "treatment to be accorded to homosexual persons." This referral arose from the Penrith investigation and the use of the word "lesbos." 55 On 26 July 2002, a counsellor of the Drugs and Alcohol Unit with the Police Service Healthy Lifestyles Branch to whom the applicant was referred for an assessment for alcohol dependence (as recommended on 24 April 2002 as a result of a complaint investigation) concluded there was no evidence the applicant was dependent on alcohol but it was noted the applicant consumed alcohol in a "binge pattern" at least once a week. 56 On 22 August 2002, the applicant failed to keep a follow-up appointment with the Healthy Lifestyles counsellor regarding his alcohol abuse. 57 On 28 October 2002, the Commander at Mt Druitt contacted the Rehabilitation Branch about the applicant. The Rehabilitation Branch's file on the applicant begins on this date. 58 On 20 November, 2 December, 5 December, 11 December, 21 December, 20 December 2002 the applicant reported further injuries to his employer. On each occasion his report mentioned an injury to the left wrist saying there was "a scuffle with an offender (which) aggravated an original injury on 20 November 2002 and a ganglion arm." 59 On 2 January 2003, the applicant, who had been on sick leave from 20 December 2002 was rostered to attend work. He failed to attend. He returned to work some time at the end of January 2003. 60 On 21 April 2003, he reported an injury to his right index finger during an arrest. 61 On 9 June 2003, the applicant was at the Penrith Plaza Shopping Centre with his brother-in-law. Security Officers were called to speak to his brother-in-law who had been observed hitting and kicking a telephone booth. The applicant abused the security guards and revealed he was a police officer. He admits he was drunk at the time. 62 On 10 June and 23 June 2003, the applicant did not attend work and took further sick leave. Two certificates were presented by the applicant for these dates. One certificate said he was fit for light duties, the other certificate revealed he had fractured his right ankle and foot and was totally unfit. They were certificates from different doctors in the same practice. 63 On 7 July 2003, the applicant was interviewed regarding the Penrith Plaza incident. Then, on 17 July 2003, the applicant was interviewed for an internal investigation. Further interviews were conducted on 21 July 2003 and 7 August 2003. 64 On 12 August 2003, the applicant produced a medical certificate for "anxiety" from Dr Fong. This was the first time anxiety was raised in any report. 65 On 6 September 2003, the applicant commenced long term sick leave. 66 By 8 September 2003, however, the applicant had exhausted all leave entitlements including sick, annual leave and rest days. 67 On 9 September 2003, Dr Fong (the applicant's General Practitioner) issued the applicant with a medical certificate with a diagnosis of "severe anxiety and alcohol abuse" and gave him leave up until 23 September 2003. 68 On 11 September 2003, while on leave, the applicant made a workers' compensation claim claiming he was injured from "numerous events accumulative and for stress and psychological injury." He was referred to the Rehabilitation Section of the New South Wales Police Service by the Police Association with the notation "Long term abuse, numerous events, cumulative death threats on the job, assaults and -, mental depression, severe anxiety and alcohol abuse." 69 On 12 September 2003, the Rehabilitation Branch of the Police Service, sent a facsimile to Dr Fong saying that the applicant: . . . expressed a desire to see a psychiatrist who knows about policing. I have given him the name of a psych who used to be a police officer. His name is ... and his address is -.... Craig will see you...for a referral. The rehabilitation officer's handwritten file note records: The applicant stated that his problems have arisen by mismanagement by supervisors - management - has had numerous events, that is blood contact, death threats, assaults, et cetera which he feels were not dealt with correctly by management. 70 It appears the Rehabilitation Branch and the Healthy Lifestyles Branch were aware the applicant had problems with alcohol. 71 On 13 September 2003, the applicant applied for Special Sick Leave. He referred to "his substantial physical and psychological damage from one event to another". 72 On 16 September 2003, special sick leave was allowed by the Commander of the Transit Police pending a Government Insurance Office investigation of his claim. 73 On 22 September 2003, the applicant was sent a letter to inform him his approval to engage in secondary employment was withdrawn. The applicant asserts he did not receive the letter. Detective Chief Inspector Randall, Acting Local Area Commander, Mt Druitt informed the applicant over the telephone on 22 September 2003 of the withdrawal of his approval to perform secondary employment. 74 On 23 September 2003, as to the claim for physical and psychological damage, the Commander at Parramatta Transit wrote to Mr S. Christey at the G.I.O as follows: To: Simon Christey From: Philip Watson Date: 23/9/03 Craig Allchin was temporarily transferred to Parramatta from Mount Druitt for 5 months + has now returned to Mount Druitt 21/9/03. It would appear that the long term incidents go back to his position at Mount Druitt. He only put in the claim while here at Parramatta. P Watson 75 From the above correspondence it appears the applicant continued to work with the Transit Police, when not on sick leave, from 22 March 2002 to 21 September 2003, some one and a half years. 76 On 24 September 2003, a medical certificate from Dr Fong was presented for time off for "anxiety". 77 On 5 October 2003, while off-duty, the applicant was ejected from the Kingswood Sports Club where he attended again with Ms Maher and his brother-in-law. The applicant fell off a stool because of a broken leg. Sue Gunning, Supervisor at Kingswood Sports Club, asked the applicant to leave the club after forming the opinion he was intoxicated. The applicant produced his Police Badge to Ms Gunning, Senior Constable Field and Senior Constable Robinson, both of whom were Licensing Police from St Marys Police Station. They escorted the applicant out of the club premises and as they were walking towards the foyer, the applicant turned towards Senior Constable Field and allegedly said: You are nothing but simpletons and St Marys Police are simpletons as well. 78 Senior Constable Paris attached to St Marys Police attended the scene at the request of Senior Constable Field. When questioned by Senior Constable Paris, the applicant said: "What another one? I am already being investigated by Mt Druitt". Senior Constable Paris was of the opinion that the applicant was "moderately to well affected by alcohol". This incident occurred during a time the applicant was on sick leave. 79 On 14 October 2003, the Rehabilitation Officer of the Police Service, telephoned the applicant. She noted: He remains off-duty. He had not heard from Healthy Lifestyles. He mentioned the Kingswood incident. They discussed the need to develop a return to work programme. The Rehabilitation Officer then contacted an officer at the Healthy Lifestyles Branch and reminded them of the applicant. 80 On 18 October 2003, at Mazepa Avenue in the applicant's neighbourhood street, a neighbour, who had driven his car at great speed down the street in which the applicant lived, was approached by the applicant and his brother-in-law. The applicant asserts he was not drunk. Police were called by the neighbours. It was asserted there was unacceptable language and behaviour exhibited. 81 On 20 October 2003, the applicant attended again at the Healthy Lifestyles Branch which had been contacted by the Rehabilitation Officer. He was offered hospitalisation for alcohol issues. He had stopped working in August 2003. 82 On 21 October 2003, the Rehabilitation Officer referred the applicant to the Healthy Lifestyles Branch again. At that stage, the applicant stated he was not well enough to return to work. 83 On 20 October 2003, another Alcohol and Other Drug Counsellor of the Police Service, interviewed the applicant and reported on 24 October 2003. She made an assessment from the applicant's history and his alcohol intake. She determined the applicant's average weekly alcohol intake was above that recommended by the National Health and Medical Research Council for a low level of risk to health. The applicant was given advice on the recommended intake levels and tips for drinking in moderation. He was also offered in-hospital treatment but he stated he wished to try to reduce his intake through his own efforts. 84 On 27 October 2003, a further certificate from Dr Fong gave leave for the applicant on the grounds of "alcohol dependency and stress". 85 On 10 and 11 November 2003, the Police Service conducted surveillance on the applicant which revealed he continued to perform secondary employment. He was not performing police duties and was on sick leave at the time of the surveillance. His permission to perform such work had been withdrawn. 86 On 12 November 2003, the Police Service had photographic evidence of the applicant carrying out maintenance work, sealing wall joints. 87 On 14 November 2003, a further certificate from Dr Fong recorded "anxiety and alcohol dependence". 88 On 6 December 2003, the applicant was informed of the internal investigation results from the inquiry into the Kingswood Sports Club incident. The report states: It is proved on the balance of probability that constable Allchin misused his office by producing his police identification badge to Sue Gunning at Kingswood Sports Club on 5 October 2003 in an effort to influence her decision to have him leave the club due to intoxication. In relation to this issue I make an Adverse Finding. It is proved on the balance of probability that Constable Allchin behaved inappropriately towards Senior Constable Field and Robinson at the Kingswood Sports Club on 5 October 2003. In relation to this issue I make an Adverse Finding. 89 On 17 December 2003, further certification from Dr Fong recorded "anxiety and depression". 90 On 18 December 2003, the applicant was contacted by a Mt Druitt police officer who noted the applicant was difficult to understand and possibly affected by alcohol. 91 On 23 December 2003, the applicant attended an electronic interview regarding the Mazepa Avenue incident. He argued he was not under the influence of alcohol at the time. He agreed he produced his Police Badge. He denied there was an abusive tone to any conversation he had with the driver of the speeding car or his family. 92 Also addressed at the interview was the secondary employment still being undertaken by the applicant. He denied receiving the 22 September 2003 letter and did not recall the content of the conversation with the Detective Chief Inspector Randall. He agreed he was intoxicated at the time of the conversation. He refused to provide information as to his clients when requested to do so at the interview as he asserted the police had approached one client already and informed them he was a police officer. This, he asserted, posed a threat to the safety of both himself and his partner. He agreed he had, while on sick leave on occasions performed maintenance work and his company sent invoices for that and other work. 93 On 23 December 2003, the Rehabilitation Branch spoke to the applicant and recorded the applicant who in conversation revealed he had consumed 10 stubbies the evening before, and revealed generally that he drunk about 13 stubbies a day. He said he recognised he had a problem. 94 On 28 December 2003, Dr Fong issued a certificate saying the applicant needed to continue his secondary employment and should work in a less stressful area than Mt Druitt. 95 On 2 February 2004, Dr Fong issued another certificate regarding "depression and anxiety". 96 On 15 March 2004, a further certificate was issued from Dr Fong for anxiety and depression. 97 On 8 April 2004, a Rehabilitation officer visited the applicant. She noted he was continuing to drink. She recommended the Healthy Lifestyles Branch make a follow-up call. 98 On 24 May 2004, a Rehabilitation Officer telephoned the applicant's General Practitioner, Dr Fong, who revealed he had not seen the applicant "for months." 99 On 1 November 2004, the Rehabilitation Officer telephoned Dr Fong again. Dr Fong revealed he had last seen the applicant in April 2004 and then not again until 22 September 2004. Dr Fong and Dr Choat (in the same practice) both expressed concern that they were worried and the applicant was "unstable due to post traumatic stress disorder". Dr Fong, on inquiry, agreed the applicant had not been referred for specialist treatment or counselling for his problem. 100 On 11 November 2004, the Rehabilitation Officer wrote to Detective Chief Superintendent Hudson, the Area Commander of the Mt Druitt area since mid July 2004. She informed Detective Chief Superintendent Hudson of her talks with the applicant, that he had not contacted the Police Service Drug and Alcohol Counsellor at Healthy Lifestyles and that he had not been referred for specialist treatment, and that he had not sent in medical certificates and had not been to see his General Practitioner, Dr Fong. 101 On 3 December 2004, Detective Chief Superintendent Hudson, wrote to the applicant that he had not produced any certificates since 14 April 2004 and Detective Chief Superintendent Hudson directed the applicant to produce any such certificates within two weeks. 102 On 20 December 2004, Detective Chief Superintendent Hudson made an appointment to meet with the applicant on 24 December 2004. Detective Chief Superintendent Hudson noted "my suspicion is that he is still engaged in secondary employment despite previous directions to cease." Detective Chief Superintendent Hudson spoke to the applicant and noted: ... medical certificates had not been received from him since 14 April 1004. He stated that he had them. I informed him that unless he provided them to his employer, me, he would not be paid for his periods of absence as we had no way of confirming his illness and absences would be considered unexplained. An appointment was made for 3pm 24/12/04 for me to meet with him at his him. He would not make it earlier as he indicated he had 'commitment's. My suspicion is that he is still engaged in secondary employment despite previous direction to cease. ALLCHIN immediately faxed me a medical certificate dated 17/11/04 for the period 17/9/04 to 17.1.05 (backdated with a manual modification to start of sick leave date). Detective Chief Superintendent Hudson therefore immediately had faxed to him a medical certificate dated 17 November 2004 for the period 17 September 2004 to 17 January 2005. 103 On 20 December 2004, Detective Chief Superintendent Hudson, immediately upon receipt of a faxed medical certificate with a hand written back dated entry, telephoned Dr Fong. He noted as follows his communication with Dr Fong: Spoke to Dr Anthony Fong. An amendment to the medical certificate faxed by Allchin was described to him and indicated it sounded like self-adjustment. He was asked to elaborate on the reason for Allchin's absence and his medical certificate only indicated one; PTSD (post traumatic stress disorder). He stated that he (Allchin) had indicated he was not fit to go back to work and that he had a drinking problem et cetera et cetera? . I informed Dr Fong that drinking was not a work-related issue and that he had been offered alcohol counselling by the Police Force on two occasions. He, Dr Fong, indicated that he believed the police or the insurer should put their foot down with Allchin as he was 'exploiting the system'." Dr Fong was asked if he believed this, why was he issuing certificates. He became guarded and indicated that if a letter was forwarded to him he would reply in writing. He did indicate further that he believed any management plan taken by the police would be detrimental to Allchin's health although he had been told by Allchin that he had a solicitor "waiting in the wings" if challenged by police. 104 On 17 January 2005, the applicant failed to provide further medical certificates. 105 On 1 March 2005, Detective Chief Superintendent Hudson recommended the nomination of the applicant for a s181D removal and that it should be progressed. 106 On 15 March 2005, the applicant attended a psychological assessment by Dr Anna Catarino, a consulting psychologist, referred to her by Dr Fong. She then wrote a report to the GIO. Dr Catarino took the following history from the applicant of an incident when he was called to apprehend a co-offender with a knife. Mr Allchin stated that at the time no one asked if he was alright. He stated that at the time he felt anxious and kept thinking "I could have killed him." He stated that he thought the man was "going for my throat" and there was the potential for serious injury to his throat and chest. ... He stated that he could not stop thinking about the situation and got to the stage that he began drinking in an attempt to control the symptoms. He stated that when he saw people that resembled (the) man he became anxious. Mr Allchin stated he began to take days off work and become verbally aggressive. He then attempted to avoid work so applied for part time position to recover from anxiety and workout what was happening to him. ... Mr Allchin stated he was drinking 5-15 beers and a half a bottle of port and taking Penadine Forte. He stated that the behaviour continued for many months and he attempted self-harm however he stated his behaviour is a little better now. However he continues to drink light beer. He stated that he sees things that do not exist and has mood swings. He stated he felt 'mad' as he felt urge to talk to himself and answer himself. Symptoms: Self-Harm Disturbed sleep throughout night Flashbacks Hypersensitivity Mood swings Anger Depression Increased Alcohol Decreased/increased appetite at night Anxious shaking She determined it was "imperative he receive psychological treatment as soon as possible and . . . a psychiatric consultation". She advised he was "at risk". 107 On 16 March 2005, the applicant had been sent to see a psychologist, a Dr Sawyer, referred by the GIO regarding his claim made in September 2003. Dr Sawyer, before seeing the applicant, made inquiries and took histories as follows from Detective Chief Superintendent Hudson, the Rehabilitation Co-Ordinator and the General Practitioner, Dr Fong. On 9 March 2005, Detective Chief Superintendent Hudson informed him: · He had only recently been appointed as the Local Area Commander · He had not had face-to-face contact with the applicant but based on feedback it was the Commander's understanding. · The applicant had experienced alcohol-related problems for some time. · The applicant had been offered counselling on two occasions and declined it. · A number of complaints had been made about the applicant's conduct when off-duty and again alcohol consumption was involved. · The applicant had ongoing domestic matters. · There were concerns that the applicant may be exploiting the system. Detective Chief Superintendent Hudson noted that he was aware rehabilitation personnel had had some contact with the applicant but was unclear what was occurring in relation to his return to work. Dr Sawyer then contacted the Rehabilitation Officer on 17 March 2005 and noted: · She had had difficulty engaging and promoting the rehabilitation process with the applicant. Dr Sawyer on 17 March 2005 contacted Dr Fong who stated: · The applicant appears to experience longstanding alcohol-related problems. · Suspected the applicant harboured a number of strong negative feelings towards New South Wales Police Service compromising his ability to engage in the rehabilitation process and return to work. The applicant was interviewed by Dr Sawyer and gave a history of the "knife" incident and having dreams. He asserted, his psychological and alcohol abuse were grounds for his stress related leave. Dr Sawyer diagnosed the applicant's condition as "alcohol abuse." He opined he was not confident that workplace experiences were the substantial cause of the applicant's alcohol abuse and his alleged psychological difficulties. 108 Throughout March, April and May 2005, the applicant continued on leave with certification from Dr Fong. 109 On 5 May 2005, the applicant's workers' compensation claim was denied by the G.I.O based on Dr Sawyer's report. 110 On 7 June 2005, Detective Chief Superintendent Hudson signed a medical referral to Dr Kirby, the Police Medical Officer, requesting an opinion as to whether the applicant was "psychologically stable enough" to be served the disciplinary documents: that is the Notice relating to his removal, and if not, whether he should be progressed to medical discharge. The Detective Chief Superintendent Hudson wrote: Recent sick leave history if appropriate: Has been on sick leave since 12.8.03 with an alleged psychological condition. On 31 May 2005 he was informed that the Treasury Managed Fund had declined his claim that his alleged illness was work related. . . . Reason for Referral? To ascertain whether ALLCHIN is psychologically stable enough to be served disciplinary documents relating to dismissal and if not whether he should be progressed to medical discharge. Matter discussed with Doctor KIRBY - PMO on Friday 3/6/05 Brief Background The officer has been on sick leave since 12.8.03. His claim for a work related psychological injury was declined by the Treasury Managed Fund on 31 May, 2005. He had an extensive complaint history immediately prior to taking his sick leave involving excessive alcohol intake, declaring is office as a police officer whilst intoxicated and engaging in unauthorised secondary employment whilst on sick leave. These matters were progressed to the Internal Review Panel and the Commissioner has subsequently signed a notice under Section 181 D of the Police Act for service on ALLCHIN for potential dismissal. Rehab Coordinator, Denise PUGH made inquiries with his psychologist Anne Caterino who indicated service of such documents could be detrimental to ALLCHIN's health as she considered him potentially suicidal. Psychiatrist Greg Sawyer, GIO, has examined ALLCHIN and believes he is manipulating the system. Sawyers report is the basis declining the claim by the TMF. . . . What outcome are you looking for from this referral? To ascertain whether ALLCHIN is psychologically stable enough to be served disciplinary documents relating to dismissal and if not whether he should be progressed to medical discharge. 111 On 9 June 2005, the applicant was advised by Detective Chief Superintendent Hudson that he should produce medical certificates or his absence from duty would be referred to as "leave without pay." He also was advised backdated certificates would not be accepted. 112 On 27 June 2005, Dr Kirby saw the applicant. He took a history that the basic cause of the applicant's problem was the incident on 8 April 2000 when the applicant asserted he was "attacked with a butchers' knife." The doctor determined the applicant needed a referral to a treating psychiatrist. The Doctor opined the applicant was not able to be served with the Notice on the basis of his interview. Dr Kirby opined he had: "reservations in advising that Allchin could withstand being involved in the disciplinary process at present." The Doctor described: "symptoms of a major depressive illness." 113 On 1 July 2005, another appointment was made with Dr Kirby for 3 August 2005. It was then re-scheduled ahead to 1 August 2005. 114 On 28 July 2005, the applicant advised the Rehabilitation Officer by email: Will not be able to attend the appointment made for 1 August 2005. I have a family matter which is pending in (court). I have to arrange legal representation and I have (sic) not attended the psych due to financial hardship. This is one of the requests before returning to see the doctor. I am very unwell at the moment and hope that he could see me at the end of the month. This will give me the chance to sort the family matter and attend the phyc. I hope you and the doctor are understanding and can possibly do this for me at this very stressful time. Regards Craig Allchin. The applicant was then advised as follows: The appointment was rescheduled for 29 August 2005 . . . would see Dr Li instead of Dr Kirby as scheduled originally. He will be leaving the Service on 12 August." 115 On 31 July 2005, Detective Chief Superintendent Hudson informed the applicant his sick leave would cease on 1 August 2005. 116 On 11 August 2005, another General Practitioner, Dr Popovic wrote a medical certificate for the applicant certifying he was suffering from "post traumatic stress disorder" and giving him leave from 11 August 2005 until 11 October 2005. 117 On 29 August 2005, the applicant failed to keep the appointment with the new Police Medical Officer, Dr Li. 118 On 30 August 2005, the applicant failed to keep the rescheduled appointment made with the Police Medical Officer, Dr Li, although it is not clear whether he was informed of the later appointment. 119 On 31 August 2005, the Rehabilitation Officer emailed the applicant as follows: How are you. I am just making a follow up on your PMO appointment. You were scheduled to see Dr Li on 29 August 2005 at 11 am as requested. Please feel free to contact me on .... so I can arrange another appointment for you. I hope everything is going well at your end. Your co-operation is greatly appreciated. 120 On 31 August 2005, the applicant, signed with the solicitors of the Police Union an Application for Medical Discharge with a claim for his left wrist injury, anxiety, depression and his post-traumatic stress. 121 On 20 September 2005, the applicant received a medical certificate from Dr Fong, covering the period 20 September - 1 October 2005 stating "persistent pain in the left wrist, three years, pain over the right wrist, one week." 122 On 21 September 2005, the applicant emailed the Rehabilitation Officer: I am sorry that I missed the appointment. I had my court matter on the 30th and an appointment with my solicitors, and I totally forgot the appointment. Could you reschedule a new appointment. Also, if possible, make th(e) matter at the end of the month. I have been struggling (sic) to find the fiancé (sic) to attend the psych appointment. The whole reason to reattempt (sic) the PMO. Also could you send a copy of the new appointment to the cammander (sic) of Mt Druitt Police Station. His name is Peter Hudson. Many thanks. Once again sorry. Hope to hear from you soon. 123 On 25 September 2005, the applicant was sent to see Dr Christopher Canaris by his solicitor. He took the following history: Your client is a thirty three year old single Police Officer who is applying for a medical discharge from the NSW Police. He told me that he had experienced a number of traumatic incidents though the main one involved an attempt to subdue a man armed with a knife after being called to a domestic incident in August 2000. The offender left the scene "and seemed to have some sort of mental illness and was known to be armed." The man rode towards him on a push bike and leaped off holding a kitchen knife. Your client was frozen not knowing what to do. He had a baton in his hand an told his assailant "to get back, get back." He seriously considered having to shoot him. He was able to get away and a siege ensued. Eventually the offender was talked down "and he got off." He was charged with common assault ("It should have been attempted murder") and I got to pick him up about a couple years later. He didn't recognise him at first though "the stupid prick had a screwdriver in his hand this time." His initial reaction was one of "concern" though it seemingly "didn't affect me." As the weeks and months went by, he began to become increasingly frightened. He became "on edge all the time" and would check doors and windows in his house multiple times. He opined the applicant suffered from "chronic post-traumatic stress disorder with obsessive-compulsive component". 124 On 26 September 2005, the applicant emailed the Rehabilitation Officer asking whether a further appointment with Dr Li had been made. 125 On 5 October 2005, Detective Chief Superintendent Hudson determined to serve the applicant the s181D Notice which had been sent to him by the Commissioner on 21 March 2005. The changed circumstances in which the Notice was served when in June 2005, Dr Kirby found the applicant was unfit to accept the Notice, were canvassed with Detective Chief Superintendent Hudson in evidence in reply as follows: Q. You were asked I think some questions perhaps by the applicant, certainly by her Honour, about the lapsing of time between the signing of the 181 D Notice by the Commissioner in March 2005 and it being served on the applicant in October 2005? A. Yes. Q. I think you have given some explanation as to why that was because of concerns about whether or not the applicant is fit to service, is that correct? A. Yes. Q. And you say you did receive advice he was fit to receive the Notice? A. Yes. Q. From whom did you receive that advice? A. Police psychologist Jennifer Planica. Q. And roughly when did you receive that advice. A. If I can refer to my diary I probably have a note of it. Q. Certainly if you have your diary handy? A. I spoke to Jennifer Planica on the morning of 5 October 2005 and I served the Notice that afternoon. There is no evidence Ms Planica saw the applicant. Detective Chief Superintendent Hudson said in explanation: A. . . . she didn't think he was a risk to himself to serve the process on him and also the fact that Craig was totally aware through being told by the Police Medical Officer that the reason for the visit to the PMO some months prior was for his capacity to be served so he was well aware of the existence of the process and on that basis she did not see any restriction to serve him. 126 On 5 October 2005, the same day the psychologist opined the applicant could be served the s181D Notice issued by the Commissioner on 21 March 2005, was served on the applicant. Detective Chief Superintendent Hudson gave the instruction to serve it. 127 On 6 October 2005, solicitors for the applicant wrote to Detective Chief Superintendent Hudson requesting an "extension" of the applicant's Special Sick Leave. 128 On 11 October 2005, Detective Chief Superintendent Hudson commented to the GIO on the applicant's workers' compensation claim, noting the timing of the claim for workers' compensation for the "wrist" injury appeared to coincide with the applicant's sick leave entitlements being exhausted and "this was the first report of any alleged pain he has been suffering for the past three years as indicated in the medical certificate". 129 On 28 October 2005, the applicant failed to attend the follow up appointment with Police Medical Doctor, Dr Li. 130 On 22 November 2005, solicitors for the applicant, replied to the s181D Notice and sought a medical discharge. 131 On 23 November 2005, the Employment Management Branch, prepared a recommendation sent for the Commissioner to determine whether a section 181D Order or a Commissioner's Warning Order should be issued, or whether other action should be taken. 132 On 29 November 2005, Commissioner Moroney considered the submission and signed the approval that the applicant be removed from the New South Wales Police. 133 On 6 December 2005, Detective Chief Superintendent Hudson declined the applicant's application for Special Sick Leave. He noted: Applicant has been on long term sick. Failed to attend PMO visits when required. Claim has been declined by GIO. Has shown no desire to return to workplace in any capacity. 134 On 7 December 2005, the applicant was advised his application for Special Sick Leave was declined and he commenced leave without pay. 135 On 9 December 2005, the Statement of Reasons in support of the 181D Orders were signed by the Commissioner. The applicant's entitlements were calculated up until 20 December 2005. 136 On 13 December 2005, the applicant's solicitor indicated a review of the insurer's decision to decline liability for psychological injury had been requested and if there was no response within seven days, they would commence proceedings in the Workers' Compensation Commission. 137 On 21 December 2005, the Police Service Workers' Compensation Section stamped the application for a Medical Discharge directed to Health Services Directorate of New South Wales Police. It was, however, under a certified letter dated 13 December 2005. 138 On 21 December 2005, this application for a Review of the Commissioner's decision was filed in the Industrial Relations Commission of New South Wales. 139 On 17 January 2006, the applicant's solicitors were informed the New South Wales Police had rejected the applicant's request to be reinstated so he could pursue a medical discharge. 140 On 24 January 2006, the applicant saw Dr Wallace regarding his wrist injury claim. 141 On 3 February 2006 the liability for any impairment from bilateral wrist injury on 20 November 2002 was declined. The Applicant's Submissions 142 The applicant was self represented and makes a number of general submissions: · The applicant asserts his removal was harsh, unreasonable or unjust under s181E of the Act. · The applicant asserts he was denied procedural fairness because all of the documentation relied upon by the Commissioner, to determine the Commissioner did not have confidence in his ability to continue as a police officer, was not made available to the applicant at the time he made his submissions in reply to the Notice and before the determination of the Order because more issues were raised by the Commissioner than those in the Notice. · The applicant asserts many of the interviews conducted with him were not made available to him on transcript and at the time of the interviews he was "under the influence of both alcohol and medication, suffering depression and anxiety and was not fit to be interviewed at the time." · The applicant challenges specifically the facts relied upon by the Commissioner related to the events specified as well as his failure to answer questions at an electronically recorded interview conducted related to his secondary employment. · The applicant asserted his departure from the Police Service should have been "more properly dealt with by way of a hurt on duty medical discharge rather than removed pursuant to s181D." 143 The applicant required for cross examined 15 witnesses as to the specific allegations alleged against him in three incidents - the first at Penrith Plaza Shopping Centre; the second at Kingswood Sports Club and the third at Mazepa Avenue, Penrith. He challenged each witness and their interpretation of the above events without denying the incidents occurred. 144 The applicant also challenged the withdrawal of his secondary employment approval related to the termination of his employment which work he did not cease and which issue was the focus of an interview, electronically recorded, in which he allegedly failed to answer questions as directed by those in authority in accordance with the rules of the Service. The Commissioner's Submissions 145 Mr Searle, of counsel, appeared for the NSW Police. He asserted despite the cross examination of all of the witnesses, the facts are established as asserted in the Notice. He further asserted the events relied upon in the Notice were · 9 June 2003 incident at the Penrith Plaza Shopping Centre · 5 October 2003 Kingswood sports club incident · 18 October 2003 Mazepa Avenue, Penrith incident · And unauthorised continuation in secondary employment · The refusal to answer questions when directed. As these were the matters upon which the Commissioner for Police in these proceedings relied upon, and were the basis on which the decision to remove the applicant from the Police Service, the Order to remove should be maintained and not interfered with. 146 Generally the respondent attacked the credibility of the applicant. The respondent asserts the applicant's explanation offered on each incident relied upon in the Notice was not to be believed. Particularly, the respondent contends there was "no clear or direct evidence that the applicant is currently or was at the relevant time suffering from alcoholism such that this would entirely excuse his behaviour". 147 Further reliance is placed by the respondent on the endeavours taken by the Police Service to refer the applicant to its welfare services or, alternatively, to inform him of the existence of services which the applicant chose not to access. 148 The respondent submits the applicant's behaviour reveals a lack of insight into himself and a lack of understanding of the requirements of the Service, the Commissioner and the community from those serving in the New South Wales Police. It demonstrates the applicant's unsuitability as a police officer (which unsuitability is highlighted throughout the evidence) and the respondent submitted therefore the applicant should be removed. 149 However, the Commissioner's Statement of Reasons also referred to a number of other matters as well as these extra two incidents which the respondent submitted were referred to as "additional material" which supported the decision to remove. The respondent submitted the extra matters should be viewed as indicative of, and in support of, the finding that the particular five incidents established the applicant "was not suitable due to his behaviour, his poor attitudes and conduct on or off-duty over a sustained period of time". 150 The respondent conceded in the Statement of Reasons there is reference to some matters not in the original Notice. They are: · An incident at the Police Academy while the applicant was in training · An incident on 27 December 2001, where while off-duty the applicant acted inappropriately towards a patron of the Penrith RSL Club. The respondent submitted such incidents were only referred "as illustrative of the conduct and attitude of the applicant and demonstrative of the fact the applicant did not possess the necessary characteristics of self-discipline and good judgement required of a policeman". 151 As to the first incident, reliance was placed on the words of the Commissioner: "I have not given it any real weight in my deliberations". As to the second incident, the respondent submitted it was indicative that the applicant abused his authority by inappropriately producing his Police identification and using offensive language. It resulted in the applicant being served with a Commander's Warning Notice on 24 April 2002. Historical weight was given to the incident. 152 Other matters mentioned such as the details of his behaviour on-duty were again only illustrative of the applicant's poor attitude over a sustained period of time, the respondent submitted. Applicable Legal Principles 153 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 applicable principles. It is therefore necessary to recite those principles. 154 The Commission in an application under s181E takes a number of matters into account. In Newton and New South Wales Police Service (No 2) (1999) 87 IR 66, the Full Bench held: 75 While s181F requires the Commission, first, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case. . . . and: 77 Section 181F picks up these notions and, in reviewing a dismissal under s 181D, imposes a statutory obligation on the Commission to consider the three matters specified in s 181F(1) before finally determining the matter. . . . ... and further: 79 The passage emphasised confirms our consideration of s 181F; that the role of the Commission is to conduct a review of the merits of the decision of the Commissioner of Police, to consider the whole of the circumstances of the matter in a way determined by s 181F and apply the statutory criteria in that situation. 155 In Van Huisstede v Commissioner of Police (2000) 98 IR 57, Walton J, Vice-President considered the role of the Commission thus: 193 . . . 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. 156 And as was further said in Van Huisstede: 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 s 181D(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. . . . 157 Not every fault in the procedure adopted by the Commissioner will require the Commission's intervention. As was said in Starr v Commissioner of Police [2001] NSWIRComm 226: 140 . . .Each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case. I consider that there are features of this case which demand a full examination of the evidence relating to the conduct of the applicant which was relied upon by the Commissioner in removing him from the Police Service, although the deficiencies in the process adopted by the Commissioner will be relevant to the ultimate conclusion as to whether the removal was harsh, unreasonable or unjust. and: 325 ... Where the applicant brings into the proceedings facts and circumstances arising after his removal which bear upon the issues to be determined those matters must be taken into account in considering whether a removal was harsh unreasonable or unjust: s181F(1)(b). It is by this means that the later conduct of the applicant bears upon the determination in this matter as to whether his removal from the Police Service was harsh, unreasonable or unjust. In any event, as properly conceded by Mr Docking, that conduct goes to the applicant's credit as a witness. 158 In the recent decision of Commissioner of Police v Dobbie [2006] NSWIRComm 285, the Full Bench endorsed the approach set out in Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 to a review by the Commission of an Order made under s 181D: 29 The decision of the Full Bench in Hosemans v Commissioner of Police (No 2) (2004) 138 IR 159 at [134]-[136] is clear authority for the proposition that the Commission's task in undertaking a review of any order made under s 181D of the Police Act was to undertake the review and make a fresh and independent decision based on all of the material before the Commission and not merely a review of whether the Commissioner's decision was correct at the time it was made. Hosemans v Commissioner of Police (No 2) also dealt with issues of onus and burden of proof saying: 131 The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s 181B of the Police Act was discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s 181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s 181F and does not offend s 181F(2). The Commission has applied the standard of proof set out in Briginshaw v Briginshaw (1938) 60 CLR 336 to allegations by the Commissioner of misconduct as the foundation for a removal order under s181D. At [184] in Starr , the Vice-President further said: 184 The applicant submitted that the Briginshaw standard should be applied in these proceedings to the assessment of any finding of alleged serious misconduct or criminal behaviour: see Wang v Crestell Industries at 463 - 464. The Commissioner did not address this question and, as such, I will approach this matter in the manner set out in Briginshaw . 159 Therefore, from the above authorities and in accordance with the provisions of the statute, it can be concluded the Commission must have regard to the cases presented by the applicant and the Commissioner, including the reply; the procedures adopted by the Commissioner; the weight given by the Commissioner to particular facts and materials; all information available in favour and against the officer as revealed in the hearing. The Commission makes a fresh and independent decision based on all the material before it. There must then be a consideration of the applicant's interest weighted with the public interest and the fact the Commissioner has made the order. The Applicant's Work History 160 The chronology detailing the applicant's work history allows a number of findings to be made. The work history reveals members of the Police Academy recommended the applicant was not a suitable candidate for the Police Service. He was, however, sworn in as a Constable after performing an extra field placement. The attitudinal issues raised by the Academy members do not seem to have been directly addressed. 161 After serving for less than one and half years as a police constable, given his failure to do the job well (with much time off in sick leave), his superiors considered he needed a Remedial Performance Review and had noted "he is starting to show signs of stress". He was referred to remedial work with the Transit Police under the Parramatta Command and was not to be given front line responsibility. He was initially appointed for three months but this was to be extended to five months given his poor performance in the remedial programme. However, the Transit records indicate he served within the Transit Police until 21 August 2003 - some one and a half years. The time the applicant was seconded to the Transit Police was not referred to in the reviews of his service before his termination. It only becomes evident from the dates in the Transit correspondence to the Government Insurance Office. 162 The applicant was referred by the Service to the Healthy Lifestyles Branch to be seen in the Alcohol and other Drug Education and Counselling Unit for "alcohol abuse/dependency". The Drug and Alcohol Counsellor saw him in July 2002. He determined the applicant's problem as "binge drinking". The applicant failed to keep a follow up appointment. There was no follow up by the Service's section. 163 The applicant took 104 hours sick leave in his first six months on-duty (from May to December 2000); in 2001, he took 66 hours. As early as August 2001, his superiors were asked whether he had a chronic illness or ongoing health problems. In 2002, he took 100 hours sick leave and in 2003, he exhausted all types of leave entitlement by 9 September 2003. From 12 August 2003 to 20 December 2005 (his last day of service) he never returned to work. He seems to have been granted special sick leave in 2004-2005. 164 Throughout 2002 and into 2003, the particular incidents mentioned in the Notice occurred. The incidents were off-duty incidents but they appear to have occurred while the applicant was still seconded to the Transit Police. However, the inquiries that were instituted into such incidents were under the auspices of his Commander at the Mt Druitt command. 165 The applicant in his reply acknowledges he was under the influence of alcohol in all but one (the Mazepa Avenue incident) of the five incidents. He gave the same evidence in the hearing. 166 The applicant continued to perform maintenance work (which had been approved as his secondary employment) without permission from the Service. He went on long term sick leave in August 2003 while still working with the Transit Police. He ceased work with them on 21 September 2003. 167 The Union advanced a claim for the applicant on 11 September 2003 related to his stress at work. The Transit Police told the Government Insurance Office that the claim related to long term incidents while at Mt Druitt but stated the claim was simply advanced while the applicant was seconded to the Transit Police. 168 The Rehabilitation Branch, in October 2003, after his claim had been lodged, contacted the applicant who had been transferred back to Mt Druitt. Records suggest he did not report for duty to the Mount Druitt Area Command. He asked for counselling. He complained about the prior counselling and requested someone who understood policing. Also contacted was the Healthy Lifestyles Branch, who had not seen the applicant since July 2002. A different Drug and Alcohol counsellor saw the applicant and determined he had an "unhealthy alcohol intake." He was offered hospitalisation "re his alcohol issues". The applicant's own General Practitioner now acknowledged his alcohol dependency and his stress at work in certificates. 169 From April 2004, while on long term sick leave, the applicant failed to send in medical certificates to the Service but he continued with his (not now approved) secondary employment. In mid 2004, Detective Chief Superintendent Hudson arrived at Mt Druitt. He noted the applicant was on long term, sick leave. He confirmed endeavours had been made to introduce a rehabilitation programme with the applicant and that all rehabilitation attempts failed. The applicant refused to return to work in the Mt Druitt Command. Detective Chief Superintendent Hudson required medical certificates and tried to encourage the applicant to return to work. 170 The Rehabilitation Branch made contact throughout 2004 and 2005 with the applicant. The applicant recorded with them a myriad of complaints. He refused hospitalisation and alternative placements. The Rehabilitation Branch spoke of its frustration with respect to trying to organise an officer's return to duties when he did not have full access to medical reports only summaries from the Government Insurance Office. 171 In March 2005 Detective Chief Superintendent Hudson then recommended, the Notice of an Intention to Terminate. This went through police procedures and was signed by the Commissioner on 9 March 2005. 172 It is the police officer's local area Commander who has the responsibility to serve the Notice. However, Detective Chief Superintendent Hudson was sufficiently concerned as to the health of the applicant to request the Police Medical Officer make an assessment as to whether the applicant was psychologically stable enough to effect service of the Notice. The Police Service's doctor, Dr Kirby, opined the applicant was not well enough to accept service of the Notice. He recommended an immediate psychiatric examination of the applicant. 173 Further efforts were made by the Police Service's Rehabilitation Branch to return the applicant to work throughout 2005, all of which failed. The medicals he attended and the Service file notations continued to refer to his complaints of "stress" and his complaints of various injuries at work. The applicant continued on long term leave from August 2003. He was served the Notice in October 2005 and removed from the service in December 2005. Alcohol and Employment 174 One issue of contention between the parties was the question of the applicant's alcohol consumption. The applicant admitted in evidence he was alcoholic during the employment but asserts he has not indulged since August 2005. He particularly asserted he was under the influence of alcohol during the particular incidents recited in the Notice (except for the Mazepa Avenue incident) and also when he received the telephone call regarding the withdrawal of his secondary employment approval and during his interviews regarding his continued work while on sick leave. 175 The respondent during the hearing made no concession as to the applicant's asserted alcoholism. The respondent however in submissions contended: there is no clear or direct evidence that the applicant . . . was at the relevant time suffering from alcoholism such that this would entirely excuse his behaviour. This submission does not seem to deny that the bulk of the evidence establishes the applicant was an alcoholic, or as that which the Police Service refers to as "alcohol abuse". 176 The applicant's behaviour at the Academy lends support to the suspicion the Service hired an alcoholic. Detective Chief Superintendent Hudson was of the view "incidents of alcohol pre-dated his joining the Service". The Healthy Lifestyles Branch during the employment offered hospitalisation given his alcohol intake. The Rehabilitation Branch struggled as to how to organise a return to work for the applicant given his unco-operative and unreliable behaviour. The applicant took all sick leave and, finally, extended sick leave during his employment. In his reply, and in evidence, the applicant clearly admits to alcohol abuse throughout 2003, 2004 until August 2005. 177 The applicant's work attendance, once he was made a Constable, was very unreliable. His on-duty performance was found wanting very early in his service. Medical practitioners noted his consumption of alcohol in reciting his various complaints and asserted injuries. The medical histories recited significant alcohol consumption. The Government Insurance Office psychologist in March 2005 found the applicant had long standing alcohol-related problems. The Police Medical Officer, in June 2005, found the applicant needed a treating psychiatrist and was not stable enough to be served the Notice. 178 Various senior officers, in dealing with the Constable noted alcohol was an element in his behaviour and sent him for help. It is clear the applicant refused help when it was offered to him by the Service. The applicant was his own worst enemy. Nonetheless, I am satisfied, taking into account the history, that alcohol clearly affected the applicant's behaviour while on and off-duty. 179 I am satisfied, taking into account all the evidence including the significant time taken as sick and other leave, and given the applicant's behaviour on and off-duty, that the applicant was alcohol dependant probably throughout his employment but certainly throughout 2003, 2004 until 9 August 2005. The Commissioner's Notice 180 Much time in the hearing was spent with the applicant challenging details of the incidents relied upon by the Commissioner in the s181D Notice. The applicant required the respondent be put to proof on the details relied upon in the recitation in the Notice of the particular events. It is of note the applicant in the hearing directed his attention to the incidents in the Notice as required by the statute. Given the time taken by the applicant in challenging details of the incidents, it is necessary to make findings on issues he put into dispute arising from those incidents. · The Penrith Plaza Shopping Centre, 9 June 2003 The facts as pleaded in the Notice, I accept are established. The applicant asserted that he was not wrong to produce his police identification. Given the behaviour of the security officers who were holding down his brother-in-law, the applicant maintained that he was justified in demanding who they were as he had difficulty identifying they were security officers because as they admit they had jumpers/jackets over their uniform. The applicant says he had difficulty "to an extent". He later claimed that his behaviour "was appropriate to a point". I reject the applicant's submissions and find the applicant's behaviour was that as asserted in the Notice. While I accept the applicant was off-duty, and under the influence of alcohol, I further accept the security officers may not have been easily identified. Nonetheless, I also accept the applicant inappropriately produced his police badge to the security guards and was under the influence of alcohol at the time. · Kingswood Sports Club Incident, 5 October 2003 I accept from the evidence of Ms Suzanne Gunning and Senior Constable Scott Robinson and Constable Paul Field and Constable Luke Moore that the incident occurred as described in the Notice. I accept the applicant while off-duty, inappropriately produced his police badge and behaved inappropriately to licensing police who were on the premises and inappropriately to the female patron. Although it was disputed, I accept the applicant was under the influence of alcohol. · Mazepa Avenue, Penrith 18 October 2003 I accept the applicant misused his office in revealing he was a police officer when dealing with a neighbour about his manner of driving in excessive speed in the applicant's local streets. It was alleged that Allchin acted in an unprofessional manner when speaking to his neighbour and failed to take immediate action when his brother in law began using offensive language. I find those allegations are established. I accept there is no evidence this incident did involve the applicant being under the influence of alcohol. The respondent submitted that the incident reveals the inappropriate behaviour of the applicant occurred without the influence of alcohol. · Unauthorised Secondary Employment, 22 September 2003 The applicant asserts he was unaware of the removal of his permission to perform secondary employment on 22nd September and did not know of the withdrawal of his permission until 22 December on receipt of a second letter. The applicant agreed he had a conversation with Chief Inspector Randall on or about 22 September, but asserts he was intoxicated and could not recall being told of this permission being withdrawn. · Refusal to Answer in Formal Investigation The applicant during an investigation into his continuing to work in secondary employment was required to answer questions in the investigation. The applicant said he was in fear of what Chief Inspector Randall would do with the information. The inspector agreed he had attended premises at which the applicant had done secondary employment work and had made inquiries about the applicant but he asserted "at no time did I identify Mr Allchin as a police officer". While it may be open as to when the applicant found out his secondary employment was withdrawn, I nonetheless, accept that applicant refused to answer questions at the interview in accordance with requirements of the Police Codes. I do not accept that, even if it was revealed he was a police officer doing other work, that is a sufficient reason for refusing to answer questions in an investigation interview. The applicant revealed his attitudes when in denying he had purposely breached the police policy for secondary employment, he stated: I had to do it, because I had ends to means which is, it would impede on my financial and mental and physical and hinder my rehabilitation if I do not continue working secondary employment. He stated that he was of the belief that he could still continue based on the provision of the medical practitioner's diagnosis and the medical certificate. He maintained that he was correct in continuing to work even when the secondary employment was unauthorised. He refused to accept that he was acting in breach of the policy. The policy of the Service states: applications for secondary employment when an applicant is on sick leave will only be approved in extenuating circumstances. That had not occurred. 181 The Notice considers the five incidents in the context that the applicant had received a Warning Notice related to his off-duty conduct at the Penrith RSL Club incident and his poor performance of police duties. The Commissioner used that Warning Notice to comment the applicant was on notice of the consequences of further unsatisfactory conduct and/or performance. 182 The applicant asserted in four of the five incidents he was under the influence of alcohol. The most that is said in the Notice regarding alcohol is it is mentioned in two of the incidents where (having elucidated a discussion on the five incidents in question) the Commissioner held: Collectively, these issues indicate a pattern of inappropriate behaviour that does not meet the expectations of either the community or the New South Wales Police. I have significant concerns about your conduct, your capacity for ethical decision making and your ability to behave in a manner that I expect from a New South Wales Police Officer. 183 The respondent contends the Mazepa Avenue incident on 18 October 2003 involved the applicant abusing his authority in displaying his police ID, but alcohol was not involved. This, the respondent asserts is indicative of the applicant's inappropriate conduct and his alcoholism while it may have been linked to some of the incidents, is a separate issue warranting separate attention. The inappropriate conduct, his incapacity to make ethical decisions and his general behaviour were the grounds for the applicant's unsuitability to serve as a police officer the respondent submitted. The Mazepa Avenue incident however would not be an incident sufficient, in itself, to warrant removal. 184 I am satisfied that the grounds on which the Commissioner relied in the Notice have been, as to their factual recitation in that Notice, established. I am further satisfied that in four of the five matters the applicant was affected by alcohol. The Commissioner's Reasons 185 Having found the circumstances of each incident relied upon was in accordance with the description contained in the Notice it is, however, necessary to note in the Statement of Reasons there was reference to other matters not in the Notice. An examination of the Reasons for the Order is therefore necessary. 186 In the Reasons, in addition to the incidents listed in the Notice, the Commissioner also relied upon earlier incidents of "poor conduct" not recited in the Notice. He referred to: · the incident of inappropriate behaviour at the Police Academy bar on 7 July 1999. While not giving the incident "any real weight", the Commissioner commented: "it does provide evidence of your off-duty conduct . . . where alcohol was a factor". · an incident at the Penrith RSL Club in December 2001. The Commissioner here commented on the applicant's inappropriate behaviour in producing his police badge and his use of offensive language. The Commissioner also canvassed the applicant's on-duty behaviour and noted: · the applicant's poor performance such as his difficulties when recording written information. · that he did not enjoy the respect of his colleagues. · that he was considered a poor performer. · that he was held generally in low regard by his peers, his supervisors and members of the Police management team. · that his Commander opined "I believe his behaviour has shown complete disregard for his office." The Commissioner also made general comment that: · after becoming a constable the misuse of alcohol affected the applicant's off-duty behaviour; and · the applicant was referred to the Healthy Lifestyles Branch in relation to any alcohol and gambling related issues. The Penrith incident and the applicant's performance generally were referred to in the Notice in the context they were relied upon in the Warning Notice which informed the applicant of the implication of further misconduct. However, in the Reasons they were addressed as grounds demonstrating unacceptable attitude and conduct. 187 The respondent submits such "additional material" mentioned in the Reasons simply supported the decision to remove which he asserts was based on the five matters which were the subject of the Notice. I do not accept the performance issues have only limited application in the Commissioner's Reasons. While the facts, as asserted, are not under challenge, they significantly expand the grounds for the termination from the five off-duty incidents to on-duty conduct as well. The other two incidents are also given weight different from that as referred to in the Notice. Further they provide only a selective review of the applicant's performance and did not give a perspective of his complete work history including his claims of stress at the workplace and his medical history. 188 The Commissioner comments in the Reasons on the applicant's asserted alcohol abuse, as raised in the applicant's reply, thus: (the) continuing pattern of poor attitude and a lack of personal responsibility emerge in these matters. I note in your response, that in mitigation you seek to negate your off-duty conduct as being a result of a combination of alcohol and medication. By any reasoned adult decision making process [emphasis added], such combinations are dangerous and commonsense would flag this fact. I do not accept that this is an excuse for poor behaviour, attitude or conduct (on or off-duty), particularly when it has been exhibited over such a sustained period of time. I have carefully reviewed all the material associated with this matter and see no mitigation or reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer. 189 Alcoholism, or at the very least alcohol abuse, is considered by the Commissioner but not given the full weight that the facts, as revealed in the employment history before the Court, required. The applicant's pattern of behaviour off-duty was generally alcohol related and given his unsatisfactory performance at work coupled with his excessive sick leave record I find all are indicative of an officer affected by alcohol both on and off-duty. If the level of alcohol intake was such as to affect behaviour on and off-duty and hospitalisation was recommended, it is odd that there is hesitation in the use of the word "alcoholic" to describe the applicant's behaviour at the relevant times. I cannot accept an alcoholic could have a 'reasoned adult decision making process'. 190 The Commissioner did not accept that alcohol abuse could be a medical explanation for the applicant's conduct. He rejected alcohol as a possible causal factor in the applicant's behaviour. There is no reference to the applicant's disjointed complaints of work related stress nor an acknowledgement that early signs of stress were recognised by his superior officers (as early in his employment as 2001) nor is there an acknowledgement of the fact that the applicant's worked front line for only a year and a half then spent a further year and a half in a remedial placement, then was off work on leave for a further two and a quarter years. 191 I find that the grounds as contained in the Notice were significantly expanded in the Reasons for the Order and I reject the submission that the new incidents referred to, and the on-duty performance critiques, are simply expansive on the grounds relied upon in the Notice. Further the applicant was not given formal notice of these grounds nor an opportunity to reply to those "expanded" issues. 192 Having considered the grounds in the Notice, the Commissioner's Reasons for the Order and the case presented by the applicant and the case in reply, the court must also take into account the public interest including the interest in maintaining the integrity of the NSW Police Service and the fact that the Commissioner made the Order. 193 I have considered the view, strongly expressed by the Service, that the applicant was "manipulating the system". I note Dr Fong his General Practitioner, who for years had not referred him for specialist treatment but who continued to provide certificates, only when challenged by the Commander, cast some doubt as to the applicant's motivation. Further, I take into account the applicant was able to perform, physically, other work. Financial evidence reveals at some stages he was able to conduct a profitable maintenance business with hired labour. I find it was open to the Police Service to cease his secondary employment permit and with that instruction he should have complied. However, I am satisfied the applicant at the same time that he performed some physical work and conducted a maintenance business, throughout late 2003, 2004 and 2005, was unable to perform full police work after one and a half years of service due to problems related to alcohol and it may be he also suffered work related stress. He was showing symptoms of stress which were recognised by the Service in late 2001. He made claims for multiple injuries at work. He had his remedial training continually extended. I am satisfied the applicant, as best he could in the circumstances, expressed he had anxiety/stress related problems. Whether his stress was work related and/or aggravated his circumstance of alcohol abuse is a medical issue and not one for this court to determine. 194 The Commander who recommended the termination to the Commissioner was asked as to the view he expressed: . . . drinking was not a work related issue. The Commander stated: Incidents of alcohol pre-dated his joining the New South Wales Police. The Commander required a medical examination before serving the Notice given his concern as to the emotional stability of the applicant. The Commander was asked why a medical retirement was not recommended by him and he replied: A. I would balance that point of view out by saying he was gainfully employed in secondary employment and could easily function doing handyman work and did 200 or 300 jobs between 6 and 8 weeks. When interviewed by Randell around the same time he was able to function quite well which also caused me to challenge about the same amount of pain in the wrist injury which came after all entitlements were exhausted and I challenged the fact that he could do manual labour for such an extensive period. To my knowledge he has never applied for medical discharge - these are complaint matters, they were dealt with as that under Part 8 A of the Police Act and referred to the Command and managed through the Complaints Management Team. 195 The fact that the applicant had been able to manage physical work but not manage police work may be open to a different interpretation from the conclusion he was manipulating the system. 196 The fact that the applicant did not attend appointments was symptomatic of his condition. I cannot accept because of such behaviour it could be assumed he did not have a medical problem and this pattern of behaviour could fairly be viewed as misconduct. I understand the submission that the applicant was flouting the police service rules but at the time the applicant was not in possession of the necessary reason nor common sense. The Police Service chose to hire this vulnerable officer. It holds some responsibility in determining what his condition was after five years service that caused them to determine he was unable to satisfactorily perform his duties. 197 I find it is not in the interest of the police service nor in the public interest to simply remove an employee who was clearly very ill and unable to cope. While the Police Service did try and failed to rehabilitate this employee, at the point of the decision to remove, there were other options available. 198 The weight of medical opinion including that of the Police Medical Officer made clear the applicant was very ill and needed psychiatric help. A psychologist's opinion should not have been used to override the Police Medical Officer's opinion. All that was briefed to the Commissioner was the statement "he has been on long-term sick leave". The service, in evidence, expressed the view that would have been, to the Commissioner, an "indication" of his medical condition. I reject this proposition. 199 I do not accept that it is in the public interest nor in the interest of the police service to have a police officer who, it appears, cannot cope and who has obvious medical problems to be removed on the grounds of conduct and attitude without a comprehensive medical examination to determine his condition. 200 Given the failure to address the applicant's complete work history, his recognised illness, his mental state and the associated failure to consider whether the applicant should have been dealt with by way of a medical discharge, or at least a medical examination with view to assessing his eligibility for medical discharge, and taking into account the expanded Reasons for the Order from the grounds notified in the Notice and the Commission's finding the applicant was affected by alcohol throughout a considerable period in his employment as a Constable, I find the Order of the Commissioner to terminate the applicant for attitude and conduct as demonstrated through five off-duty incidents was, in the circumstance, harsh and unjust. Relief 201 Having so found, the Act requires me to determine what relief is to be granted. 202 There was significant and helpful evidence given by the respondent as to how the applicant could be referred for a medical discharge and the question was raised as to what procedures would be followed and what rights the applicant may have. Inspector Sullivan of the Employee Management Branch was asked: HER HONOUR: Q. If we go back a step in these documents, the incidents reveal a behaviour related to alcoholism. It seems to be acknowledged? A. Yes your Honour. Q. In considering recommendations for dismissal was the question of alcohol consumption considered as a mitigating factor? A. Certainly, the question of alcohol was considered and I mean it is clearly written in the Commissioner's Confidence Submission that alcohol was a factor. I mean it was - it is clear in the Commissioner's Confidence Submission, the way it was written and the Commissioner would have read that and taken that into consideration. Q. I have got a few general questions and they may not be appropriate to ask you but I don't know who else to ask them of? A. You can try me, your Honour. . . . Q. If you have got a dismissal and it is possible there is a medical problem you are not free to act. You are just acting on the dismissal. Is that correct? A. That is right, your Honour. Q. At what level is the question of medical addressed. It is not you? A. No, it is the Commissioner. The Commissioner, if the officer has a-- Q. If the Commissioner has got your statement, once you said it is the Commissioner my question is if he has got your statement why didn't the possibility of that get addressed? A. Well, the Commissioner can make that call at that point. Q. Without it being addressed in the submission to him? A. Well the submission itself actually addresses that, The applicant has been on long term, had been on long term sick leave so that was an indication. . . . Q. It is not part of any of the options coming to him in the submission from you? A. The cases are processed separate from the medical discharge process, it is done by - through employee management branch and the professional standards command. 203 An application for medical discharge signed by the applicant and dated 31 August 2005 was sent by solicitors acting for the applicant to the Commissioner for Police under cover of letter dated 13 December 2005. That letter is stamped as having been received by the Police Service workers compensation area on 21 December 2005. On August 2003 the applicant had applied for a medical release on a number of grounds, some were rejected, others not dealt with. The claim was rejected. Notice was given of an appeal. 204 The applicant on 22 November 2005 in his Reply to the Notice had asked the Commissioner to consider his case as an application for a medical retirement. That was not directly addressed by the Commissioner, nor was alcoholism and/or stress viewed as a medical condition, nor were his complaints of stress addressed. 205 Evidence revealed a medical discharge application can be actioned and initiated at the local command level, by the employee, by the police medical officer or by the Commissioner. However, when such an application is actioned the Acting-Director of Health Services in the NSW Police Service seeks a clearance from the Professional Standards area - the Employment Management Branch. If Health Services are informed that there is a s181D process in place there may be a determination that the medical discharge should not proceed until the s181D process has been finalised. The relevant area would continue to process the medical discharge until such time as they are told by the Commissioner or Professional Standards - Employment Management Branch that the medical discharge was not to proceed because of action or possible action under s181D. This appears to indicate a priority is given to s181D terminations. The Commissioner therefore does not always receive assistance, where relevant, as to a medical assessment of an officer. 206 Removal from the Police Service pursuant to s181D has the effect of preventing an officer making an application for a medical discharge. The respondent submits that there was no valid application for medical discharge by the applicant prior to his departure from the service. 207 On or about 23 June 2005, a new award, the Crown Employees (Police Officers Death and Disability) Award 2005 came into force and effect and has application to police officers. A police officer who joined the police after April 1988 is able to make an application for benefits under the award only if they meet the criteria set out in the award. The award applies to those police officers who were at work on or after 23 June 2005 for a continuous period of not less than 30 days (clause 4.3). 208 Under transitional arrangements the award also applies to officers who as at 23 June 2005 are participating in an agreed return to work programme or who return to work after that date and participate in an agreed return to work programme. This is subject to the caveat that they must be participating in such a program for a period equivalent to three months of their full time service (c 4.4). The facts have revealed the applicant was not at work on 23 June 2005. However, he was on sick leave which did not cease until August 2005 after which he appears to have been paid until 20 December 2005 but terminated on 9 December 2005. 209 The respondent submitted the evidence is clear that the Award has no application to the applicant. 210 Prior to the introduction of this Award, and supplementary to any rights in relation to workers' compensation, police officers who were hurt on-duty could make application to the Commissioner for Police for what was termed a "special risk benefit" pursuant to s216 of the Police Act 1990. That provision provided the Commissioner could pay to a police officer who is retired from the police on the ground of physical or mental incapacity (being an incapacity which the Commissioner determines to have been caused by the police officer being hurt on-duty and calculated in accordance with the formula provided in the relevant section). 211 Psychological or psychiatric injury sustained by a police officer as a consequence of being hurt on-duty is taken into consideration by the Commissioner only if it is demonstrable and permanent (s216(B)). The Commissioner must not make a payment under the provision unless the police officer was, in the opinion of the Commissioner, hurt on-duty because the police officer was required to be exposed to risks which members of the general workforce would normally not be required to be exposed in the course of their employment. 212 While s216 of the Police Act has been repealed it is still in force and effect for police officers employed after 1 April 1988 and who sustained an injury prior to the introduction of the Death and Disability Award 2005. 213 The applicant, self represented, was unable to express a view as to the respondent's proposal as to his existing rights. The Police Service determines under what provision an officer is referred for a medical examination to determine his eligibility for a medical retirement. Presumably, the applicant retains his right to appeal if the Service, on the facts, refers an officer for a medical retirement examination under a particular statutory provision and the relevant statutory provision chosen is not the applicable one to the circumstance. 214 In the final submissions, the applicant asserted he should be re-instated as he had stopped drinking in August 2005. While behaviour following the termination can be taken into account (see Hoseman No.2 and Dobbie) I do not accept the fact that the applicant has ceased to drink is a sufficient ground to reinstate the applicant. Taking into account the work history as revealed in the evidence and having seen and heard the applicant I have formed the view that the applicant has failed to develop an understanding of policing and is not a suitable candidate for police employment. 215 I have come to the conclusion it is not appropriate or indeed possible, given the circumstances revealed in evidence, to return the applicant to the Police Service with a view to his resuming police work. 216 However, I order the applicant to be reinstated in the Police Service, without pay and without compensation in respect of time not worked, but conditionally upon his undertaking in writing to the Commission that he will attend a medical examination in consideration of a medical discharge. Should that application be unsuccessful, he will be deemed to have resigned from the Police Service. 217 The applicant is, after the filing of an undertaking, then to be referred for a medical examination for the purpose of medical retirement in accordance with his statutory entitlement. The applicant's complete employment and medical history (including all existing medical reports and any further reports to be relied upon) are to be placed before the medical examiner. The determination of the medical examiner is to be notified to the Commissioner. 218 The Orders will take effect on and from 5 April 2007, conditionally upon the applicant's written undertaking and upon its being filed with the Industrial Registrar and served on the Commissioner of Police. Final Orders 1. I order the applicant be re-instated, without pay, to the New South Wales Police Service and without compensation in respect of time not worked. 2. The New South Wales Police Service is to refer the applicant for a medical examination for the purpose of medical retirement in accordance with his statutory rights. 3. The applicant's complete employment and medical history (including all existing medical reports and any further reports to be relied upon) are to be placed before the medical examiner. 4. The determination of the medical examiner is to be notified to the Commissioner of Police. 5. Should the medical examiner not determine in favour of medical retirement, the applicant is deemed to have resigned from the New South Wales Police Service effective from 5 April 2007. 6. I put the following condition upon this reinstatement: the applicant undertakes in writing to the Registrar of the Industrial Relations Commission of NSW that he will attend for the said medical examination and he acknowledges the significance of the above orders has been explained. 7. The Final Orders will take effect on and from 5 April 2007. 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