Industrial Relations Commission of New South Wales CITATION: Lawrance v Commissioner of Police (No 2) [2010] NSWIRComm 173 PARTIES: Andrew Lawrance (Applicant) Commissioner of Police (Respondent) FILE NUMBER(S): IRC 37 of 2010 CORAM: Walton J Vice-President CATCHWORDS: POLICE - removal of police officer - previous finding harshness - remedy of re-employment - Commission requires draft orders and submissions to be filed - orders proposed by Commissioner of Police made with minor modifications - Commissioner's submissions regarding location for re-employment reasonable - orders made. LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 CASES CITED: Lawrance v Commissioner of Police [2010] NSWIRComm 149 HEARING DATES: Written submissions 26 November 2010 DATE OF JUDGMENT: 2 December 2010 Ms P Lowson of counsel Walter Madden Jenkins Solicitors LEGAL REPRESENTATIVES: Mr J Murphy of counsel Henry Davis York Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J Vice-President Thursday 2 December 2010 Matter No IRC 37 of 2010 ANDREW LAWRANCE AND COMMISSIONER OF POLICE (NO 2) Application by Andrew Lawrance for review of an Order under s 181D of the Police Act 1990 DECISION OF THE COMMISSION [2010] NSWIRComm 173 1 The Commission delivered a decision in this matter on Friday 12 November 2010: Lawrance v Commissioner of Police (No 1) [2010] NSWIRComm 149. 2 Having found (at [322]) that the removal of Andrew Lawrance ('the applicant') was harsh, the Commission made the following determinations in relation to the question of relief: 327 The applicant sought reinstatement to his former position at Grafton and accepted that, if the Commission were to take a dim view of his conduct, no order for back pay may be made in his favour. 328 Where a finding of harshness results from review proceedings brought under s 181E of the Police Act , the primary remedy is reinstatement: Burge (at [34]) and Little (at [88]). It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the IR Act may be applied: Casari v South West Area Health Service (2009) 185 IR 217 (at [72]). 329 Ms Lowson submitted that there was no evidence of impracticability and certainly no evidence that there would be any difficulty for the applicant returning to his former posting. The Commissioner submitted that, given the applicant had a propensity towards a certain form of conduct which was unacceptable, it would be inappropriate to return him to service in the Police Force. In the result, if the Commissioner was inclined to grant a remedy, compensation would be appropriate. 330 It was made abundantly clear in the recent decision of the NSW Court of Appeal in Director General, NSW Department of Health v Industrial Relations Commission of New South Wales (2010) 193 IR 244 (at [19]), that an order for reinstatement under s 89(1) of the IR Act is confined to an order restoring a successful applicant under s 84(1) (in this case read s 181E of the Police Act ) to that person's "former position". 331 At the time of the impugned conduct the applicant held the rank of Sergeant and was posted at the Maclean Police Station as a Sector Supervisor. From the time of the issuing of the Notice until his removal from the Police Force, the applicant retained his rank of Sergeant and performed various senior duties ranging from Station Manager to Shift Supervisor at the Grafton Police Station. On any account, then, the order of reinstatement sought by counsel, on behalf of the applicant, must be seen as having the effect of returning the applicant to a senior position in the Police Force at the rank of Sergeant. 332 I accept the applicant's submission that there is no evidence from officers at the Grafton Police Station expressing difficulty with working with the applicant. I would accept that the Police Force is an organisation of such a nature and size as to eliminate inhibiting factors that might affect an order for reinstatement in smaller or differently structured organisations (see the observations of Haylen J, in the minority, in Reid-Frost (at [162]). 333 Having regard to the conclusions reached in this decision, however, I do not consider that it is appropriate to restore the applicant to his former senior position. I do not preclude the possibility that, after the applicant has the opportunity of confirming the effectiveness of his rehabilitation and giving effect to the faith that senior officers have in him, he may regain a more senior position. I do not consider, however, that, consistent with the proper management of the Police Force, the applicant should, at this stage, be returned to a position of seniority of the kind that he held prior to his removal. Whilst he has demonstrated rehabilitation as to his alcohol problem, I have found that this factor does not entirely excuse his conduct, which involved a level of immaturity of character. Hence, I consider it is impracticable to reinstate the applicant to the position and rank of a Sergeant of Police (carrying out senior duties such as Station Manager or Shift Supervisor). Indeed, I consider that one condition of his re-employment (to which I shall return) should be that he is not eligible for promotion for a period of 12 months: Miller at [125]. 334 In contrast, I consider that an order for re-employment to the position of Senior Constable is appropriate and practicable. 335 The parties were unable to identify any issue, as to power, that might preclude an order of that kind being made in these proceedings. I concur with that view. 336 The parties accepted that 'Senior Constable' was a position within the meaning of that expression in s 89 of the IR Act. Further, it was accepted that the position, Senior Constable, was "another position" (within the meaning of that expression in s 89(2)) when compared to the former position occupied by the applicant, namely, Sergeant. Whilst there was no elaboration upon those propositions, they are, in my view, correct. Section 10(1) of the Police Act provides that the Commissioner will determine positions within the Police Force which shall be classified and graded (s 10(2)(b)). Police officers receive ranks (s 12(1)) of which, in the present context, 'Sergeant' and 'Constable' are relevant. The Regulations may specify grades within those ranks (s 12(3)). Regulation 5(1) of the Police Regulation 2008 provides grades corresponding to the ranks of Sergeant and Senior Constable. From an industrial perspective, the Crown Employees (Police Officers - 2009) Award, (2009) 369 NSWIG 1233 ('the award') provides for a classification structure corresponding to ranks (and grades). Senior Constable is one such classification, and provides for increments ranging from level 1 to level 6. 337 I do not consider that it is impracticable to re-employ the applicant as a Senior Constable. As I have indicted above, it is practicable, in a general sense, to restore him to a position with the Police Force. The character references speak strongly in favour of that conclusion. The Commissioner did not rely on competence or integrity as grounds for the applicant's removal. In terms of the consideration of "another position" for the purposes of s 89(2), I consider the position of Senior Constable is appropriate as it carries with it a fitting level of responsibility having regard to my findings as to the immaturity of the applicant's conduct on 11 December 2008 and his subsequent rehabilitation and acceptance of responsibility. 338 Further, given the applicant's employment history, including a lengthy period of service as a Senior Constable (and the subsequent occupancy of more senior positions), there is no proper basis to conclude that the applicant is not suitable for the position of Senior Constable. There can be no real issue, in my view, about his capacity to perform the full range of duties of the position of Senior Constable, which is the next rank in descending order to that of Sergeant. To this may be added my earlier observations about his service record. 339 Mr Murphy conceded that, in terms of the position of Senior Constable, it could not be suggested that there was any barrier associated with the availability of a position at Senior Constable rank. 340 Hence, I determine that, for the purpose of s 89(2) of the IR Act, it is not impracticable to re-employ the applicant in another position, namely, the position of Senior Constable with the NSW Police Force. There are positions of Senior Constable available within the Police Force and, in my opinion, the applicant is suitable for that position. Given the primacy to be afforded that remedy of re-employment and my findings as to the appropriateness of that remedy in this case, it should, subject to public interest considerations, be ordered. 341 I do not consider that the restoration of the service of the applicant is contrary to the public interest. The same considerations, as earlier mentioned with respect to the public interest, are relevant here. There is a confident basis for the restoration of the applicant's prior good service with the NSW Police Force without repetition of conduct of the type which has led to these proceedings. Additionally, I consider the integrity of the Police Force is maintained and protected by the public recognition of the applicant's misconduct, the confirmation of the applicable codes or standards for off duty behaviour and the restoration of service at a lower rank with conditions. 342 Accordingly, I will order the re-employment of the applicant to the position of Senior Constable, which order shall be effective 21 days after this decision. I am presently disposed to the applicant receiving the highest incremental step for the classification of Senior Constable in the award, unless there is some impediment to that course having regard to the terms of the award. I will give liberty to make further submissions in that respect. 343 I do not propose to make orders otherwise confining the Commissioner in the applicant's re-employment but would recommend that the Commissioner gives serious consideration to placing the applicant in his previous Command, particularly having regard to his residence and service history. 344 Given my findings as to the applicant's misconduct, I do not consider that any order for back pay should be made pursuant to s 89(3). I do, however, consider that an order for continuity of service should be made, pursuant to s 89(4), commensurate with the applicant's long and ongoing service. 345 The parties did not raise a question as to whether conditions might be imposed under s 89(8) of the IR Act. This was, no doubt, a reflection of their respective standpoints as to the proper conclusion of these proceedings. I do consider, however, three conditions should be imposed commensurate with the nature of the applicant's misconduct and the rectification of his alcohol problem. First, whilst I accept Ms McCartney's report as to ongoing and lasting behavioural change by the applicant, it would be prudent to make provision for the Commissioner to monitor this situation with appropriate controls. Conditions should be imposed to monitor and control the applicant's alcohol practices for a specified period of time. I have in mind conditions of the kind made in Dobbie in orders 2(b), (c), (d) and (e) (see para [70]) without the requirement of order 2(a) or (f) or the making of a deed or undertaking. The conditions should be commensurate with the imposition of an effective programme for monitoring and counselling, as may be appropriate and may include ongoing involvement by the applicant under the NSW Police Employee Assistance Program and a further report, if the Commissioner deems it appropriate, from a suitably qualified psychologist. Secondly, I propose to limit the opportunity for promotion for a specified period of time, namely, 12 months. Thirdly, the conditions should provide that the applicant receive a final written warning as to any future misbehaviour. 346 I have not heard the parties on the appropriate form of orders to give effect to these conditions or as to the incremental level applicable to the applicant's re-employment as a Senior Constable. I shall, therefore, provide an opportunity to the parties to file short minutes of order and/or submissions within the confines of paras [342] and [345] of this decision as to the appropriate form of the orders including conditions pursuant to s 89(8) of the IR Act. 3 In consequence, the Commission directed that the parties file draft orders with, to the extent required, written submissions. The Commission stated: 347 The Commission orders and directs that the parties shall, within 14 days after the delivery of this decision, file draft consent orders conforming with this decision or, in the event of dispute as to the form of the orders, the parties shall file and serve within the same timeframe their respective proposed draft orders with any accompanying written submission as to the contested areas of the proposed orders (provided that such submissions shall be confined to the liberty granted in this decision). This is a strict timetable and the final orders shall be determined in accordance with orders and submissions filed within the time specified. Unless a party seeks an oral hearing (in addition to any written submission filed), the final form of the orders shall be determined by the Commission on the papers. If an oral hearing is required, it will be listed shortly after the expiry of the 14 day period allowed for the filing of orders and/or submissions, but shall not affect the time earlier specified for the operation of orders for the re-employment of the applicant. 4 The parties responded by filing draft orders within the time specified. Unfortunately, discussions held in the intervening period were not successful in resolving all issues as to the form of the draft orders. As anticipated in this event, submissions were filed as to the competing positions of the parties. No party sought an oral hearing. By this decision, the Commission determines the final orders in this matter. DRAFT ORDERS AND SUBMISSIONS The Applicant's Contentions 5 The applicant's solicitor, Mr K J Madden of Walter Madden Jenkins, proposed the following draft orders: 1. The respondent is to re-employ the applicant in the position of Senior Constable, Level 6, as at 3 December 2010. 2. The applicant has continuity of service for all relevant periods, and for all purposes other than the payment of salary, during the time from the date of his removal from the NSW Police Force to the date of his re-employment. 3. The re-employment of the applicant is subject to the following conditions: (a) The applicant is precluded from being promoted to the rank of sergeant for a period of twelve months from 3 December 2010. (b) The applicant will receive a Final Written Warning in relation to his future conduct. (c) The applicant, when he is on duty (as distinct from being rostered on duty), will submit to testing by an authorised person for the presence of alcohol (i) at least once, but no more than four times, in the period to 6 December 2011 (ii) the applicant may, or may not, be given notice of the time of testing; (iii) the applicant may not refuse or fail to undergo a breath test or breath analysis in accordance with a direction of an authorised person; (iv) any testing is to continue for a period of one year from 6 December 2010. The Commission notes the respondent's intention to re-employ the applicant at Lismore Police Station in the Richmond LAC. 6 As to disputed aspects of those draft orders, the applicant's solicitors advanced the following submissions: Senior Constable Level 1. Mr Lawrance was promoted to Senior Constable Level 1 effective from May 2001. (We note that, in the decision, the date nominated is May 2002, but we are instructed that this is incorrect and that Mr Lawrance's commencement date as a Senior Constable was backdated to May 2001.) Had he continued in that rank, he would now be a Senior Constable Level 5, Step 2 (current loaded salary $82,754). Instead he was promoted to the rank of Sergeant in or about 2004/5. At the time of his dismissal he was a Sergeant Fifth Year, in receipt of a salary of $92,555. 2. The Crown Employees (Police Officers) Award 2009 applies to the employment of the Applicant. 58. Competency Based Incremental Progression 58.1 Except as otherwise provided for Leading Senior Constables, Sergeants, Senior Sergeants and Detectives elsewhere in this clause, incremental progression for Non-Commissioned Officers shall be based on: 58.1.1 a minimum period of twelve (12) months service on each incremental level or step as defined in Table 1 - Non-Commissioned Officers' (Other than Detectives) Salaries of PART B, Monetary Rates or Table 2 - Detectives' Salaries of PART B, Monetary Rates; and 58.1.2 compliance with the competency requirements specified in this clause. 3. Clause 58 governs the circumstances in which police officers progress up the incremental levels set out in the Award – it is not intended to govern the specific circumstances of this case, being a re-employment order by the Industrial Relations Commission involving the reduction in rank of that officer. 4. Further, Clause 37 is also relevant: 37.1 Subject to the Police Act 1990, and Regulations and any requirements there under and to the provisions of clause 58, "Competency Based Incremental Progression" (Non-Commissioned Officers), of this Award, a Non-Commissioned Officer (other than Detectives) shall, according to the rank held and the incremental level achieved, be paid a base salary of not less than the amounts prescribed in Table 1 - Non-Commissioned Officers' (Other than Detectives) Salaries of PART B, Monetary Rates 5. This clause makes clear that the base salary paid to a non-commissioned officer is subject both to Clause 58 and the Police Act , being the statute pursuant to which the re-employment of the Applicant is being effected. S.181G(1)(d) provides that s.89 of the Industrial Relations Act is to apply to applications, such as this one, brought pursuant to s.181E of the Police Act. 6. In those circumstances it is open to the Commission to order the re-employment of the Applicant at the highest Level of Senior Constable, which is Senior Constable Level 6 (loaded salary of $83,842). 7. The applicant notes that this involves a reduction in salary in the order of $8,713, a reduction that will continue to affect the applicant into the future. This is addition to penalty associated with the effective loss of more than 11 months salary (or more than $76,855 gross at Senior Constable Level 6) for the period between Mr Lawrance's removal and re-employment. 8. In all the circumstances re-employment at Senior Constable Level 6 is both appropriate and available. Continuity of Service 9. Section 89(4) of the Industrial Relations Act 1996 provides for an order to be made that service with an employer is taken not to be broken by the dismissal of a person. The order proposed by the applicant clarifies that the continuity of service is to carry with it all benefits other than payment of salary. If this does not reflect the Commission's intention, the applicant submits that this period at least should count for the purposes of incremental progression. Thus, if the Commission is of the view that Clause 58 operates to limit the Senior Constable Level at which the Commission can order the re-employment of the applicant, the period between date of removal and date of reemployment should count for incremental progression purposes, so as to ensure that the reduction of rank is as close as possible to the level contemplated by the Commission as appropriate (at [342]). "Dobbie" Orders 10. The applicant notes that the Commission referred to orders similar to those made in Dobbie , but for a "specified period of time". The Orders proposed by the Applicant are intended to reflect the Commission's intention in that regard. The Orders also reflect that the role of alcohol in Mr Lawrance's misconduct, and the misconduct itself, is somewhat different to that applying in the Dobbie proceedings. The applicant is content for the his Honour Justice Walton to determine the final form of Orders without hearing further from the parties, but is available to respond to any queries as required. The Commissioner's Contentions 7 The Commissioner's solicitor, Mr S Jauncey of Henry Davis York Lawyers, proposed the following draft orders: 1. The respondent is to re-employ the applicant as a Senior Constable Level 5, Step 1 effective from 3 December 2010 in a position to be determined by the Respondent. 2. The period from the date of removal to the date of re-employment will not count as service for any purpose (and the applicant will not be entitled to any payment for that period), but will not break continuity of service for the purpose of calculating leave entitlements. 3. To the extent the applicant was paid, on removal, for leave entitlements accrued prior to that date, the leave will not be re-credited unless the applicant repays the relevant payments. 4. The re-employment of the applicant is conditional upon the following: (a) The applicant, when he is on duty (as distinct from being rostered on duty), will submit to testing by an authorised person for the presence of alcohol at least once per year; (b) The applicant is not necessarily to be given notice of the time of testing; (c) The applicant may not refuse or fail to undergo a breath test or breath analysis in accordance with a direction of an authorised person; (d) Any testing is to continue for such period the applicant remains a member of NSW Police Force or a shorter period as determined by the Commissioner of Police; (e) The applicant will not be eligible for promotion for 12 months from the date of re-employment; and (f) The applicant recognise that he will receive a final written warning, in a form to be determined by the respondent, as to any future behaviour. 8 As to disputed aspects of the orders (and the Commission's recommendation as to the 'location' for re-employment), the Commissioner submitted: 1. Location The Commissioner has given very serious consideration to His Honour's recommendation and has consulted with the Coffs/Clarence Local Area Commander. The Commissioner consider[s] that there may be substantial difficulties if Mr Lawrance is re-employed in the Coffs/Clarence Local Area Command. The Commissioner is concerned about the effect it is likely to have on the operational demands of the Command. All internal witnesses are from that Command and there is a concern that there will be a substantial disruption to workplace harmony with consequent effects. Indeed, we are instructed that one of the persons present at the incident, who also gave a statement, has already raised concerns about having to interact with Mr Lawrance in the workplace. In addition, we note that the Commission can only order re-employment to another position that the employer has available and that, in the Commission's [sic] opinion, is suitable. Nevertheless, the Commissioner is cognisant of the issues raised by His Honour about Mr Lawrance's residence and service history. We understand Mr Lawrance resides in the McLean area. The Commissioner has striven to identify an alternative locale for him which seeks to minimise any travel or associated inconvenience. In considering alternative positions, we are instructed that the Commissioner believes that Mr Lawrance will need to be subject to a high level of supervision to manage the proposed reintegration into the workplace, the changed role and relationships, and the nature of His Honour's findings. We are informed that Coffs Harbour and Lismore are the two largest police stations capable of providing a high level of supervision within a reasonable distance of Maclean. We understand that both of these stations are roughly equidistant from Mr Lawrance's residence and, in fact, Lismore is slightly closer than Coffs Harbour. For reasons set out above, the Commissioner considers it inappropriate to place Mr Lawrance at Coffs Harbour police station (or in the Coffs/Clarence LAC). However, we are informed that the Commissioner intends that, on any re-employment, Mr Lawrance will be engaged at the Lismore police station (in the Richmond LAC), which, in any event, is slightly closer to Mr Lawrance's residence and seems to involve slightly less travel time. On this basis, we understand that there is largely no dispute in relation to proposed order 1 save as to whether Mr Lawrance should be appointed to Senior Constable, Level 5, Step 1 or Senior Constable Level 6. 2. Incremental level In regards to incremental level, we are instructed that the Commissioner does not believe that re-employment at Senior Constable Level 6 is consistent with the Crown Employees (Police Officers - 2009) Award (Award). We note that clause 58 of the Award deals with incremental progression within the rank of Senior Constable. In essence, there are 11 incremental points within the rank of Senior Constable. Incremental progression can only occur if, among other things, an officer has spent at least a year at each prior incremental point. As a result, the Award effectively requires a minimum of ten years service at the rank of Senior Constable in order for an officer to be eligible to progress to Senior Constable Level 6. Counsel for Mr Lawrance today informed us that Mr Lawrence believes there to be an error in the system and that his appointment to Senior Constable was backdated to May 2001, not May 2002 as previously indicated. We have sought further instructions. According to pay records, it seems that Mr Lawrance commenced as Senior Constable Level 1 on 23 November 2001. Regardless of whether the date of appointment was May 2001 or November 2001, it is clear that Mr Lawrance was appointed as Senior Constable more than nine, but less than ten, years ago. Discounting the period of some 11 months from the date of removal until the date of re-employment, Mr Lawrance has more than eight, but less than nine, years of service since being appointed as Senior Constable (even counting his time at the rank of Sergeant). Under the Award, therefore, he would progressed no higher than Senior Constable Level 5, Step 1. Even if the period between the date of removal and the date of re-employment were counted as service for the purposes of determining progression, Mr Lawrance would only have been entitled under the Award to have progressed to Senior Constable Level 5, Step 2. As a result, the Commissioner believes that re-employing Mr Lawrance as Senior Constable Level 6 would be inconsistent with, and contrary to, the incremental arrangements set out in the Award. We further note that the situation is, in many ways, analogous to that where an officer designated as Leading Senior Constable has his or her "Leading" status revoked. In such circumstances, the officer would revert to the relevant incremental level within the rank of Senior Constable based on his or her years of service since being appointed as Senior Constable. An officer in such a case would not be entitled to revert to the Senior Constable Level 6 incremental point unless otherwise applicable based on years of service. Accordingly, order 1 of the Short Minutes proposed by the Commissioner envisage the re-employment of Mr Lawrance as Senior Constable Level 5, Step 1. 3. Continuity of service There is significant difference between the Commissioner's proposed order in relation to continuity of service and that proposed by Mr Lawrance. The Commissioner does not agree to Mr Lawrance's proposed order 2. It appears to give Mr Lawrance continuity of service for the period between removal and re-employment. This would effectively require the NSW Police Force to accrue leave for Ms Lawrance over that period. It appears inconsistent with His Honour's decision, at [344], that no order for back pay should be made. Instead, the Commissioner's proposed order 2 recognises that the period of time between the date of removal and the date of re-employment would not break continuity of service, but would not count as service for any purpose (including the accrual of leave entitlements). Proposed order 3 of the Commissioner's Short Minutes simply recognises that Mr Lawrance was already paid out various accrued leave entitlements on removal. We do not understand that there is any suggestion he should be able to "double dip". This proposed order is intended to clarify the position and give Mr Lawrance the choice, if he wishes, to have any previous leave re-credited in the event that he wishes to re-pay the amount paid on removal. 4. "Dobbie" orders There is some dispute in relation to the terms of the Dobbie orders. Mr Lawrance's suggested orders depart from the Dobbie undertakings in the respects set out below. • Order number 3(i) of Mr Lawrance's suggested order limits the testing to no more than four times in a period of 12 months, and also limits the period of testing to one year up to 6 December 2011. There were no such limits in the undertakings considered by the Full Bench in Dobbie . • Order number 3(iii) of Mr Lawrance's suggested order is in slightly different terms to the relevant order considered by the Full Bench in Dobbie . • Order number 3(iv) of Mr Lawrance's suggested order limits the period of testing to one year up to 6 December 2011. There was no such limit in the undertakings considered by the Full Bench in Dobbie . Our proposed Short Minutes of Order accurately reflect the terms set out in the Full Bench decision in Dobbie . CONSIDERATION 9 Having considered the respective draft orders filed by the parties in the light of Lawrance No 1, and their contentions as to disputed aspects of those orders, I have determined that I shall make, with some minor modifications, the orders proposed by the Commissioner. 10 I propose to make some brief observations in relation to the disputed areas: 1. The evidence in these proceedings revealed that the applicant commenced as a Senior Constable on 26 May 2002. Accepting, as I do, the Commissioner's approach to the operation of the Crown Employees (Police Officers - 2009) Award , and given that the orders should properly derive only from the evidence in the proceedings, this fact may raise some doubts as to whether the applicant should receive the position of Senior Constable, Level 5. Nonetheless, I have also reviewed the matter in light of the parties' discussions which were, no doubt, designed to give some greater clarity to the resolution of this issue. In the result, I determine, for the reasons advanced by the Commissioner, that the applicant shall be re-employed as a Senior Constable, Level 5, Step 1. I note that the phrase, "a position to be determined by the Respondent" appears in paragraph 1 of the draft orders proposed by the Commissioner. The effect of those words is to provide, in my view, that the Commissioner may select a particular position at a specified location in order to give effect to the order made by the Commission to re-employ the applicant in the rank and position of Senior Constable, Level 5, Step 1. Whilst I initially had some misgivings about the incorporation of that phrase in order 1, when seen in that light, I consider that the form of the draft is acceptable. 2. As to the question of 'Continuity of Service' and the "Dobbie" orders, I agree with the submissions advanced by the Commissioner. 11 I also received a submission from the Commissioner as to my recommendation regarding the location for re-employment of the applicant. It was appropriate for the Commissioner to make a submission in response to the recommendation. On balance, and notwithstanding my recommendation, I consider that the Commissioner's approach to the location for re-employment, as described in his submission, is quite reasonable. One additional observation should, however, be made. The submission made on behalf of the Commissioner incorporated an essentially gratuitous comment about alleged statements made by an unnamed officer. No liberty was given to the Commissioner to adduce such fresh material and it did not conform with or derive from the evidence in the proceedings. I have disregarded these remarks. ORDERS 12 The Commission makes the following orders in this matter: 1. The Commissioner of Police shall re-employ Andrew Lawrance as a Senior Constable, Level 5, Step 1 effective from 3 December 2010 in a position to be determined by the Commissioner of Police. 2. The period from the date of removal to the date of re-employment will not count as service for any purpose (and the applicant will not be entitled to any payment for that period), but will not break continuity of service for the purpose of calculating leave entitlements. 3. To the extent Andrew Lawrance was paid, on removal, for leave entitlements accrued prior to that date, the leave will not be re-credited unless the applicant repays the relevant payments. 4. The re-employment of the Andrew Lawrance is subject to the following conditions: (a) When he is on duty (as distinct from being rostered on duty), he will submit to testing by an authorised person for the presence of alcohol at least once per year; (b) He is not necessarily to be given notice of the time of testing; (c) He may not refuse or fail to undergo a breath test or breath analysis in accordance with a direction of an authorised person; (d) Any testing is to continue for such period he remains a member of NSW Police Force or a shorter period as determined by the Commissioner of Police; (e) He will not be eligible for promotion before 4 December 2011; and (f) He will receive a final written warning in a form determined by the Commissioner of Police, as to any future behaviour. 13 These orders shall operate on and from 2 December 2010. _________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.