Industrial Relations Commission of New South Wales CITATION: Police Association of New South Wales and Commissioner of Police [2008] NSWIRComm 176 APPLICANT Police Association of New South Wales PARTIES: RESPONDENT New South Wales Police Force FILE NUMBER(S): IRC 892 of 2008 CORAM: Sams DP Industrial dispute - jurisdiction of the Commission - New South Wales Police Force - revocation of Leading Senior Constable status - officer on sick leave - performance issue - prisoner escape from custody - reduction in salary - application of Leading Senior Constable Guidelines - Award provisions - review of revocation - whether sick leave prevented revocation - whether review decision binding - review decision overturned - whether reversal of decision based on procedure or merit - procedural unfairness alleged - mitigating factors - training of officer - usual procedures - whether Commission should make determinations and recommendations. CATCHWORDS: Held; no jurisdiction to make determinations - unusual and unique set of circumstances - Association's submissions inconsistent - Association and officer sought clarification of effect of sick leave on revocation - not unreasonable to seek clarification - review decision not final - review decision made preliminary findings on merit - no breach of Leading Senior Constable Guidelines - no breach of the Award - sick leave clause did not prevent management from acting on sustained finding of poor performance - extensive evidence as to mitigation - first review may have been distracted - Commission refrains from making findings on merit - second review recommended - length of inquiry as to effect of sick leave clause unfair to officer - amount of repayment recommended - concern at delay in decision making - recommendation made. LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 CASES CITED: Crown Employees (Police Officers - 2005) Award 354 IG 175 HEARING DATES: 26 August 2008; 1 September 2008 DATE OF JUDGMENT: 15 October 2008 APPLICANT Mr M Spring Police Association of New South Wales LEGAL REPRESENTATIVES: RESPODENT Mr N Quinn New South Wales Police Force JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 15 October, 2008 Matter No IRC 892 of 2008 Notification under section 130 by Police Association of New South Wales of a dispute with Commissioner of Police re reinstatement of member DECISION [2008] NSWIRComm 176 1 The Commission has been requested to make recommendations pursuant to s 136(1)(a) of the Industrial Relations Act 1996 ('the Act') in a dispute between the Police Association of New South Wales ('the Association') and the New South Wales Police Force ('the Force'). In essence, the dispute concerns the revocation of the Leading Senior Constable status of Senior Constable (SC) David Sharman whilst he was on approved sick leave. As a consequence of the revocation of his Leading Senior Constable status, he was reduced in salary from Leading Senior Constable Level 1 Step 2 ($73,893pa) to Senior Constable Level 4 Step 1 ($68,827pa). 2 The reason for the revocation was identified in a letter from Superintendent Peter McErlain to SC Sharman dated 18 June 2007, in which the Senior Constable was advised that he had been found guilty of 'failing to perform your duties in a competent manner and that you were deficient in competencies which are expected of an officer at the rank of LSC'. This finding arose as a result of an incident at St George Police Station on 18 January 2007, in which a prisoner had escaped from the police station cells whilst SC Sharman was the Custody Manager. Although SC Sharman made no formal challenge to the investigator's adverse findings against him, he believed he was punished twice for the one incident in that he received a formal warning in addition to the loss of his Leading Senior Constable status. 3 The industrial dispute was filed by the Association on 13 June 2008 and was subject to a number of compulsory conferences chaired by the Commission. Ultimately, the dispute remained unresolved and the parties sought the Commission's assistance by making recommendations after a formal hearing of their respective arguments. At this juncture, I note that both parties reserve their rights under the Act, in respect to any future arbitral proceedings. BACKGROUND 4 Relevant to the Commission's consideration of this matter are a number of background documents. The first of these is the Leading Senior Constable Guidelines ('LSC Guidelines'), the current version of which was published in 2004. 5 Leading Senior Constable positions are of relatively recent origin, having been first introduced in 2001 following the signing of a Memorandum of Understanding (MOU) on 26 April 2001, between the Association and the Force. The MOU ultimately became the Guidelines. Importantly, it is to be noted that Leading Senior Constable positions are not additional or promotional positions, nor is it a designated 'rank' in the New South Wales Police Force under the Police Act 1990 or the Police Regulations. The positions were created under the relevant Award to provide for salary increases to Senior Constables, of at least seven years standing, in recognition of the skills and attributes of a particular officer. These are measured by a weighted process based on the following three elements: a) CAS (test) ranking assessment 50% b) Peer assessment 25% c) Workplace management team ranking 25% Having obtained Leading Senior Constable status, the successful officer is regularly reviewed. 6 SC Sharman has been a Police Officer for 14 years and was appointed a Leading Senior Constable in March 2006 in the St George Area Command. He entered into a Performance Agreement to that effect on 10 March 2006 which contained, inter alia, the following recitals: 1. I understand and agree to be consistently rostered to perform first response and/or proactive General Duties policing. I will perform the full range of front line policing activities normally associated with General Duties. I will work closely with less experienced Constables and provide support, mentoring and guidance in all aspects or operational situations. I will be utilised as a Field Teaching Officer to supplement and support the existing Field Teaching Officers in Local Area Commands. 2. I understand and agree that as part of my ongoing participation as a Leading Senior Constable my performance is subject to at least quarterly assessment by my supervisor over time, and that competent performance in the provision of situational leadership, and being available to, and approachable by, junior officers who seek helpful and reliable guidance, mentoring or tutoring, whether in my role as a Field Teaching Officer or otherwise, is a condition of my continued appointment to the classification. Should my performance be unsatisfactory then action will be taken by the Commander to cease my appointment as a Leading Senior Constable. 3. I also understand and agree that my probity, including my integrity and conduct both on and off duty will form part of the ongoing assessment of my performance and continued eligibility for appointment, together with the passing, at or above the prescribed mark, of an annual LSC GD CAS Test. I acknowledge that concerns as to my probity, integrity or conduct, either on or off duty, including any "failure to act" on my part, may lead to immediate consideration of the continuation of my appointment. 7 Three specific provisions of the LSC Guidelines are relevant to the present dispute. Firstly, cl 12 deals with sick leave and, in particular, provides that a Leading Senior Constable who suffers a work related injury or illness will maintain their salary and classification. The provision is expressed as follows: SICK LEAVE ... Work Related Injury or Illness If a Leading Senior Constable suffers a work related injury or illness (HOD or Workers Compensation), they will have their Leading Senior Constable salary and classification maintained for all periods of leave associated with such injury/illness. This provision will also apply to any period in which they are participating in a rehabilitation program prior to resumption of full duties as a Leading Senior Constable. If a Leading Senior Constable is unable to resume their pre-injury operational role, they will be offered suitable alternate duties wherever reasonably practicable in accordance with the NSW Police Restricted Duties Policy. Given that the officers ordinary rate of pay at the time of the injury / illness was at the Leading Senior Constable level, this rate will be maintained in any alternate duty placement, despite relinquishing the Leading Senior Constable position and title. This is in accordance with section 40 of the Workers Compensation Act, which provides for a weekly payment of compensation to an injured worker in circumstances where a work related injury causes a reduction in weekly earnings. 8 On 14 February 2007, LSC Sharman reported off duty on sick leave with a Hurt on Duty (HOD) workers' compensation injury and has remained off duty since that time. He is currently pursuing a medical discharge from the Force. There was no argument that this injury was unconnected to the incident on 18 January 2007. 9 Secondly, cl 14 of the LSC Guidelines provides for the ongoing performance assessment of a Leading Senior Constable. It is noted that the revocation of a Leading Senior Constable's appointment is not 'reviewable action' pursuant to s 173 of the Police Act 1990. Clause 14 provides as follows: PERFORMANCE AGREEMENT / QUARTERLY REVIEWS All officers who have been appointed as a Leading Senior Constable must sign a performance agreement located on the Intranet under HR Forms. The performance agreement should be signed prior to taking up appointment as a Leading Senior Constable, or as soon as possible thereafter. The performance agreement requires ongoing assessment of the Leading Senior Constable's work performance and service delivery. It is essential that quarterly and annual reviews are conducted by the office's supervisor to identify any deficiencies. Where performance issues are identified as part of a quarterly review, appropriate remedial action and assistance should be identified and put in place to enable the Leading Senior Constable to meet the required standard. If the next quarterly review still identifies performance issues, or that the Leading Senior Constable has not taken appropriate steps to remedy such identified issues, the Commander must give consideration as to the office's suitability to remain as a Leading Senior Constable. Revocation of an officer's appointment does not form part of the "reviewable action' under s 173 of the Police Act 1990. There is no review open to an officer where revocation of appointment as a Leading Senior Constable was due to the necessity to implement a formal remedial performance agreement or program. ... 10 Thirdly, the LSC Guidelines provide for a review process in the event an officer wishes to appeal either, non-selection or revocation of the Leading Senior Constable status. It is necessary to outline the full detail of the provision as follows: 3. Selection / Revocation Review Process The following review process has been agreed to in order to monitor the selection, appointment and revocation of the Leading Senior Constables classification. This will be the responsibility of a specially convened panel comprising of: 1x Regional Human Resources Manger 1x Commander, and 1x Police Association executive representative. Each of the above officers should not involve anyone who participated in the process for the particular Leading Senior Constable opportunity. Officers requesting a review are to make their request by electronic means to their relevant Region Human Resources Manager. the review request should be as brief and succinct as possibly and contain the following information: § the personal details of the officer; § the nature of the review sought; § the reasons why the review request has been made; § the nature of the evidence relied upon to substantiate the review request; § and the outcome sought. All applications for review must be lodged within 2 weeks of the officer being informed of their revocation or non appointment. Reasons for which an officer may request a review are: 1. The Commander deviates from the final ranking order and fails to accept an officer nominated for appointment. 2. An officer received an unsatisfactory performance, attendance or probity report and accordingly was not appointed. 3. An officer's ranking by the Workplace Management Team was lower than believed appropriate, and the officer was not going to be appointed within the Local Area Command to which they had applied. 4. An officer's probity, conduct or integrity is called into question after appointment and their appointment is revoked. 5. An officer's performance has been assessed as unsatisfactory, including as a Field Teaching Officer, and/or in the demonstration of one or more competencies, and as a consequence, the officer's appointment has been revoked. 6. The incremental level or step of a Leading Senior Constable has been reduced. There is no review open to an officer where revocation of appointment as a Leading Senior constable arises in any of the following circumstances: i. Loss of civilian driving licence or certification to drive police vehicles; ii. The result achieved in the peer assessment ranking; iii. Not achieving 80% in the annual Leading Senior Constable CAS test, after failing the test on the third attempt. iv. The necessity to implement a formal remedial performance agreement or program, including under the assessment process as an field Teaching Officer (sic); v. The necessity to defer an officers' incremental progression; vi. Suspension of the officer. Process The Region Human Resource Manager should decide on the best location in which to hold the review, based on the locations and numbers of officers requesting the review, and the locations and numbers of officers who might be called upon to assist the review panel and any costs that may be involved. Region Human Resource Managers should consider: the nature of the review; whether or not there may be a number of reviews requested for similar reasons; whether or not the officer requesting the review has standing to request such a review; the possible impact of any decision, and should act accordingly. In considering their role and in the conduct of any review, review panels should be award of the following: a. reviews in relation to selection and performance decisions are to be undertaken on both the merit and process applied; b. any final decision of a review panel to amend the ranking order should not be taken until any other officer who may be adversely affected has been given an opportunity to be heard; c. the rules of evidence and procedure shall not apply; d. review panels shall inform themselves by any reasonable means available to them. Costs are to be a consideration; e. no party shall be entitled to be represented; f. review panels are to consider matters as expeditiously as possible; g. review panels may request evidence or information to be presented verbally or in writing. Costs are to be a consideration; h. review panels are to make their decisions based on equity, good conscience and on the substantial merits of the evidence, material and arguments presented; and i. regard is to be had to the principles of Employee Management. The unanimous or majority decisions of review panels are binding. However, a limited capacity exists for the Executive Director, Human Resource Services, to review a decision of the review panel (see Further Review section below). Decisions of the panel are to be provided to the Human Resource Manager establishing the panel, who in turn is to expeditiously inform the officer requesting the review of the decision of the panel, and is then to take whatever action is appropriate in the light of that decision. Review panels are not required to give written reasons but should fully articulate to the officer seeking the review the nature of the deliberations and the basis of the decision upon request. In reviewing the merits of any situation, such review will not include a review of any peer ranking or peer feedback, nor any review of CAS outcomes. Reviews are as to merit and process and are not to be lodged against individuals. However, any officer whose ranking may be affected y a decision of a review panel is also to be given an opportunity to be heard before any final decision is made. Further Review Where it can be demonstrated that the review panel has not followed the proper procedure as detailed in these guidelines, an officer may request a review of the review panel's decision by lodging a manuscript report to the Executive Director, Human Resource Services, within two weeks of being advised of the Panel's decision. The relevant Local Area Commander, or Region Human Resource Manager, may also request a review of the panel's decision where they have valid concerns that the panel has not followed procedure. 11 On 12 July 2007, SC Sharman requested a review of the revocation of his Leading Senior Constable classification in accordance with the above provision. A Review Panel was convened on 10 August 2007, consisting of Chief Inspector Peter Barnes, Superintendent Wayne Cox and Sergeant Lawrence Hannon (representative of the Association). 12 SC Sharman provided a written submission to the Review Panel, but was not interviewed. It is relevant to note that in his submission, SC Sharman said: I have discussed this matter with the NSW Police Association Industrial Officer's and their opinion as (sic) that the action I have endured is against protocol. They stated I can't be revoked while on HOD sick leave and can't have my pay decreased while on HOD sick leave even if the revocation is deemed suitable. This is beyond my knowledge but ask you investigate (sic) this matter also. 13 All three members of the Review Panel gave evidence in these proceedings. There was some dispute as to whether the Review Panel actually made a final decision at the time. This will be explored in more detail later. For present purposes, it is to be observed that Chief Inspector Barnes and Superintendent Cox were persuaded by Sergeant Hannon that according to cl 12 of the LSC Guidelines, the Force was prevented from revoking the Leading Senior Constable classification, irrespective of any adverse performance findings against him. Soon after the Review Panel's deliberations, Chief Inspector Barnes queried the matter with the Force's Industrial Branch. I will come to this evidence shortly. 14 Between August 2007 and June 2008 numerous representations were made by, and on behalf of SC Sharman seeking to restore his Leading Senior Constable status. On 24 October 2007, the Senior Constable was given a warning notice for the incident as a non-reviewable action under s 173(1) of the Police Act. The applicant said that when he was given the warning notice, he was told by the Leichhardt Area Commander, Murray Reynolds, that his Leading Senior Constable appeal had been successful. Commander Reynolds later told him that this was incorrect. 15 On 27 November 2007, the Association raised procedural fairness issues in respect to the delay in finalising the matter and submitted that SC Sharman had been punished twice for the same offence (the warning notice and the loss of his Leading Senior Constable status). 16 In a letter to the Association dated 29 January 2008, the Force's Director, Corporate Human Resources, Mr Peter Gallagher said: I refer to your letter of 27 November 2007. Following your representations, the Central Metropolitan Region has requested, in accordance with Section 3 of the Leading Senior Constable (LSC) guidelines, that I review the LSC Review Panel's decision of 10 August 2007 to reinstate Senior Constable Sharman's LSC status. My understanding is that the Review Panel's decision to restore the LSC status to Senior Constable Sharman was on the basis that the LSC guidelines prevent the revocation of an officer's LSC status whilst that officer is on sick leave. Senior Constable Sharman has been on Sick Leave with an approved HOD Workers compensation injury. Section 12 of the LSC guidelines relates to Sick Leave. The spirit and intent of this guideline is to preserve an officer's LSC status in the event that they sustain a work related injury i.e. that revocation should not occur in the event that illness or injury is the sole consideration preventing the officer from performing the LSC role. In Senior Constable Sharman's case there is a serious performance/conduct related issue which ultimately resulted in a sustained finding and a subsequent appropriate recommendation from the Internal Review Panel. It was never the intent of the guidelines to make those officers, who legitimately come under notice for poor performance or conduct, immune from revocation of their LSC status on the basis that they have subsequently proceeded on sick leave. When jointly developed by the New South Wales Police Force and your Association it was agreed that Leading Senior Constables are expected to provide leadership qualities having satisfied stringent criteria in relation to ability, knowledge and experience. They are mentors providing guidance and support to less experienced constables in all aspects of operational duties. The issues that have brought Senior Constable Sharman's status under notice are serious in nature and are not actions consistent with that philosophy. To allow him to retain that status in my view compromises the integrity of the LSC concept. Having given this matter careful consideration I am firmly of the view that the LSC Review Panel erred in its interpretation of Section 12, Sick Leave of the LSC Guidelines. In accordance with the Review Process within those guidelines I have decided to overturn the LSC Review Panel decision of 10 August 2007 and confirm the revocation of Senior Constable Sharman's LSC status. I will be advising St George Local Area Commander of my decision in due course and request that he advise Senior Constable Sharman at the earliest opportunity. The Award Provisions 17 The LSC Guidelines are to be read in conjunction with the Crown Employees (Police Officers - 2005) Award ('the Award'), (since replaced by a 2008 Award). Particular reference is made to Leading Senior Constables at cl 36 as follows: Leading Senior Constables (i) subject to provisions duly agreed between the Commissioner and Association a Non-Commissioned Officer of the rank of Senior Constable may be appointed as a Leading Senior Constable. (ii) The Commissioner may revoke the appointment of a Leading Senior Constable at any time. The circumstances under which such an appointment is revoked shall be subject to provisions duly agreed between the Commissioner and the Association. The revocation of the appointment of a Leading Senior Constable shall not be regarded as reviewable action for the purpose of section 173(3) of the Police Act, 1990. (iii) Incremental progression for Leading Senior Constables shall be subject to the provisions of clause 55 of this Award. (iv) In circumstances where an officer who has previously held an appointment as a Leading Senior Constable, and who has relinquished such appointment with a view to seeking appointment elsewhere, applies for a further appointment, that such officer may, in their application seek appointment at the level and step previously achieved, and if such an officer succeeds in gaining that further appointment as a Leading Senior Constable, then such officer is to be appointed at the level or step previously held. Their incremental date however shall be the date of taking up duty in the new appointment, and such officer shall be required to serve a minimum of twelve months on the level or step at which they were appointed, before being eligible for further incremental movement. These provisions shall not apply to any officer whose previous appointment as a Leading Senior Constable was revoked for any reason whatsoever or who has voluntarily relinquished their appointment in circumstances of adverse performance assessments. 18 The mention in subclause (ii) to 'provisions duly agreed between the Commissioner and the Association' is a reference to the LSC Guidelines. The Association's Evidence 19 SC Sharman deposed that he had never been placed on a work performance or conduct program in 14 years of policing and, in fact, he had been commended for his diligent and ethical service. In January 2007, in his quarterly Leading Senior Constable review, he had been assessed as more than competent to continue as a Leading Senior Constable. 20 SC Sharman gave evidence surrounding the incident on 18 January 2007. He said that although he had participated in a basic custody workshop, about a year before the incident, he had not completed the relevant course to certify competency in that area. In his affidavit, SC Sharman said he had performed the role of Custody Manager subsequent to the incident in the month before he went off sick. SC Sharman also said that the role of Custody Manager was usually filled by the rank of Sergeant or above. It was not the role of a Leading Senior Constable which is to train younger, less experienced officers. When asked if he was aware that any police officer can be appointed a Custody Manager, including probationary constables (although this was discouraged), SC Sharman said he believed Custody Managers could only be Sergeant level or above. 21 SC Sharman said that on the day in question when he left the custody area he had asked the Sergeant on duty, who was the Supervisor in the adjacent room, if he could go and get some lunch. There were three prisoners in custody at the time. SC Sharman described the custody area, the cells and the sliding bolt mechanism of the doors. A metre long bolt is slid across the door and locked up. It was assumed the escapee put his hand through a metal flap in the door and manoeuvred the bolt up and across. Although padlocks were available, the doors were not padlocked, as this was not the usual practice. In cross-examination, SC Sharman accepted that he had left the charge room unattended. After unbolting his cell, the prisoner had found the keys to the dock door in a desk drawer in order to exit the building. After the incident, SC Sharman was told to keep the keys with him. Previously, however, they had always been kept in a drawer, so as to be accessible to other officers. This had been the usual procedure. Nevertheless, he agreed that he had been handed the keys on that day when he took charge of the custody room. 22 SC Sharman was interviewed about two days after the incident. He said that he had fully co-operated with the investigation; he had received advice from the Association and he prepared a statement for the Electronic Recording of Interviews with Suspected Persons (ERISP). At the same time, he had been interviewed over a second allegation of assaulting a prisoner. He pointed out that this allegation was dismissed. SC Sharman did not formally contest the findings of the investigation, but he had made comments to his Commander and the investigator. He noted that a warning notice was not 'reviewable action'. SC Sharman had complained about the investigation as he believed that it did not have regard to his long unblemished service. Nevertheless, he conceded that the warning notice was not at the harsh end of any penalties. However, losing his Leading Senior Constable status was harsh, as he had been penalised twice for the same offence. 23 SC Sharman said he had been informally told that his Leading Senior Constable status had been restored by the Review Panel, but was later told that the Review Panel was seeking further advice about the matter, and no decision had yet been made. Nevertheless, he believed that a majority decision of the Review Panel was binding. He also believed that a decision to overturn a review could only be made if the Review Panel had not followed procedure and a decision could not be overturned on merit grounds. In further oral evidence, he said that, at no time, had he been contacted by the Director, Human Resources about the matter. 24 During cross-examination, SC Sharman was asked about the role and functions of a Leading Senior Constable. He agreed that peer assessment was an integral part of the appointment and retention of the Leading Senior Constable status. He accepted an incident relating to poor performance could affect future peer assessment. 25 SC Sharman agreed that he had asked the Review Panel to consider the sick leave issue on advice from the Association. He accepted that it was not unreasonable for the representatives of the Force to also seek advice about the matter. He also accepted that when Chief Inspector Barnes had sought advice from the Industrial Relations Branch, he was actually carrying out his own request. 26 Mr Lawrence Hannon, is a Sergeant of Police with 25 years service. He is also a member of the Association's Executive. He has regularly participated in Leading Senior Constable Reviews as the Association's representative and was a member of the Review Panel which considered SC Sharman's review. 27 The thrust of Sergeant Hannon's evidence was that the Review Panel had made a unanimous decision to restore SC Sharman's Leading Senior Constable status and that the LSC Guidelines had not been followed, when Mr Gallagher had overruled the Review Panel's decision. Sergeant Hannon believed that had there been any new evidence which might have the potential to reverse the decision, the Review Panel should have, at least, been informed. On the contrary, he had not been consulted, nor informed of the new decision or the reasons for it. 28 Sergeant Hannon said that the Review Panel had considered the incident of 18 January 2007, 'on the papers'. It had been his view that although the matter was serious, SC Sharman's Leading Senior Constable status should not be removed solely due to this incident. As SC Sharman had not previously performed the role of Custody Manager, nor had he been properly trained, it warranted no more than further guidance and advice to him. In oral evidence, Sergeant Hannon described the role of a Custody Manager. He had worked in the position himself. Training involves a one day course to learn the computerisation part of booking a person into custody and a four day course of learning how to look after persons in custody, eg. identifying signs of a person who may be at risk. 29 Sergeant Hannon gave evidence of what was discussed at the Review Panel meeting. The Review Panel members had discussed the reasons for the revocation of SC Sharman's Leading Senior Constable status. They had discussed whether it was warranted to revoke the status for a 'one off' incident in circumstances where the Review Panel did not know what training SC Sharman had had, or whether he had completed the relevant courses. The Review Panel had also discussed the sick leave issue. Sergeant Hannon's evidence was that the sick leave issue was a secondary consideration of the Review Panel. However, Sergeant Hannon insisted that the Review Panel had made a unanimous decision to restore the Leading Senior Constable status. 30 Sergeant Hannon said that there was nothing put to the Review Panel about the practice of padlocking the cell doors. In his experience, padlocking doors did not happen because it was sometimes necessary to open the cells quickly in the event of a serious incident of assault in the cells or damage being done by the prisoners. Sergeant Hannon said that nothing was put to the Review Panel in respect to the location of the keys or the means of access from the custody area. Further, nothing was put to the Review Panel about an assessment of SC Sharman's performance. All the Review Panel was told was that the charge room had been left unattended for a number of minutes and a prisoner had escaped. 31 Sergeant Hannon contended that the process of review contemplated by the LSC Guidelines had been followed, except that the decision of the Review Panel had not been carried out. He had not been contacted by, either Chief Inspector Barnes or Superintendent Cox, and only had contact with Human Resources when he had taken up the issue of the LSC Guidelines not being followed. He had not been informed or consulted as to why this was so. 32 In cross-examination, Sergeant Hannon said that he had been personally involved in the establishment of the Leading Senior Constable classification (in 2001) and in the assessment of the first candidates for the position. Sergeant Hannon did not agree that an applicant for review bears the onus of bringing all relevant matters to the attention of the Review Panel. An applicant is not required to attend the Review Panel's deliberations. Sergeant Hannon noted that it had been seven months from the incident to the Review Panel meeting. He believed that the Review Panel had discussed the circumstances of the incident and the merits of the case. While he agreed the incident was a serious matter, Sergeant Hannon did not believe it warranted removal of SC Sharman's Leading Senior Constable status. The Force's Evidence 33 Chief Inspector Peter Barnes convened the Review Panel. He regarded the 18 January 2007 incident as very serious and one which warranted the loss of Leading Senior Constable status. Chief Inspector Barnes deposed that notwithstanding his view that cl 12 of the LSC Guidelines did not apply where there were sustained findings of poor performance, Sergeant Hannon had been very persuasive to the contrary. However, Sergeant Hannon had not raised any issue about the Senior Constable being denied procedural fairness. Chief Inspector Barnes deposed that had it not been for Sergeant Hannon's persuasive view about cl 12, SC Sharman's loss of Leading Senior Constable status would have been confirmed. After the meeting, Chief Inspector Barnes sought advice on the LSC Guidelines from the Industrial Branch, and later wrote to SC Sharman to advise him that the matter was still pending. 34 In a second affidavit, Chief Inspector Barnes conceded that the Review Panel had agreed that SC Sharman's Leading Senior Constable appointment could not be revoked while he was on sick leave. However, he had not heard this argument before and he later believed the Review Panel had made a mistake. Chief Inspector Barnes accepted that during the Review Panel's discussion Sergeant Hannon had raised mitigating factors, such as the Senior Constable's lack of training. However, he believed that the performance issue was elementary to policing and the incident demonstrated a serious shortcoming on SC Sharman's behalf. He believed Superintendent Cox shared this view. 35 In cross-examination, Chief Inspector Barnes agreed that all of the review processes in the LSC Guidelines had been followed and that the Review Panel had made a decision to reinstate the Leading Senior Constable status. He said that when he had sought advice from the Industrial Relations Branch, he had provided a lengthy memorandum and report to Mr Gallagher concerning the sick leave issue. Chief Inspector Barnes conceded that he should have spoken to Sergeant Hannon about the matter. 36 Superintendent Wayne Cox is Commander of Leichhardt Area Command. SC Sharman's Review was the second review he had participated in. It was Superintendent Cox's view that the incident on 18 January 2007 warranted a revocation of the Leading Senior Constable status and he had said so during the Review. While Sergeant Hannon had raised the issue of SC Sharman's lack of training, Superintendent Cox considered that the incident was a matter of basic policing requirements not being met. 37 Superintendent Cox recalled that when Sergeant Hannon had raised the sick leave question, he had not heard this argument before and he did not accept Sergeant Hannon's view. Superintendent Cox said that he believed the Review had concluded on an uncertain basis, although he accepted that Sergeant Hannon had persuaded him and Chief Inspector Barnes to his view. Following the Review, he and Chief Inspector Barnes discussed the issue and decided to obtain some further advice on the matter. He understood Chief Inspector Barnes had done so. He had also contacted the Industrial Relations Branch and was told that the sick leave provisions did not prevent revocation when performance or conduct issues were established. 38 In cross-examination, Superintendent Cox agreed that the Review Panel had followed the review processes as outlined in the LSC Guidelines. Superintendent Cox had believed that the Leading Senior Constable revocation should stand, but the Review Panel had ended up deciding that it would not revoke the status at that point in time, while SC Sharman was on sick leave. Superintendent Cox agreed that Sergeant Hannon had raised the issue of SC Sharman's lack of training and the limited number of times he had acted as Custody Manager. 39 Mr Gregory Jansen is the Manager of the Industrial Relations Branch of the Force. He provided an affidavit, but was not required for cross-examination. 40 Mr Jansen disputed the Association's contention (later withdrawn) that a Leading Senior Constable position is a promotional position. Mr Jansen referred to the negotiations with the Association in 2003 and 2004 in respect to the LSC Guidelines. His recollection was that the parties had agreed it would be unfair for a Leading Senior Constable appointment to be revoked as a consequence of an officer's inability to meet the Leading Senior Constable performance or conduct requirements, due to being hurt on duty or suffering an illness. This view had resulted in cl 12 being introduced into the LSC Guidelines. However, Mr Jansen deposed that at no time had the Force agreed that cl 12 would protect an officer from having a Leading Senior Constable appointment revoked due to conduct matters. SUBMISSIONS For the Association 41 Mr Spring, in written submissions, outlined firstly the history of the dispute and submitted that the decision to revoke SC Sharman's Leading Senior Constable status was a manifest denial of procedural fairness as he had not even been advised that such a revocation was being considered. The effect was a reduction in salary of $10,000pa (later acknowledged to be $5,066pa) and an estimated loss of $50,000, if SC Sharman was medically retired. 42 Mr Spring further submitted that it was manifestly unreasonable and unjust to revoke the Senior Constable's Leading Senior Constable status in circumstances where: (i) in 14 years year of policing SC Sharman had never been placed on a Performance Management Program; (ii) the incident on 18 January 2007 was a 'one off' for which the Senior Constable had a reasonable explanation; (iii) the incident was not related to his role as a Leading Senior Constable; (iv) the LSC Guidelines require remedial action in respect to any shortcomings, and this did not happen; (v) SC Sharman was not properly trained and had not completed a Custody Manager's Course which involves a four or five day program and on the job experience; and (vi) SC Sharman's undisclosed medical condition may have contributed to his decision making on 18 January 2007. 43 In addition, Mr Spring put that a merit review of the Review Panel's binding decision was inconsistent with the LSC Guidelines, which contemplate a procedural review only. The evidence of all three panel members was that there were no procedural issues relevant to the conduct of the Review and it had been conducted according to the LSC Guidelines. In any event, the LSC Guidelines contemplate that a further review is undertaken by the Executive Director, Human Resources, not the Industrial Relations Branch. 44 In oral submissions, Mr Spring described in detail the two Custody Manager courses and referred to the evidence of Sergeant Hannon in which he had said that the work of Custody Manager is a different job to a Leading Senior Constable's role. Sergeant Hannon was well placed to know, because he had performed a Custody Manager's role and had helped in the development of the original LSC Guidelines. 45 Mr Spring cited the evidence that padlocks were invariably not used to secure the cell doors and that keys to the room were usually held in a desk drawer. He said that if there had been systematic failures resulting in the prisoner's escape, this was not the fault of SC Sharman. Moreover, the full details of these issues, and other mitigating circumstances, were not provided to the Review Panel. 46 Mr Spring put that the Review Panel's decision was clouded by the sick leave issue. He said that the Association had no issue with the clarification of cl 12, but that Mr Gallagher had made a decision outside the LSC Guidelines. All the Association was seeking was that SC Sharman be provided with a fair procedure where he has an opportunity to put all of the mitigating factors that had been raised in these proceedings. Mr Spring said that if there was to be a remittal of the matter, it should take one of two courses - a second review by persons other than those who conducted the first review or the Commission itself, having heard the evidence, might recommend an outcome. 47 As to the remedies sought, Mr Spring submitted that the Commission has jurisdiction to make the following determinations and recommendations: i) That the Review Panel properly constituted came to a unanimous and binding decision to return the Leading Senior Constable opportunity and salary to Senior Constable David Sharman on 10 August 2007; ii) that the procedures outlined in the agreed Leading Senior Constable Guidelines were followed by the Review Panel; iii) that the review of a decision of a Review Panel by the Director of Human Resources is limited to following proper procedures (not merit); iv) that the review sought by Mr Barnes of the unanimous decision of the Review Panel, by raising considerations of merit as opposed to merely issues of policy or the following of proper procedure, was outside the agreed position as reflected in the Leading Senior Constable Guidelines; and v) that the ability to issue orders under Section 136(1)(c) in relation to the compliance with agreed policy and guidelines arising from an award and a memorandum of understanding affecting Leading Senior Constables is not affected by either section 405 of the Industrial Relations Act or Section 88 of the Police Act (see Jurisdiction below). In addition the Police Association seeks the Commission make the following recommendations under s 134(2) of the Industrial Relations Act 1996 (NSW) or in the alternative, recommendations or orders under section 136(1)(a) or section 136(1)(c); a) that the New South Wales Police Force reinstate Mr Sharman's LSC status from the date payment was stopped (including the payment of appropriate remuneration); and b) that the binding decision of the Review Panel stand as a valid outcome in accordance with the agreed Leading Senior Constables Guidelines; in accordance with Clause 36 of the Crown Employees (Police Officer - 2005) Award, Leading Senior Constable. For the Police Force 48 Mr Quinn, in written submissions, also outlined a background to the dispute in which he detailed the role, appointment and revocation processes of a Leading Senior Constable. He submitted that the question before the Commission is 'whether the New South Wales Police acted outside of the agreed position of the parties to the extent that the award provides, in respect to the revocation of Senior Constable Sharman's appointment as an (sic) LSC'. 49 Mr Quinn referred to the investigation of the incident of 18 January 2007, and its finding that the officer had 'failed in his duty to ensure the security of a prisoner'. After the decision, SC Sharman was advised on 18 June 2007, of the revocation of his Leading Senior Constable status which he proceeded to appeal through the Review Panel. 50 Mr Quinn queried whether the Association still relied on the alleged protections offered by cl 12 of the LSC Guidelines. Mr Quinn submitted that neither Superintendent Cox nor Chief Inspector Barnes agreed with Sergeant Hannon's view on the operation of cl 12 of the LSC Guidelines and that this uncertainty was the only reason the revocation of the Leading Senior Constable status was not overturned. Mr Quinn said that, in any event, no final decision had been made as Chief Inspector Barnes had sought advice on cl 12 as to four possible courses of action; whether to: 1. Reconvene the Review Panel after receiving advice on Sergeant Hannon's view. 2. Respond to Sergeant Hannon's view outside of the Review Panel. 3. Convene a new Review Panel. 4. Refer the matter to the Director, Human Resources. 51 Mr Quinn submitted that all of the processes of Review had been followed, including the direct request from the Association for a review by the Executive Director, Human Resources. He said that the merits of SC Sharman's case were discussed by the Review Panel and that it was entirely appropriate that clarification was sought on the sick leave issue. He said it would be against the public interest to restrain the Review Panel from seeking advice on industrial matters. Moreover, it would have been a denial of procedural fairness, if Superintendent Cox and Chief Inspector Barnes overruled Sergeant Hannon without seeking further advice. Mr Quinn put that the Review Panel had not referred the matter for a review of the merit, but only on the operation of cl 12, being a procedural matter. It was plain that the parties agreed and understood that conduct and performance issues might result in a revocation of a Leading Senior Constable position. He said that there was no agreement between the parties, nor was it ever intended that cl 12 would operate to invalidate a revocation of Leading Senior Constable status if it was justified and validly applied. 52 Mr Quinn submitted that the Commission should not determine: a) that Senior Constable Sharman was denied procedural fairness. He had an opportunity to be represented, and was, during the Review process; b) that there were mitigating circumstances surrounding the incident; c) that the merit of SC Sharman's review was put to anyone outside of the Review Panel; and d) that the Leading Senior Constable appointment be reinstated because the Review Panel validly concluded that the sustained finding was in breach of SC Sharman's performance agreement. 53 He said the Commission would conclude that a further review by the Executive Director, Human Resources had occurred and the advice sought on cl 12 was not a review of the Leading Senior Constable appointment, but a review of the procedure. 54 Mr Quinn submitted that the Force may be prepared to consider reconstituting the Review Panel on the basis that cl 12 did not apply and subject to SC Sharman's clarification as to whether further information would be submitted by him. 55 In oral submissions, Mr Quinn put that even though the dispute resolution procedures in the Award had not been followed, the Force's Industrial Branch had attempted to look for any miscarriage of justice in the process of Review. There was none. SC Sharman had not challenged the investigation of the incident. However, the Association now sought to argue that the Review Panel should reinstate the Leading Senior Constable status for a different reason than was previously advocated. Mr Quinn said a valid finding of poor performance had been made, his actions were contrary to the Senior Constable's performance agreement and the decision was never shown to be wrong. The Local Commander had, in fact, already examined the sick leave issue before the Review commenced and had rejected Sergeant Hannon's interpretation of cl 12. 56 Mr Quinn put that Sergeant Hannon's interpretation of cl 12 was wrong for three reasons: firstly, it was never the intention that cl 12 would operate in the manner contended for by Sergeant Hannon; secondly, Mr Jenson's unchallenged affidavit establishes that fact; and thirdly, the sick leave issue was now well and truly settled. Mr Quinn put that if there were mitigating factors, then SC Sharman bears the onus of establishing them, notwithstanding he had been represented, at all times, by Sergeant Hannon. Mr Quinn put that it cannot be right that an employee can derive a benefit from an argument which is shown to be false. Moreover, the additional material cannot now be relied upon to bring about a different result from the Review Panel. 57 Mr Quinn submitted that it would appear that SC Sharman had accepted the investigator's findings because it had also exonerated him of a second allegation of assaulting a prisoner. The Commander was properly informed of the issues and made the correct decision, following a long investigation. He did not take any pre-emptive action against SC Sharman. In any event, Mr Quinn submitted that the LSC Guidelines do not prevent or limit the Director, Human Resources from making a decision as he sees fit, including as to merits. 58 Mr Quinn explained that SC Sharman's real loss was around $2,500pa, as he could have reapplied in November 2007 to have his status restored after six months. The fact he could not do so because he was on sick leave was unfortunate, but out of the control of the Force. In any event, Mr Quinn put that the penalty was at the very low range of penalties for his conduct. 59 Mr Quinn said that the Force's primary submission was that there had been no breach of the Award or the LSC Guidelines and the Commission should not intervene in this dispute. However, if the Commission was minded to intervene, it should do no more than recommend a second review panel which might consider all relevant matters, including the seriousness of the incident and any mitigating factors SC Sharman might rely upon. However, the sick leave issue cannot be a relevant factor in any further review. 60 Mr Quinn added that if the Leading Senior Constable status was restored, Management reserved the right to revisit the penalty of a warning notice arising from the disciplinary action, because the Leading Senior Constable revocation was considered in the context of the penalty to be applied, even though they were two different processes. 61 In reply, Mr Spring asked the Commission to give weight to the evidence of SC Sharman and Sergeant Hannon as to the issue of the locks and the keys relevant to the incident. Mr Spring said no point should be taken with the second allegation against SC Sharman for which he was exonerated. It was irrelevant. CONSIDERATION Jurisdiction of the Commission 62 Before considering the substance of this matter, I would wish to make it clear that I intend to make recommendations in this dispute pursuant to s 136(1)(a) of the Act. I do not believe I have jurisdiction to make 'determinations' as submitted by Mr Spring in his written submission (see par 47). In reaching this conclusion, I would firstly observe that there is no relief available under s 136 of the Act of a kind which can be characterised as a 'determination'. In the arbitration of a dispute, the Commission is only empowered to make a recommendation or direction (ss(a)), or an order (ss (c) and ss (d)) or make or vary an award (ss(b)). Secondly, the notion of the Commission making a determination of the kind proposed, would seem to me to be akin to asking the Commission to make a declaration of a right. Such relief would only be available under the declaratory jurisdiction of the Commission under s 154 of the Act. Of course, that jurisdiction is only exercisable by the Industrial Court, and consequently, would not be available to the Commission, as presently constituted. 63 That said, I note that both parties have accepted that the Commission is seized with jurisdiction to make recommendations under s 136(1)(a) of the Act. In doing so, I accept that neither party has specifically put that they will accept, or be bound by the Commission's recommendation. Indeed, Mr Quinn has stressed that the Force would reserve its rights on any future binding outcome. Be that as it may, (and I do not quibble with the qualification) it has been my experience that recommendations of this Commission, particularly involving disputes between experienced registered organisations, are invariably accepted. Accordingly, I would expect no less than a serious and considered response be given to the recommendations I will make in this dispute. The issues to be considered 64 Turning then to the merits of the dispute, it will be obvious to any interested observer that this is a most unusual and unique dispute. As I apprehend it, there is no relevantly comparative set of circumstances which has been the subject of consideration by, or authoritative decision of the Commission. It is noted that both parties acknowledged that the issue here in dispute was not foreseen, let alone considered when the LSC Guidelines were developed in 2001. This becomes a relevant factor when determining the issue; a matter I will come back to shortly. 65 When read in isolation, cl 12 of the LSC Guidelines appears to be crystal clear and unambiguous. It is little wonder that Sergeant Hannon's interpretation of cl 12 was found to be very persuasive. Seen from another viewpoint, if one accepts that the Review Panel made a binding, merit based decision, with no fault in the procedure, then Mr Gallagher's overturning of that decision was not open to him under a strict reading of the LSC Guidelines. Accepting either proposition, would seemingly put an end to the matter and the revocation of SC Sharman's Leading Senior Constable status should be reversed. 66 However, I do not accept that the issues in this dispute are so obvious as to be readily disposed of in the above fashion. In my opinion, the Association's submissions raise more questions than answers. In the result, I do not believe it is possible, either as a matter of construction (which I am not asked to do), or of fairness to grant the relief sought by the Association. In particular, I am unable as a matter of commonsense, to come to a conclusion that there was either a breach of the Award or the LSC Guidelines by the Force. 67 Before turning to the many unanswered questions, it is necessary for me to identify some of the internal inconsistencies in the Association's submissions. I do not do so to be overly critical (indeed, I consider Mr Spring did an admirable job with a complex and unusual set of circumstances), but, rather to demonstrate that the answer to the dispute is not as clear cut as the Association submitted. 68 That said, it seems to me that the Association's case rested on two fundamental propositions: 1. The Review Panel had considered merit issues and reached a decision which was binding and could not be reviewed, except on procedural grounds, and no such grounds could be identified; and/or 2. If the Review Panel had made a merit based decision it did so without taking account of a number of mitigating factors which had now been plainly identified in these dispute proceedings. This gave rise to a claim by the Association of procedural unfairness. 69 It was said that a secondary, but no less decisive factor in all of this, was the opinion that the Review Panel had no option but to restore SC Sharman's Leading Senior Constable status because of the plain wording of cl 12 of the LSC Guidelines. With respect, I cannot agree. It is somewhat unclear from Mr Spring's submissions where this issue eventually ended up in the mix of the argument. It was certainly a relevant matter in the Association's witness evidence. It would seem the cl 12 issue was heavily relied upon (at least initially), and backed away from towards the close of Mr Spring's case. It is little wonder that Mr Quinn was somewhat confused as to what part this issue played in the dispute - so was I. 70 Even so, as the Association's case unfolded a number of internal inconsistencies emerged in its submissions. For example, notwithstanding that one of the Association's primary arguments was that SC Sharman was denied procedural fairness, Mr Spring successfully cross-examined Chief Inspector Barnes and Superintendent Cox to establish that there was no procedural faults in their Review. Secondly, it appears to me to be difficult to argue that the Review Panel's decision was binding, but at the same time submit that the decision had not taken account of relevant matters. Thirdly, I do not understand how it is possible to argue that if a binding decision was not reviewable, it was reviewed by the wrong person, ie the Industrial Relations Branch and not the Executive Director, Human Resources. Fourthly, both the Association and SC Sharman had asked for advice about the effect of cl 12. Yet it is now submitted that Mr Gallagher acted outside the LSC Guidelines when he provided that advice. How is it logical to accept on the one hand, that Mr Gallagher's clarification was correct, but, on the other hand, submit that Mr Gallagher had acted outside the LSC Guidelines. How can he be right and wrong at the same time? 71 It was the Association's submission that the Commission should make findings on the incident of 18 January 2007 based on the substantial evidence and material put in the proceedings by both parties. While Mr Quinn strongly argued that the Commission was not in a position to make such findings, he was obliged to bring evidence and make submissions against the case advanced by the Association. Notwithstanding the emphasis by both parties on the circumstances surrounding the incident of 18 January 2007, I do not intend to make any findings on the incident. 72 The Association argued that the Review Panel did not have sufficient grounds to arrive at the conclusion it did, based on all the relevant information about SC Sharman's lack of training and the existing practice of locking cells and storing keys. To reiterate, this is a curious submission in light of the Association's other submissions that the Panel's decision was final and binding; that the LSC Guidelines prevented a merit review; and, in any event, the decision to revoke the Leading Senior Constable status was not possible while SC Sharman was on sick leave. 73 In my view, the various submissions of the Association invite only one irresistible conclusion. I shall come to that conclusion shortly. Before doing so however, I would pose and answer a number of questions which will serve as a backdrop to my eventual thinking on the matter. Did the Review Panel really make a final decision? 74 Based on the evidence of Chief Inspector Barnes and Superintendent Cox, I do not consider it realistic to conclude that the Review Panel came to a final and binding decision on 10 August 2007. That Chief Inspector Barnes and Superintendent Cox were unsure as to Sergeant Hannon's interpretation of cl 12, cannot be disputed. Chief Inspector Barnes immediately sought clarification of the matter from the Force's Industrial Relations Branch. It was abundantly clear from their evidence that, had the issue not been clouded with the uncertainty over the effect of cl 12, their decision would have been not to reinstate SC Sharman's Leading Senior Constable status. 75 It would seem to me that if the Review Panel had made any decision at all, it was a preliminary one, based primarily on merit. The majority of the Review Panel only wished to have Sergeant Hannon's forcefully put view clarified before confirming their decision. When viewed in this way, it would be open to conclude that the inquiry as to cl 12, really did amount to a review based on procedure, and, therefore not contrary to the LSC Guidelines. In my view, the inquiry as to cl 12 was, in effect, a procedural step and therefore not barred from review by Mr Gallagher. 76 In finding that no final decision had been taken by the Review Panel, I would rely on the evidence of SC Sharman himself. In his request for a Review, he pointed out that there was at least some doubt about the effect of cl 12. He specifically invited the Review Panel to consider the effect of cl 12, which no doubt resulted in the inquiries to the Industrial Relations Branch. There is nothing remarkable or unreasonable about the course Chief Inspector Barnes adopted. Indeed, it was entirely appropriate. Perhaps, the clarification should have been sought before the Review Panel met. In any case, I do not consider that SC Sharman was in any doubt that the matter was not resolved to finality. The fact that he may have been told by the Association, through contact from Sergeant Hannon, was not official confirmation, nor was the Local Area Commander's advice that his Review had been successful (which was later acknowledged as a mistake). He would have been under no illusion as to the true position when his payment was not restored, or when Chief Inspector Barnes advised him on 24 August 2007, that he was unable to give him a decision at that time because of the ongoing inquiries. 77 In any event, I find that the Review Panel did not make a final and binding decision on 10 August 2007. It must follow that there was no breach of the LSC Guidelines or the Award. Does cl 12 of the Leading Senior Constable Guidelines operate in the manner contended for by Sergeant Hannon? 78 The uncontested evidence was that no one who had been involved in negotiating the 2001 LSC Guidelines or having been involved since, had intended cl 12 to protect an officer from justified disciplinary action. The true intent of cl 12 is, as Mr Gallagher described it, to prevent the Force from revoking a Leading Senior Constable status by the express reason of the officer being injured or ill. This is an entirely unexceptional and rational interpretation. The clause cannot possibly be read as Sergeant Hannon contended for. It would have the ludicrous result, as Mr Quinn suggested, of an employee gaining a benefit from an argument found to be patently false. 79 Wisely, I think, the Association has not strongly pressed the Commission to adopt the interpretation of cl 12, as contended for by Sergeant Hannon. In his evidence Sergeant Hannon described the issue of the sick leave clause as 'secondary' to his primary view that the 'one off' incident on 18 January 2007, did not warrant revocation of the Leading Senior Constable status. Had the matter rested there, there is little doubt that he would have been outvoted by two to one on the Review Panel. Nevertheless, it was Sergeant Hannon's persuasive advocacy which convinced Chief Inspector Barnes and Superintendent Cox, at least temporarily, that cl 12 operated to prevent revocation of SC Sharman's Leading Senior Constable status. While I accept Sergeant Hannon's view was based on a strict literal reading of the provision, and he did a sterling job in advocating his member's case, it was obvious that these circumstances had not been encountered before. Both as a matter of common sense, and of ensuring industrial justice, I cannot possibly see how cl 12 could operate to prohibit the Force from revoking a Leading Senior Constable status due to poor performance or misconduct. To do otherwise, would be an absurd and perverse triumph of form over substance. Was Senior Constable Sharman denied procedural fairness? 80 As I earlier noted, I am satisfied the Review Panel had made a preliminary decision on merit. Mr Spring established in cross-examination that no procedural defect could be found in the process of review. On the other hand, it was strongly pressed that the Review Panel did not have before it, and/ or properly take into account, a number of mitigating factors resulting in SC Sharman being denied procedural fairness. Chief Inspector Barnes and Superintendent Cox were satisfied that the failure to secure the prisoner was a serious matter warranting the revocation of the Leading Senior Constable status. I would agree the incident was a serious one. Nevertheless, it is impossible to ignore the evidence brought in these proceedings which went to: 1. The usual procedure for securing the cell doors without locks. 2. The usual practice of storing the keys to the area in a desk drawer. 3. The incomplete training of SC Sharman in custody management. 4. The possible effect his undiagnosed injury had on his judgement on the day. 81 It must be acknowledged that Sergeant Hannon did raise mitigating factors on SC Sharman's behalf during the Review. I do not wish to imply that had Chief Inspector Barnes and Superintendent Cox been given more information, that they would have necessarily changed their view of the merits of the matter. Nor do I intend to impose my own view of the merit of the matter. Nevertheless, the circumstances here disclosed, does raise the possibility that the Review Panel may have been distracted from a closer inquiry of the relevant material, or may not have requested further information, because of the clinching argument that the Review Panel had no option but to restore the Leading Senior Constable status because of cl 12 of the LSC Guidelines. 82 Be that as it may, the reality is that mitigation factors were extensively canvassed in these proceedings by both parties through evidence and submissions. As I said, I do not intend to make conclusive findings on them. However, I believe that it would be in the interests of fairness for a further review and reconsideration in the light of all the circumstances which have since come to light in these proceedings. Obviously, a second review should not involve any of those members of the previous review and should be constituted and concluded, as soon as practicable. 83 I note that SC Sharman believes that he has been punished twice for the same 'one off' incident. That said, I accept that the warning he received was at the lower end of the range of disciplinary action, because of the management's knowledge that Senior Constable Sharman would lose his Leading Senior Constable status as well. It follows that the warning penalty may have been greater if the Leading Senior Constable status had not been revoked. 84 One further matter requires my comment. It was not made entirely clear to the Commission why it took so long from Chief Inspector Barnes' initial concern as to the effect of cl 12 (soon after 10 August 2007), to the final decision of Mr Gallagher on 29 January 2008 - a period of almost six months. 85 It will be readily seen that the review process is intended to be a streamlined and relatively speedy process, with minimum formality. An application for review must be lodged by the officer within two weeks of his / her revocation. The review is to be conducted without regard to the rules of evidence and no party may be represented. 86 When viewed in this context, and having regard to what I believe was a completely straightforward and readily ascertainable clarification of cl 12 of the LSC Guidelines, I do not consider that it was reasonable or fair to Senior Constable Sharman that the decision took almost six months to be finalised. In saying that, I accept there were numerous exchanges between the parties during that time in an effort to resolve the impasse. Nevertheless, I would propose to recommend that, SC Sharman should be entitled to the difference between his Leading Senior Constable salary and his substantive position, from one month after the decision of the Review Panel, ie 10 September 2007 and the final decision on 29 January 2008. In my view, one month was more than enough time to investigate and determine the inquiry as to the effect of cl 12 of the LSC Guidelines. 87 Finally, I would also express my concern with the time it took from the incident on 18 January 2007 to the decision of Superintendent McErlain to revoke the Leading Senior Constable status on 18 June 2007. After all, SC Sharman's formal interview was only a few days after the incident. While I accept that a thorough and rigorous inquiry is necessary in any investigation of an officer's misconduct (obviously, so as to avoid any allegation of procedural unfairness), it is difficult to comprehend why a matter of this kind took six months from interview to decision. An unreasonable delay may draw a similar complaint of unfairness as it would if an allegation of misconduct was not properly investigated. There may be extenuating circumstances, of course. I am unsure if there were in this case. Nevertheless, I raise this matter as another example, of the concern the Commission has expressed on other occasions about delays in internal disciplinary investigations within the New South Wales Police Force. Recommendations 88 Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Industrial Relations Commission recommends that: 1. A second review be undertaken of the revocation of Senior Constable Sharman's Leading Senior Constable status on 18 June 2007. 2. Such a Review should be conducted by a Review Panel consisting of three persons other than those who conducted the first review on 10 August 2007. 3. The Review shall be conducted according to the process outlined in the Leading Senior Constable Guidelines agreed between the Association and the New South Wales Police Force. 4. Senior Constable Sharman shall be permitted to bring such other material as he may seek to advance in support of his position at the Review and should be allowed to attend in person if he chooses to do so. 5. The Review should take place as soon as it can be mutually agreed between the parties. 6. SC Sharman should be paid the difference between his Leading Senior Constable status and his substantive rank for the period between 10 September 2007 and 29 January 2008. 7. Clause 12 of the Leading Senior Constable Guidelines should be amended so as to make clear that the clause does not operate such as to prohibit the Police Force from revoking an officer's Leading Senior Constable status following a sustained adverse finding on performance or conduct grounds. 8. Liberty to apply is available to the parties in respect to any issues arising from these recommendations or in respect to any other application that might be made under the dispute provisions of the Act. Peter J Sams, AM Deputy President 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.