McDonald v Commissioner of Police [2011] NSWIRComm 24

Industrial Relations Commission New South Wales Medium Neutral Citation: McDonald v Commissioner of Police [2011] NSWIRComm 24 Hearing dates: 18 October 2010; 26 November 2010 Decision date: 22 March 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: 1. Applicant reinstated 2. Parties to draft appropriate orders reflecting terms of decision 3. Listed for making of Orders and hearing of any necessary argument on 30 March 2011 at 9.45 am Catchwords: POLICE ACT 1990 - Removal of officer for lack of Commissioner's confidence - s 181E review - conduct and integrity called into question - high range PCA and driving offence resulting in property damage - drinking off-duty - abuse and mistreatment of police officers attending scene of accident - attempt to have police ignore accident and PCA -recent warning involving drunken off-duty behaviour - officer attends party and consumes alcohol poured by others - passes out and wakes to find his body covered in obscene images and words - officer accepts responsibility for conduct - conduct result of high level of inebriation - not usual conduct - counselling received over extended period - psychiatric evidence that officer has overcome reliance on alcohol and capable of resuming duties - competing considerations in evaluating harshness of dismissal - level of alcohol consumption not an excuse but an explanation for behaviour not normally exhibited - support of serving officers - apart from two recent issues involving drunken behaviour good work record - conduct unacceptable but dismissal harsh - reinstatement ordered with conditions. Legislation Cited: Police Act 1990, s 181D(3)(a) s 173 The Road Transport (Safety and Traffic Management) Act 1999 Cases Cited: Burrows and anor v Commissioner for Police [2001] NSWIRComm 333 Commissioner of Police v Collins [2008] 180 IR 191 at [53]) Commissioner of Police v Dobie (2006) 157 IR 44 Commissioner of Police v Industrial Relations Commission (2009) 185 IR 458 at [77] Commissioner of Police v Sewell (2008) 180 IR 91 Flanagan v Commissioner of Police (2008) 180 IR 85 Formston v Police [2006] NSWIRComm 88 Lawrance v Commissioner of Police [2010] NSWIRComm 149 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (NSW Branch) [1973] AR (NSW) 231 at 233 Oswald v NSW Police Service (1999) 90 IR 42 at 67-68 Wells v Commissioner of Police (2000) 100 IR 106 Texts Cited: Diagnostic And Statistical Manual of Mental Disorders, Fourth Edition published by the American Psychiatric Association Category: Principal judgment Parties: Adam McDonald (Applicant) Commissioner of Police (Respondent) Representation: Mr B Docking of counsel (Applicant) Ms R Raper of counsel (Respondent) Lough Wells Duncan Lawyers (Applicant) Henry Davis York (Respondent) File Number(s): IRC 2013 of 2009