McDiarmid v Commissioner of Police [2012] NSWIRComm 100

Industrial Relations Commission New South Wales Medium Neutral Citation: McDiarmid v Commissioner of Police [2012] NSWIRComm 100 Hearing dates: 9, 10, 17 August 2012 Decision date: 06 September 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: (1) The Order made on 14 May 2012 pursuant to s 173(2) of the Police Act 1990 in respect of Sergeant Michael McDiarmid is revoked. (2) The Interim Management Plan imposed on Sergeant McDiarmid dated 13 March 2012 shall constitute a Conduct Management Plan including demotion from Sergeant to Senior Constable Level 6. (3) The Conduct Management Plan referred to in Order (2) hereof shall apply from the date of this decision for a period of six months. (4) Upon satisfactory completion of the Conduct Management Plan by Senior Constable McDiarmid he shall be reinstated to the rank of Sergeant. (5) In the event of any dispute regarding satisfactory completion of the Conduct Management Plan liberty is given to either party to refer the dispute to the Commission on reasonable notice. Catchwords: POLICE - Application by Sergeant of Police for review of an order made by the Commissioner of Police under s 173(2)(a) of the Police Act 1990 - Whether order of Commissioner was beyond power because conduct of police officer did not constitute misconduct - Whether penalty of demotion was harsh, unjust or unreasonable - Whether the applicant, through his communications with junior officers, demonstrated a lack of courtesy and respect for colleagues and a consequent failure to meet the standard of behaviour required of a Sergeant acting in a supervisory capacity - Whether the applicant had not learned from earlier admonitions regarding his conduct - Whether the applicant demonstrated a lack of understanding of his leadership role - Misconduct found to have occurred - Demotion not harsh, unjust or unreasonable - Applicant to be reinstated to Sergeant after six months subject to satisfactory completion of Conduct Management Plan Legislation Cited: Interpretation Act 1987 Police Act 1990 Summary Offences Act 1988 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Commissioner of Police v Collins [2008] NSWIRComm 162; (2008) 180 IR 191 Commissioner of Police v Skelly [2010] NSWIRComm 18; (2010) 192 IR 195 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Hornsby Shire Council v Hunt [2002] NSWIRComm 158; (2002) 115 IR 461 Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159 North v Television Corporation Ltd (1976) 11 ALR 599 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Reid-Frost v Commissioner of Police [2010] NSWIRComm 2; (2010) 192 IR 363 Starr v Commissioner of Police [2001] NSWIRComm 226 Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 Zoological Parks Board of New South Wales v Australian Workers' Union, New South Wales [2004] NSWIRComm 85; (2004) 135 IR 56 Category: Principal judgment Parties: Michael Colin McDiarmid (Applicant) Commissioner of Police (Respondent) Representation: Mr J Trew QC (Applicant) Ms E Raper of counsel (Respondent) Toomey Pegg, Lawyers (Applicant) Bartier Perry, Lawyers (Respondent) File Number(s): IRC 626 of 2012