Industrial Relations Commission New South Wales Medium Neutral Citation: Klazidis v Commissioner of Police [2016] NSWIRComm 1014 Hearing dates: 4 & 5 April 2016 Decision date: 22 April 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application by Chris Klazidis is dismissed Catchwords: UNFAIR DISMISSAL – charge of affray – applicant pleads guilty – sentenced to eighteen months imprisonment with nine months non­parole period – on appeal custodial sentence set aside – bond imposed and no conviction recorded – disciplinary process – allegations of serious misconduct – NSW Police Force Code of Conduct and Ethics – NSW Police Force Statement of Values – four allegations of misconduct found proven – decision to terminate applicant's employment – character evidence – seriousness of the misconduct – factors of aggravation and mitigation – considerations of fairness, reasonableness and harshness – fresh and independent review of the decision – cowardly attack by applicant on victim – applicant walked away as victim lay unconscious on roadway Legislation Cited: Industrial Relations Act 1996 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Police Act 1990 Cases Cited: Rose v Telstra Corporation Limited Print Q9292, 4 December 1998 Burge v NSW BHP Steel Pty Limited [2001] 105 IR 325 Hosemans v Commissioner of Police (No 2) [2005] 138 IR 159 Commissioner of Police v Evans [2006] NSWIRComm 170 Commissioner of Police v Dobbie [2006] NSWIRComm 285; 157 IR 44 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Commissioner of Police v Lawrance [2011] 208 IR 139 Flanagan v Commissioner of Police [2010] NSWIRComm 7 Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Evans v Commissioner of Police [2005] NSWIRComm 404 Dobbie v New South Wales Police [2006] NSWIRComm 12 Flanagan v Commissioner of Police [2009] NSWIRComm 106 Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 Category: Principal judgment Parties: Chris Klazidis (Applicant) Commissioner of Police (Respondent) Representation: Counsel: C O'Neill (Applicant) M Seck (Respondent) Solicitors: Smythe Wozniak Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2016/13481 (IRC 866 of 2015) dECISION 1. Chris Klazidis has made an application to the Commission pursuant to section 84 of the Industrial Relations Act 1996 following his dismissal on 4 September 2015 from the NSW Police Force where he had been employed as a Financial Analyst. Except for a brief period between 2011 and 2013, when he was running his own small business, the applicant had been employed in the NSW Police Force in a variety of administrative roles since 1990. Apart from the incident which led to the termination of the applicant's employment, he had not been the subject of any disciplinary action and had no prior criminal record. Incident leading to the dismissal 1. On the evening of Friday 5 December 2014 the applicant was out in the central business district of Sydney celebrating with a number of friends. Those friends included brothers George and Christos Terizis, Nick Pizanias and Alex Caruana. According to the applicant, the group dined at the Hellenic Club where he consumed approximately four alcoholic drinks. They then moved on to the Hilton Hotel where the applicant consumed a further three or four alcoholic drinks. 2. At approximately 1.00am on Saturday 6 December 2014 the group left the Hilton Hotel and started walking south on George Street. The applicant and Alex Caruana fell behind the other three. At some point the applicant caught up with Christos Terizis on the corner of George and Goulburn Streets where, according to the applicant, Christos Terizis had blood on his lips and claimed that he had just been punched for no reason. 3. The applicant then proceeded around the corner walking east on Goulburn Street where, to use his description, he "saw some commotion up ahead, which involved George Terizis and Nick Pizanias". What the applicant actually saw, as was revealed in CCTV footage obtained from the World Square complex, was George Terizis and Nick Pizanias bashing a person by the name of Robert Barcroft. The two-on-one attack on Mr Barcroft comprised multiple closed fist punches to the head of Mr Barcroft as well as striking him numerous times with a knee to the upper body and/or head. By the time the applicant arrived on the scene, Mr Barcroft was cowering against a glass window in a defensive posture, trying to protect himself from the fists and knees of his attackers. 4. When the applicant arrived on the scene he joined in the attack by kneeing Mr Barcroft to the head or body and then held down his head or shoulder at roughly knee level while one of the other two assailants delivered a further blow to Mr Barcroft's head. At that point the applicant released his hold on Mr Barcroft who then proceeded to walk west across the driveway of the World Square loading dock with his head turned back looking over his left shoulder at his assailants. At that point Christos Terizis, who was approaching from the other direction on Mr Barcroft's blind side, "king hit" him with sufficient force to knock him to the ground unconscious. The applicant and the other assailants looked momentarily at Mr Barcroft lying prone on the roadway before walking away from the scene without attempting to render any assistance to their victim. Shortly after, the group was apprehended by police. Ultimately, the applicant was charged with one count of affray for his part in the incident. 5. The Brief of Evidence which was subsequently prepared by the police for the Local Court contained statements from a number of police officers who were present at the time when the applicant and the other three assailants were apprehended. In a statement dated 17 February 2015 Acting Sergeant Michael De Ceglie claimed that the applicant said to him words to the effect of "Please, I work for you guys, please". Leading Senior Constable Pattanon Ramungkool claimed, in a statement dated 14 February 2015, that he and the applicant had the following conversation: Applicant: "Said, please don't charge me. I will lose my job." Ramungkool: "Why, what you do for living?" Applicant: "I work at the Police Headquarters." Ramungkool: "Fuck me, are you a copper?" Applicant: "No, I am in the finance section." 1. On 6 March 2015, the applicant was charged with the offence of affray pursuant to section 93C of the Crimes Act 1900. On 6 May 2015 he entered a plea of guilty before the Downing Centre Local Court, was convicted and, on 26 August 2015, sentenced to eighteen months imprisonment with a nine month non-parole period. The applicant appealed to the District Court against the severity of the sentence. On 26 November 2015 the District Court set aside the custodial sentence and ordered that the applicant enter into a bond for a period of twelve months pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 with no conviction being recorded. Disciplinary process 1. Detective Superintendent Kerrie Lewis is employed in the role of Commander, Investigations Unit, within the Professional Standards Command of the NSW Police Force. Between 7 December 2014 and 30 August 2015 Superintendent Lewis performed a number of periods of higher duties in the role of Director, Investigations and Field Services, Professional Standards Command at the rank of Detective Acting Chief Superintendent. It was in this role that Superintendent Lewis, as delegate of the Commissioner of Police, had primary responsibility for the disciplinary process involving the applicant which followed on from the incident of 6 December 2014. 2. On 13 March 2015 Superintendent Lewis signed a Show Cause Notice which invited the applicant to make submissions in relation to the allegations of misconduct against him. Those allegations were that the applicant had engaged in serious misconduct as follows: (1) Unlawfully assaulted Mr BARCROFT about 1.30am on 6 December 2014 in the company of others (2) Engaged in unlawful violence towards Mr BARCROFT in company of others about 1.30am on 6 December 2014, and such conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety (3) You witnessed Christos TERIZIS approach Mr BARCROFT from his blind side, and instead of warning Mr BARCROFT of his approach you watched as he struck the unsuspecting BARCROFT to the head causing him to fall unconscious to the roadway. Rather than attempting to assist Mr BARCROFT in any way, you walked away with TERIZIS and your other friends as Mr BARCROFT remained motionless on the roadway demonstrating complete disregard for his health and wellbeing, and (4) You attempted to influence Police not to take any action against you 1. The Show Cause Notice also stated that there appeared to be reasonable grounds upon which Superintendent Lewis could conclude that the applicant had contravened the NSW Police Force Code of Conduct and Ethics as follows: Point 1: You have not behaved honestly and in a way that upholds the values and the good reputation of the NSWPF whether on or off duty Point 4: You have not treated everyone with respect, courtesy and fairness Point 6: You have not complied with the law whether on or off duty Point 9: You made improper use of your position 1. In addition, the Show Cause Notice also asserted that the applicant's behaviour had gone against the following points of the NSW Police Force Statement of Values which provides: Each member of the NSW Police Force is to act in a manner which: (a) Places integrity above all (b) Upholds the rule of law (c) Preserves the rights and freedoms of individuals and (d) Seeks to improve the quality of life by community involvement in policing 1. The applicant responded to the Show Cause Notice on 20 May 2015. He claimed that, after he became aware that Christos Terizis had been hit in the face he "then looked up Bathurst Street and saw some commotion and went to see if everything was ok". In his oral evidence the applicant explained that it was Goulburn Street, not Bathurst Street, where the incident was occurring. 2. Rather than going to see if everything was "ok", in reality the applicant walked to where the attack on Mr Barcroft was occurring and actively participated in that bashing making it a three-on-one attack. 3. The applicant stated that he "grabbed Mr Barcroft and was asking him why he had hit my friend for no reason". The CCTV footage shows that this exchange occurred after the applicant had kneed Mr Barcroft and while the applicant was holding Mr Barcroft so that his head was down almost at knee level which allowed one of the applicant's friends to deliver a further blow to Mr Barcroft's head. 4. The applicant claimed that, with his knee, he "shoved him out of the way and told him to get out of here". This is plainly untrue. What the applicant actually did was walk deliberately up to where the two-on-one attack was occurring and move around behind the main aggressor, who was in the process of punching and kneeing Mr Barcroft to the head. The applicant then inserted himself between the main aggressor and Mr Barcroft and then laid into Mr Barcroft with considerable force with his knee, before holding Mr Barcroft with his head down near his knees making him vulnerable to further attack from the applicant's friend. 5. The applicant claimed that: "I am in no way a violent person and strongly believe that my actions were with the intention to stop the situation escalating". If that were true, the applicant could have acted to stop the attack by his two friends on Mr Barcroft and allowed him to leave the scene. Instead, he joined in the attack inflicting further considerable violence on the defenceless victim. The applicant accepted that his actions were "totally unacceptable" but described them as a reaction to his friend being struck initially, without provocation. He also mentioned that he had recently separated from his wife after 18 years and that it had been a mentally draining and depressing period which may have had an impact on his behaviour on this night. 6. The applicant's culpability in relation to this event was compounded when, after Mr Barcroft was felled by the coward punch from the fourth assailant, Christos Terizis, the applicant looked at the victim lying on his back unconscious on the roadway and then walked away with the others without attempting to render any assistance to the obviously stricken victim. The applicant expressed regret and remorse over this aspect of the incident, but claimed that he was shocked and stunned that the situation had escalated and that he just wanted to remove himself from the situation. He has since completed a two day first aid course which will improve his decision making and "ensure the safety of the public at all times". 7. The applicant denied that he tried to influence what the police were doing by claiming that he worked for the NSW Police Force. He claimed that he was merely stating where he worked which "is my duty to do so". 8. Whilst the applicant accepted "total responsibility" for his actions on the night in question and expressed remorse, in a remarkable piece of understatement the applicant stated that his "actions were unsatisfactory". The applicant relied upon his 23 odd years of service with the NSW Police Force as a mitigating factor. 9. By letter dated 28 May 2015 Superintendent Lewis advised the applicant that she had found all allegations of misconduct proven, and that she was considering imposing disciplinary action against him, with the most severe penalty she might conceivably impose being dismissal. 10. On 15 June 2015 Superintendent Lewis met with the applicant who made verbal submissions to her in relation to her determination that the misconduct was proven. 11. On 17 June 2015 the applicant's solicitor wrote to Superintendent Lewis reiterating the applicant's "remorse, contrition and aberration of otherwise impeccable judgement and character on this evening". The solicitor claimed that Superintendent Lewis had totally ignored "the fact that Mr Barcroft without provocation seriously attacked and occasioned bodily harm to Christos Terizis at a point earlier in time". The solicitor disputed that the applicant had been involved in a "callous and prolonged attack", claiming that his actions "although regretful, were limited to the lifting of his leg for a very short period of time and in a relatively inconsequential manner". It is unclear whether the author of this correspondence had viewed the CCTV footage prior to writing the letter, but the gross understatement of the applicant's involvement in the attack on Mr Barcroft can have done their client's cause no good at all. 12. On 10 August 2015 Superintendent Lewis wrote to the applicant and set out at length his responses to Show Cause Notice and her findings which were contained in the letter of 28 May 2015. Superintendent Lewis then set out her detailed factual findings which included the following: * The applicant saw George Terizis and Nick Pizanias assaulting Mr Barcroft a short distance away. * That assault commenced at precisely 1.34:31am and consisted of Mr Terizis and Mr Pizanias striking Mr Barcroft with closed fists to the head up to 17 times as the applicant approached. * It also consisted of one of those men striking Mr Barcroft with his knee six times to the head and upper body. * Apart from the first few blows to the head, Mr Barcroft sought to protect himself by hunching over and cowering against a window. He did not deliver any blows to any person throughout this incident. * By the time the applicant became involved in the affray at 1.34:58am Mr Barcroft had received no less than 24 heavy blows to the head and upper body. * Upon the applicant's arrival Mr Barcroft was still cowering and being struck when the applicant lifted his knee and drove it into the head/upper body of Mr Barcroft. * The applicant then took hold of Mr Barcroft's head and held it down. One of the other men then returned and struck him again. * When the applicant let him go, Mr Barcroft stood up, with his arms outstretched and began moving away from the applicant and his friends in a surrender fashion. * Whilst walking backwards Mr Barcroft was approached on his blind side by Christos Terizis. * The applicant saw Christos Terizis walking straight towards Mr Barcroft. * The applicant ought to have reasonably expected Christos Terizis to act violently towards Mr Barcroft in retaliation for the earlier assault upon him and accordingly, the applicant had an opportunity to warn him of the impending attack, yet the applicant chose not to do so. * Christos Terizis, upon reaching Mr Barcroft at precisely 1.35:35am, punched him heavily with a closed fist to the head which caused Mr Barcroft to fall backwards unconscious, striking his head heavily on the roadway. * Once on the roadway Mr Barcroft did not move and was clearly unconscious. The applicant stood by, looking at him for a few seconds as he lay prostrate on the roadway before walking away with the applicant's friends without rendering first aid or calling an ambulance. * When the applicant and his friends were detained and placed under arrest a short time later by police the applicant attempted to minimise his involvement in the incident by moving away from his friends. When asked if he was with them he said, "Uh, yeah". When told to join his friends sitting on the ground nearby, the applicant said to Acting Sergeant De Ceglie, "Please, I work for you guys, please". He later said to Leading Senior Constable Ramungkool, when informed that he was under arrest for assault, "Please don't charge me. I will lose my job... I work at the Police Headquarters... I am in the finance section". * Superintendent Lewis did not accept the applicant's explanation that he was not trying to influence police not to take action against him. * At no time did the applicant show genuine remorse or concern for the welfare of Mr Barcroft who was still lying on the roadway when the applicant was with police. 1. Having made those findings of fact, Superintendent Lewis found all four allegations of misconduct, as set out in the Show Cause Notice, proven. It followed that the applicant had also contravened the NSW Police Force's Code of Conduct and Ethics, Points 1, 4, 6 and 9 as well as its Statement of Values. 2. Superintendent Lewis accepted that the applicant is a man of good character and had not been involved in an incident like this before. She was aware that the applicant had been employed by the NSW Police Force for the best part of 23 years and had not been the subject of any prior disciplinary action. 3. However, Superintendent Lewis stated that the fact that the applicant, as a member of the NSW Police Force, the very agency responsible for enforcing the laws of this state, actively engaged in such a cowardly attack and did nothing to prevent it or end it, was very disappointing. She further stated that the applicant then walked away from Mr Barcroft, who was lying motionless on the roadway, clearly in need of medical attention, without checking on his wellbeing. This showed utter contempt for his fellow man and was reprehensible. For all the applicant knew at the time, Mr Barcroft may have been dead as a result of the heavy blow(s) to his head, or could have been run over by a passing motor vehicle. Yet the applicant turned his back and walked away. 4. The applicant was advised that Superintendent Lewis' decision was to terminate his employment after giving him an opportunity to resign and that, if he did not tender his resignation, she would take action to terminate his employment with his last day of service being 31 August 2015. However, following discussions between the applicant's Commander, Mr Hughes, and Acting Assistant Commissioner McKenna, it had been agreed that Superintendent Lewis would postpone making her final decision until 26 August 2015, the date the applicant was due to be sentenced in the Local Court. The applicant was advised that he was suspended from duty with pay. 5. On 26 August 2015 the applicant was sentenced to 18 months imprisonment with a nine month non-parole period. The applicant immediately lodged an appeal against the severity of the sentence. On the following day Superintendent Lewis wrote to the applicant and advised him that, for the reasons outlined in her letter of 10 August 2015, she found that the applicant's employment with the NSW Police Force was untenable. He was given the opportunity to resign by close of business on 2 September 2015. 6. Despite representations from the applicant's solicitors to defer any action in relation to the applicant's employment until after the appeal proceedings were finalised, and in light of the fact that the applicant did not avail himself of the opportunity of resigning, on 4 September 2015 the applicant's services were terminated. Case for the applicant 1. In an affidavit filed in these proceedings the applicant maintained that he saw blood on the lips of Christos Terizis when he was standing on the corner of George and Goulburn Streets and was told by him, "I was just punched for no reason!". The applicant proceeded around the corner into Goulburn Street and saw "some commotion" up ahead. 2. The applicant's evidence as to what then occurred was largely consistent with his response to the Show Cause Notice. He continued to downplay his part in the violence inflicted upon Mr Barcroft by the use of language such as: I then recall that I lifted my knee into Mr Barcroft's hip. Shortly after that I used my hands to hold Mr Barcroft away from me. I did not intend to cause Mr Barcroft any serious harm, but I did intend to make contact with him. 1. The applicant explained his failure to render assistance to Mr Barcroft after he had been felled by Christos Terizis by stating that he "froze on the inside... I was in shock... After the initial shock I became panicked. I could think of nothing more than wanting to remove myself from the situation. I began to walk away". 2. The applicant claimed that, after he had been detained by the police, he told Constable Darien Coburn that he worked for the NSW Police Force at the Financial Services Branch at Headquarters and said: "I'm gunna lose my job over this". That conversation is not recorded in Constable Coburn's contemporaneous notes in his police note book, nor in a written statement made by the constable on 21 February 2015. The applicant denied that he used the words attributed to him by Acting Sergeant Michael De Ceglie and Leading Senior Constable Pattanon Ramungkool as set out at paragraph 6 above. 3. Reliance was placed by the applicant on the length of his service with the NSW Police Force and on the "excellent relationship and trust with people from all levels of the organisation", which he had built. He also relied upon character evidence from a number of former work colleagues including his immediate supervisor, Manfred von Kowalski, General Manager, Management Accounting Corporate, and Ross Duncombe, General Manager, Management Accounting and Reporting. 4. Two of the applicant's character witnesses, Stuart Bartlett and Michael Enright, both worked with the applicant for varying periods of time and socialised with him away from the workplace. They both gave evidence as to his capacities at work and his general good character. They both held the view that the conduct which led to the applicant's dismissal was completely out of character. Whilst their affidavits were prepared prior to them viewing the CCTV footage of the incident, they both held to the views expressed in their affidavits after being shown that footage. 5. Patrick Abou-Rizk was another work colleague of the applicant who attested to his good character. Mr Abou-Rizk gave evidence that the applicant had told him about the applicant's involvement in the incident in terms to the effect that he "came in to move them (George Terizis and Nick Pizanias) away but also to move him (Mr Barcroft) away as well... to get him to move along basically". After seeing the CCTV footage of the incident Mr Abou-Rizk expressed the view that the applicant's involvement in it was not as bad or as serious as he had envisaged. Mr Abou-Rizk was shown the CCTV footage again when under cross-examination and, whilst he resiled to some extent from his earlier evidence, he maintained that what he saw on the CCTV footage was "on a par" with what the applicant had told him as to the applicant's involvement in the incident. 6. Mr Abou-Rizk's contribution to the proceedings serves as a warning to treat with caution the evidence of a well-meaning character witness when that evidence travels beyond the personal attributes of the applicant and strays into an assessment of the factual circumstances which led to the applicant's dismissal. 7. Mr von Kowalski gave evidence as to the applicant's conduct and character. He had not read the amended facts as presented to the Local Court but had discussed the incident with the applicant. Mr von Kowalski expressed the view that the incident was not in character with the behaviour he had observed of the applicant. In his discussions with the applicant, Mr von Kowalski had formed the view that the applicant's involvement in the incident had been minimal. He understood that the applicant had pushed the other party or used his knees. 8. Mr Duncombe had also formed the view, from discussions with the applicant, that he had been out drinking, that a man had hit the applicant's friend and that the applicant had "pushed or kneed the guy away". After viewing the CCTV footage, Mr Duncombe accepted that what he saw was "slightly different to the way it was explained". 9. The reluctance of the applicant's character witnesses to accept that the applicant's involvement in the incident constituted a cowardly attack on a defenceless individual who, at that time, was being attacked by two of the applicant's friends, followed by the reprehensible act of walking away from the victim who was lying unconscious on the roadway, also serves as a warning against placing too much weight on the evidence of these loyal friends and colleagues of the applicant. Approach contended for by the applicant 1. Counsel for the applicant submitted that the correct approach in this matter is for the Commission to first consider the seriousness of the conduct of the applicant (including factors of aggravation and mitigation) before moving to considerations of fairness, reasonableness and harshness. By this means the Commission is able to assess whether the dismissal was disproportionate (Commissioner of Police v Lawrance [2011] 208 IR 139 at [83] and [89]). 2. I agree with this approach. 3. Counsel also submitted that the Commission is to undertake a fresh and independent review of the decision based on the evidence before the decision maker as well as any new evidence (Hosemans v Commissioner of Police (No 2) [2005] 138 IR 159 at [134]). Although Hosemans was an appeal from a decision made at first instance in proceedings under section 181E of the Police Act, I accept that the approach there adopted by the Full Bench has application to proceedings such as these, brought under Part 6 of Chapter 2 of the Industrial Relations Act. 4. The applicant claims that the removal was harsh given the nature of the conduct involved, a process that involves mixed questions of fact and law (Burge v NSW BHP Steel Pty Limited [2001] 105 IR 325 at [4]). I agree that the question as to whether the dismissal of the applicant was harsh, unreasonable or unjust involves mixed issues of fact and law but, for reasons which are set out later in this decision, I disagree that the dismissal was harsh. 5. Further, the applicant also claims the removal was harsh, unreasonable and unjust because of the way the employer exercised the right to dismiss without waiting for the appeal process to conclude in circumstances where such a concession had been made previously. Again, for reasons which are set out later in this decision, I disagree. 6. The applicant seeks to draw support from the outcome in cases said to involve "similar circumstances" as those involved in the present application, such as Evans v Commissioner of Police ([2005] NSWIRComm 404; said to have been affirmed in Commissioner of Police v Evans [2006] NSWIRComm 170). 7. In Evans Boland J, after reviewing a number of cases involving the removal of sworn police officers for committing assault, stated as follows: 31 Whilst all of these cases involved assault by police officers and reflect the Commission's strong disapproval of such conduct by members of the Police, they also demonstrate that each case must be considered on its own facts because although assault might provide prima facie grounds for removal, circumstances may exist that make removal harsh and that either reinstatement should be ordered or some other remedy applied. 1. The particular facts of that case which led his Honour to conclude, "not without some reservation", that the removal of Mr Evans was harsh in its consequences for his personal and economic situation included the following: 1. The victim of the assault by Mr Evans, Kevin Gleeson, had provoked that assault by kicking Mr Evans in the back in a manner which was described in the Local Court by Magistrate Syme as follows: I have already noted that the degree of provocation proffered by the victim on this occasion was quite substantial. I noted that the degree of force that the victim appeared to use on the defendant was indeed quite substantial. (at [13]) 1. Whilst Boland J was unimpressed by the submission that Mr Evans' state of drunkenness was a mitigating factor (at [24]), his Honour did note that Mr Evans was seeking counselling about what was described as binge drinking and that he considered that he had it under control (at [42]). 2. The significant personal and economic dislocation caused to Mr Evans, his wife and young family by his removal from the Police Force (at [43], [50]). 3. Mr Evans' good character (at [44], [50]). 4. Mr Evans was extremely remorseful about his conduct (at [50]). 1. On appeal the Full Bench (Walton A/P, Schmidt J and Staff J), by majority (Schmidt J dissenting), refused leave to appeal. Acting President Walton J stated as follows: 6 The decision at first instance represents an orthodox application of these well­settled principles and discloses no error. Boland J took the public interest into account in several guises: first, the public interest in the integrity of the Police Service (at [49]); and secondly, the public interest in maintaining the employment of a highly trained officer who has the strong support of colleagues and his Local Area Commander and remains capable of providing valuable service to the Police (at [52]). His Honour then considered whether the removal was harsh, unreasonable or unjust, taking into account all relevant factors and striking what he considered to be an appropriate balance between the competing interests embodied in s 181F(3). 7 Nor do I agree with the appellant's submissions that Boland J failed to apply the tripartite test correctly by focussing too much on the adverse personal circumstances befalling the respondent as a result of his removal. Boland J summarised the respondent's submissions in support of the contention that his removal was too severe at [39]. If his Honour had relied solely upon the last two points (the fact that Mr Evans is married with two young children and the impact of removal on his economic and personal situation), the appellant's submissions would have some purchase. But this is not the case. In assessing whether the removal was harsh, Boland J correctly considered the proportionality of the penalty to the misconduct. His Honour's finding that the misconduct was aberrant (at [44] and [51]) and his Honour's opinion that it would never be repeated (at [51]), were fundamental to this assessment. Furthermore, his Honour took into account in mitigation the fact that Mr Evans was provoked (at [40]); the fact that his early plea of guilty in the Local Court demonstrated remorse and a degree of acceptance of responsibility (at [41]); the fact that the misconduct was due to excessive consumption of alcohol (at [42]); the fact that Mr Evans had consulted a drug and alcohol counsellor and had been provided with a strategy to avoid binge drinking (at [42] at [50]); and Mr Evans's good character, professional and character support references and distinguished career in the service of the NSW Police (at [44], [45] and [50]). 8 In the absence of any demonstrable error of law or principle, notwithstanding that this was a finely-balanced decision reached by Boland J with some reservation, and notwithstanding that other members of the Commission may have come to a different decision, I do not consider that this is an appropriate case to grant leave to appeal. 1. In fact, Schmidt J did come to a different decision. Her Honour would have granted leave to appeal, upheld the appeal and quashed the orders of Boland J reinstating Mr Evans. 2. It is apparent that, in the case of Evans, Boland J and the majority on appeal, placed considerable weight on the fact that Mr Evans had been subjected to significant provocation in the form of a forceful kick to his back by the other party involved in the incident. 3. This fact alone stands that case apart from the present matter. 4. Another case relied upon by the applicant is Commissioner of Police v Dobbie ([2006] NSWIRComm 285; 157 IR 44). That case was an appeal from a decision of Marks J in which his Honour had determined that the removal of a police officer, following his conviction for driving with a high range PCA, having been convicted of a mid-range PCA four years earlier, was harsh (Dobbie v New South Wales Police [2006] NSWIRComm 12). The decision of Marks J to reinstate the applicant in that matter turned entirely upon an undertaking, which was proffered by the applicant during the proceedings, to refrain from drinking alcohol whilst he remained a member of the police force. 5. On appeal, the Full Bench (Wright P, Walton V-P and Boland J) held that the finding of Marks J as to harshness, and the exercise of his Honour's discretion to reinstate the applicant, subject to conditions, disclosed no appealable error. Their Honours stated: 68 Whilst an appellate court or tribunal is duty bound to reverse conclusions based on a trial judge's views of fact when those views of fact are plainly wrong, an appellate court or tribunal is equally duty bound not to reverse such decisions of a trial judge merely because the appellate court or tribunal itself takes a view different from that of the trial judge of the findings that should have been made: Abboud v The State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32 at 43 per Wright J, President and Walton J Vice President; Martin v Byrnes [1999] NSWCA 144. 69 Given that his Honour had regard to all of the matters that he was required to under s 181F(1)(3), that he did not mistake the facts and that his conclusions based on the facts were reasonably open on the evidence, we are unable to see how his Honour erred in the exercise of his discretion and thus how this Full Bench may intervene to review his Honour's decision on appeal. 1. Given the vastly different factual circumstances between those which were before the Commission in Dobbie and the facts of the matter now before the Commission, the decisions in that case, both at first instance and on appeal, provide little assistance to the Commission in the present matter. 2. The applicant also relies upon the decision of the Full Bench (Boland P, Walton V-P and Staff J) in Flanagan v Commissioner of Police ([2010] NSWIRComm 7). This was an appeal from a decision of Kavanagh J in which her Honour dismissed Mr Flanagan's application under section 181E of the Police Act (Flanagan v Commissioner of Police [2009] NSWIRComm 106). Mr Flanagan had been removed from the police force on two grounds, the first of which was that he had assaulted one Martin Amatto. 3. The Full Bench found that Kavanagh J had committed appealable error in failing to find that Mr Flanagan had been provoked by Mr Amatto. The Full Bench stated as follows: 43 With respect, we agree entirely with the approach taken by Judge Hughes in the District Court. It was on the spur of the moment that Mr Flanagan decided to bump Mr Amatto in the hallway and that decision was no doubt affected by alcohol; there was no premeditation. Nevertheless, it was an exercise of very poor judgment on Mr Flanagan's part, who was an experienced police officer. He should have realised that it would, in all likelihood, lead to a physical confrontation that should have been avoided. 44 However, what should not be lost sight of is that, shortly beforehand, Mr Flanagan was abused and threatened by a well known local criminal in circumstances where he was off duty and affected by alcohol and where the threats had induced a feeling of fear and anger. Mr Amatto's threats clearly amounted to provocation (even though, interestingly, Mr Amatto was not charged with assault). As her Honour did not weigh this as an important factor in the balance, there occurred an error requiring appellate intervention. And later: 88 On 15 April 2006 Mr Flanagan was off duty and having visited Wellington for personal reasons, accompanied Ms Humphries and her father to the Wellington Hotel. Mr Flanagan had once been stationed at Wellington. At the Hotel, Mr Flanagan was abused and threatened by Mr Amatto, a well known local criminal with convictions for a variety of offences including assault, carrying a cutting weapon upon apprehension, assault police, assault occasion actual bodily harm, assault person with intent to resist/prevent apprehension, custody of an offensive implement in a public place, and resisting officer in execution of duty. Mr Flanagan was fearful of the threats and angry. 89 Notwithstanding there was a finding by Kavanagh J that Mr Flanagan became fearful following the heated exchange in the poker machine room, her Honour considered that Mr Flanagan had not been provoked. The basis upon which her Honour arrived at this conclusion is not entirely clear. We fail to see how the words of Mr Amatto could instil fear, but not be regarded as provocative to an off duty officer whose judgment was affected by alcohol. 90 We do not consider there is any doubt that Mr Flanagan bumped Mr Amatto in the hallway as a consequence of being provoked in the poker machine room. The provocation does not excuse Mr Flanagan's conduct, as we earlier indicated, but it is a significant factor that should have been taken into account in mitigating the seriousness of what occurred. In that respect, Mr Flanagan's conduct in bumping Mr Amatto was neither calculated nor premeditated. 91 In considering, on the other hand, the public interest and the fact the Commissioner made an order under s 1810(1) of the Act, it may readily be accepted that there is no public interest in retaining officers in the Police Force who have committed assault and, when all the circumstances are considered, what was found to have occurred was indefensible, a gross act of wrongdoing or without significant mitigating factors. But the very reason the Commission is required under s 181F(3) of the Act to have regard to both the applicant's interest and the public interest is so that it may, in a judicial sense, weigh the respective interests in the balance, consider all the circumstances, and decide whether the removal of the police officer was harsh, unreasonable or unjust. 1. Again, the element of provocation sets Flanagan apart from the present matter. 2. I do not accept that the sight of blood on the lips of Christos Terizis, and being told by him that he had been punched for no reason, constitutes provocation of the applicant by Mr Barcroft such as to amount to a mitigating factor in relation to the attack on him by the applicant. 3. In the present matter, the attack by the applicant on Mr Barcroft was, to adopt the language of the Full Bench in Flanagan, "indefensible, a gross act of wrongdoing (and) without significant mitigating factors". 4. The applicant also calls in aid of his case the decision in Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling ([2012] NSWIRComm 118). I repeat what I had to say about that matter in my decision in Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services ([2016] NSWIRComm 1011): 46. Counsel for the applicant sought to call in aid of the applicant's case the approach adopted by the Commission in Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling ([2012] NSWIRComm 118 (31 October 2012)). In that matter the dismissed employee, Mr Silling, a Correctional Officer, had, over a period of 13 years, been charged with, and pleaded guilty to, three counts of common assault, two on his wife and one on his 24 year old daughter. Common assault under section 61 of the Crimes Act is an assault not occasioning actual bodily harm. A conviction renders the offender liable to imprisonment for two years. 47. At first instance Bishop C found the dismissal to have been unfair and ordered the reinstatement of Silling (Silling v Corrective Services NSW [2011] NSWIRComm 1056 (16 December 2011)). In her decision Bishop C was focussed on the need for there to be a connection between the applicant's off-duty conduct and his employment (at [155], [174]). There can be no doubt that the existence or otherwise of such a connection may have relevance in cases of less serious criminal conduct. In cases involving the commission of very serious crimes, such as the present matter, the search for such a connection can become a distraction when the overriding consideration should be an objective assessment of the inherent seriousness of the criminal conduct itself. 48. After citing a passage from Farquharson (at [20]-[22]), which included the passage from Rose cited at paragraph 28 above, Bishop C stated: [158] I do not consider that by his three acts of domestic violence, reprehensible as they might be, he had any intention to, nor did he, repudiate or reject his contract of employment with CSNSW. Although this statement is consistent with the reasoning of Ross VP in Rose, by putting the proposition in this way, the Commissioner was, with respect to her, addressing the wrong question in the context of public sector employment. 49. On appeal the Full Bench (Haylen J, Backman J and Stanton C) held that the findings of Bishop C that the termination of Silling was harsh, unjust and unreasonable, and the Commissioner's decision to re-instate, were reasonably open to her and that, having regard to the substance of the Commissioner's decision, no error had been demonstrated that warranted the granting of leave to appeal (per Haylen J at [3]). 50. In her reasons for decision, Backman J stated (at [45]): The issue as to whether there was a connection between Mr Silling's out-of­hours conduct (the convictions) and his dismissal was relevant to Commissioner Bishop's consideration as a factor she was required to take into account. (emphasis added) Nowhere does her Honour state that the presence or absence of such a connection is the decisive factor in determining whether a particular dismissal is unfair. 51. The Full Bench did not comment on that passage of the Commissioner's decision cited at paragraph 48 above. 52. There are a number of significant factors in Silling which stand it apart from the facts of the present case. They include the following: (a) In 1998 Silling pleaded guilty to a charge of common assault under section 61 of the Crimes Act following a domestic dispute with his wife. The offence was found proven and he was released upon entering into a recognisance under section 556A of the Crimes Act subject to conditions, one of which was to attend for counselling as directed or agreed. His employment was not terminated but he was issued with a letter of warning. (b) In 2008 Silling assaulted his 24 year old daughter during an argument. Again he pleaded guilty to a charge of common assault, the offence was found proven and he was placed on a recognisance under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. No further conditions were imposed and no internal disciplinary action was taken "due to an administrative oversight". This, coupled with the previous letter of warning, made it difficult for the employer to subsequently argue that the commission of the offence of common assault compromised Silling's capacity to perform the role of a Correctional Officer. (c) In 2011 Silling again assaulted his wife during an argument. He pleaded guilty to a charge of common assault, was convicted and placed on a recognisance order under section 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for nine months subject to conditions. (d) None of the offences committed by Silling led to the imposition of a term of imprisonment, suspended or otherwise. (e) Bishop C accepted that Silling "took immediate and prompt action to report the incidents himself, cooperated in police interviews, made admissions and subsequently pleaded guilty to the very serious offences he had committed... He also promptly reported each incident to his Managers at Goulburn Correctional Complex and provided detail about his court appearances and resulting convictions" (at [130]). (f) The victim of two of Silling's offences, his wife, gave evidence in support of him before Bishop C. 1. In my opinion, the decisions in Silling, both at first instance and on appeal, provide very little guidance in a case such as the present where the criminal conduct which led to the dismissal was not in the nature of a common assault perpetrated on a forgiving spouse, but involved an unprovoked attack upon a defenceless person who was, at the time, being attacked by two of the applicant's friends. Silling is very much confined to its own particular facts and does not support a finding, in the present matter, that the dismissal of the applicant was harsh, unreasonable or unjust. 2. For similar reasons, the decision of Ross VP in Rose v Telstra Corporation Limited (Print Q9292, 4 December 1998) is also unhelpful in the determination of the appropriate outcome in the present matter. 3. The seriousness or gravity of the misconduct committed by the applicant in the present matter is so significantly greater than the seriousness of the acts of misconduct committed by the applicants in the cases relied upon in support of the present applicant, such as to render those cases clearly distinguishable from the matter now before the Commission and of little assistance in the determination of the present application. 4. Further, none of the cases relied upon by the applicant have, as a factual element in them, anything approaching the seriousness of the conduct of the applicant in walking away from an unconscious victim lying on the roadway. That fact alone stands this case apart from any of the cases relied upon by the applicant. Case for the respondent 1. Superintendent Lewis gave the following evidence: The New South Wales Police Force is responsible for upholding the law. Mr Klazidis' actions were contrary to the law and in contravention of the New South Wales Police Force Code of Conduct and Ethics. The New South Wales Police Force does not tolerate employees engaging in violent behaviour, whether on or off duty. Mr Klazidis' behaviour fell well short of the standards of conduct expected of all New South Wales Police Force employees. Not only did Mr Klazidis engage in violent behaviour, he failed to render assistance to a member of the public who was clearly injured and laying unconscious on the roadway. The actions of Mr Klazidis had the real potential to bring the reputation of the New South Police Force in disrepute, particularly in the current climate relating to 'one punch' laws. Mr Klazidis and the New South Wales Police Force are very fortunate this matter did not gain media attention. 1. Superintendent Lewis held the view that reinstatement of the applicant was untenable given that his actions were contrary to the law and to the Code of Conduct and Ethics. 2. The views of Superintendent Lewis on these matters, as the delegate of the Commissioner of Police, command considerable weight. 3. Detective Chief Superintendent Greg Rolph is the Director, Investigation and Field Services within the Professional Standards Command. He gave the following evidence: I have observed the CCTV footage of Mr Klazidis' offence, which I understand was tendered in the criminal proceedings. That footage shows Mr Klazidis engaging in violent behaviour, which is completely unacceptable to the NSW Police. More importantly, it shows Mr Klazidis leaving a man lying unconscious on the road way. I considered such behaviour to be at the higher end of the spectrum of misconduct. It fall well below both the Commissioner's and community expectations of officers, both sworn and unsworn employed by the NSW Police Force. I consider that the reinstatement of Mr Klazidis is untenable as the conduct and behaviour of Mr Klazidis is grave and is not consistent with the NSW Police Force Code of Conduct or Ethics. Given the extensive training given to Mr Klazidis about the Code of Conduct and his serious lapse in judgment in relation to the incident, I do not have confidence that Mr Klazidis will not make the same mistake in the future. I am also concerned that if other members of the NSW Police Force engage in similar misconduct, Mr Klazidis's case will be used as a precedent. As the body responsible for upholding the criminal law and protecting public safety, and especially in light of heightened public concerns about violent drunken behaviour, the NSW Police Force must be seen not to tolerate such conduct by its employees. 1. As with Superintendent Lewis, the views of Chief Superintendent Rolph must also be accorded significant weight. Findings as to serious misconduct Allegations (1) and (2) 1. The specific allegations of serious misconduct against the applicant are set out at paragraph 9 above. Allegations (1) and (2) both relate to the applicant's physical attack on Mr Barcroft and I will treat them as the one and same allegation. 2. I reject the various descriptions of the physical contact between the applicant and Mr Barcroft which were expressed in the following ways: * As George TERIZIS let go of the victim, Chris KLAZIDIS is seen to lift his knee, connecting with the victim's body – Agreed Facts tendered to the Downing Centre Local Court prior to sentencing. * Then with my knee I shoved him out of the way and told him to get out of here – applicant's letter to Superintendent Lewis dated 20 May 2015. * The actions of Mr Klazidis although regretful, were limited to the lifting of his leg for a very short period of time and in a relatively inconsequential manner – letter from Voros Lawyers to Superintendent Lewis dated 17 June 2015. * I then recall that I lifted my knee into Mr Bancroft's hip. Shortly after that I used my hands to hold Mr Bancroft away from me – applicant's affidavit of 8 March 2016, paragraph 28. 1. What the applicant did, in fact, do to Mr Barcroft, as is graphically shown on the CCTV footage, is more accurately described in the initial police Fact Sheet in the following terms: * As George TERIZIS let go of the victim, Chris KLAZIDIS approach the victim and strikes in the direction of the victim body once with his left knee causing the glass panel behind the victim to shake. * PIZANIAS and George TERIZIS walk away from the victim, while, KLAZIDIS stays with the victim and places his left hand on the victim's head forcing it down. PIZANIAS returns to the victim and spat towards the victim's direction. 1. In her letter to the applicant dated 10 August 2016, Superintendent Lewis described the interaction in these terms: * Upon your arrival Mr Barcroft was still cowering and being struck when you lifted your knee and drove it into the head/upper body of Mr Barcroft. * You then took hold of Mr Barcroft's head and held it down. One of the other two men returned and struck him again. 1. Superintendent Lewis' description of the event accords far more closely with what is clearly shown on the CCTV footage than do the various attempts by the applicant, in these proceedings and elsewhere, to downplay the gravity of his conduct. 2. Superintendent Lewis expressed her disappointment that the applicant had "actively engaged in such a cowardly attack and did nothing to prevent it or end it". This description of the applicant's involvement is accurate and fair. I concur fully with it. 3. I find that the combined allegation, comprising allegations (1) and (2), to be proven and to constitute serious misconduct on the part of the applicant. 4. I find that there are no mitigating factors which would reduce the level of culpability of the applicant in relation to this incident. In particular, I reject the proposition that the earlier alleged assault by Mr Barcroft on Christos Terizis constituted provocation of the applicant by Mr Barcroft. I also reject the proposition that the applicant either intended to, or attempted to, "shove" Mr Barcroft out of the way. The CCTV footage of the incident tells a completely different story. Allegation (3) 1. Allegation (3) has two elements to it. The first is that the applicant did not warn Mr Barcroft of the impending coward punch from Christos Terizis which was about to knock Mr Barcroft unconscious. The second element is that, rather than attempting to assist Mr Barcroft, the applicant walked away with his friends as Mr Barcroft remained motionless on the roadway, demonstrating complete disregard for his health and wellbeing. 2. I do not find the first of these two elements proven. The applicant has consistently maintained that there was no way that he had any assumption that Christos Terizis was going to throw a coward punch at Mr Barcroft's head. I have examined the CCTV footage many times and, from what I have observed, I am not comfortably satisfied that: 1. the applicant could have anticipated that Christos Terizis would act in the extreme manner towards Ms Barcroft in which he did by throwing a coward punch to Mr Barcroft's head, and 2. the applicant had any real opportunity to warn Mr Barcroft of what was about to happen to him. 1. The second element of allegation (3) is admitted by the applicant. He has expressed regret and remorse over his actions but claims that he froze on the inside, that he was shocked and stunned that the situation had escalated and that he just wanted to remove himself from the situation. That may well be so, but that emotional response in no way excuses the applicant for leaving the stricken victim for dead on the roadway. Nor does the applicant's emotional response lessen his culpability in relation to this aspect of the incident. 2. Superintendent Lewis described this aspect of the applicant's conduct as showing "utter contempt for your fellow man and... reprehensible". I agree entirely with this description. I find that there are no mitigating circumstances which would reduce the level of the applicant's culpability with respect to this element of allegation (3). Allegation (4) 1. It was further alleged that the applicant attempted to influence the police not to take any action against him. This allegation is based on the statements attributed to the applicant by Acting Sergeant Michael De Ceglie and Leading Senior Constable Pattanon Ramungkool recorded at paragraph 6 above. The applicant denies making these statements. Neither officer was called to give evidence before the Commission so their statements remained untested. 2. The applicant admits that he told Constable Coburn where he worked, although Constable Coburn has not recorded this in his police note book nor in his written statement of 21 February 2015. 3. It may well be that the other officers overheard this conversation, or had it relayed to them, and interpreted it as the applicant attempting to use his position to influence them to not take action against him. This is pure speculation which can't be tested because the officers were not called to give evidence before the Commission. 4. I am not comfortably satisfied that allegation (4) has been made out on the evidence before me. Unreasonable or unjust 1. I regard those proven aspects of the applicant's misconduct as extremely serious. I completely reject the submission put on behalf of the applicant that "the actual impugned conduct, when assessed in light of its seriousness, was at the low end of the scale". 2. Chief Superintendent Rolph considered the applicant's conduct to be "at the higher end of the spectrum of misconduct". I agree. 3. It was submitted on behalf of the applicant that his conduct did not evidence an intention to repudiate his contract (Rose v Telstra Corporation Ltd – unreported, Print Q9292, Dec 1444/98, 4 December 1998). In the context of public service employment such as the applicant's employment, common law notions, such as repudiation of the employment contract, are not particularly relevant (Corrective Services NSW v Danwer [2013] NSWIRComm 61 at [27]-[32]). 4. It was further submitted that the applicant's conduct was not in any way connected to his working life as a non-public facing financial analyst. For the reasons I expressed in Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services ([2016] NSWIRComm 1011 at [28]-[72]), I do not accept that, in cases of extremely serious out-of-hours misconduct such as the present case, it is necessary to establish such a connection between the misconduct and the employment in order to justify a dismissal. 5. In any event, in the present case the applicant was bound to observe the obligations imposed upon him by the NSW Police Force Code of Conduct and Ethics and in particular the following: Point 1: Behave honestly and in a way that upholds the values and the good reputation of the NSW Police Force whether on or off duty Point 4: Treat everyone with respect, courtesy and fairness Point 6: Comply with the law whether on or off duty His out-of-hours misconduct breached these obligations. 1. It was put on behalf of the applicant that his dismissal was unfair because the employer exercised its right to dismiss him without waiting for the outcome of the applicant's severity appeal to the District Court. Superintendent Lewis made it clear in her evidence that her determination that the applicant should be dismissed was not dependent on the outcome of the criminal proceedings against him. Her determination was based upon her assessment of the gravity of the applicant's misconduct, taking into account the mitigating factors put forward by him. I agree with this approach. The outcome of the applicant's appeal to the District Court would not have altered the determination made by Superintendent Lewis to dismiss the applicant, nor does it unduly impact upon my assessment of the fairness or unfairness of that determination. 2. The applicant is guilty of the misconduct with which he has been charged. He is guilty of the criminal offence of affray which carries a penalty of ten years imprisonment. He is guilty of walking away from a stricken victim lying unconscious on the roadway. I do not find the termination of his employment for this misconduct to be unjust. 3. The evidence against the applicant is compelling. The CCTV footage of the incident provides a damning indictment of him. I do not find the termination of his employment to be unreasonable. Harshness 1. There remains the issue as to whether or not the dismissal of the applicant was, nevertheless, harsh taking into account any mitigating factors. To put the question another way, was the dismissal disproportionate to the gravity of the misconduct? In this consideration I am guided by the following passages of the Full Bench decision (Walton VP, Haylen J and Bishop C) in Department of Health v Perihan Kaplan ([2010] NSWIRComm 65): [26] One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. [27] The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. [28] This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne''), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. [29] We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 1. I have already found that the misconduct committed by the applicant in this case was extremely serious. The factors which were put forward by the applicant in support of a finding that his dismissal was harsh included: 1. the applicant's 23 years of service; 2. the applicant's unblemished disciplinary and service record; 3. the applicant's sentence being "no conviction recorded"; 4. the applicant's honesty, integrity and work ethic; 5. the applicant's value as an employee; 6. the applicant's non-public facing role; 7. the fact that the incident did not gain media attention (as was purportedly a concern); 8. the applicant's remorse and good character; 9. the unprompted steps to learn first aid so as to be in a position to assist in any further situation; 10. the unlikelihood of re-offending given the applicant's long and non-violent history; 11. the impact on the applicant's family and finances; 12. the applicant's desire to return "home" to his colleagues in the tragic circumstances of the slaying of Mr Cheng; 13. the fact the incident was "one mistake" which occurred while not at work; 14. the overall minimal involvement of the applicant in the incident; 15. the applicant's plea of guilty on the first occasion; 16. the applicant's significant support from work colleagues and supervisors; 17. the applicant's honest and forthcoming evidence before the Commission which included appropriate concessions against interest. 1. I readily accept that the applicant's record of service, his past good character, his value as an employee and his remorse must be weighed in his favour in considering the question of harshness of the dismissal. 2. I also accept that it is unlikely that the applicant would re-offend in a similar way, given his long and non-violent history. 3. I do not attach significant weight to his early plea of guilty and the "no conviction recorded" aspect of the penalty imposed upon him. Those matters may be of significance in a consideration of the criminality of his actions but do not bear greatly on my assessment of the seriousness of his misconduct. In this regard, I note that one of the most serious aspects of the applicant's misconduct, namely, failing to render assistance to Mr Barcroft and walking away, leaving him unconscious on the roadway, did not excite any criminal law response. Criminality is not determinative of the gravity of misconduct justifying dismissal. 4. With respect to the applicant's "non-public facing role" and the fact that the incident was "one mistake" which occurred not at work and did not gain media attention, I would regard as factors having greater mitigating impact in cases of less serious misconduct. Such factors have less mitigating impact in cases, such as the present, which involve very serious misconduct. 5. Whilst the applicant's efforts to obtain a first aid qualification are to be commended, I do not regard this matter as being particularly relevant to a consideration of mitigation of harshness. A first aid qualification is not necessary in order to assess if someone is alive or dead or to call an ambulance. 6. The applicant's desire to return "home" to his colleagues, and their significant support of him, is understandable and weighs in favour of a finding of harshness, as does the impact of his dismissal on his family and finances. 7. However, of the various matters listed at paragraph 96 above, some weigh against a finding of harshness. Specifically, it is asserted that "the overall minimal involvement of the applicant in the incident" should weigh in his favour. I reject the proposition that the applicant's involvement was minimal. He may not have inflicted as many punches and knees on the victim as did George Terizis or Nick Pizanias. His contact with the victim may not have been as damaging as the coward punch thrown by Christos Terizis. Nevertheless, the assertion as to his "overall minimal involvement" in the incident ignores the reality of what he actually did, which is graphically demonstrated in the CCTV footage and described at paragraphs 4=5, 12-17 and 23 above. 8. Further, I do not attach significant weight to the assertion concerning "the applicant's honest and forthcoming evidence before the Commission which include appropriate concessions against interest". 9. Throughout the disciplinary process, the applicant maintained the fiction that he had tried to "shove" Mr Barcroft out of the way. He clearly did no such thing. He kneed Mr Barcroft to the upper body or head with considerable force. 10. Under cross-examination the applicant claimed that he didn't know that kneeing Mr Barcroft was a crime. He refused to accept that what he did was cowardly and disgraceful. 11. At no point has the applicant acknowledged the seriousness of the unprovoked attack which he inflicted upon Mr Barcroft in circumstances where he was already being savagely attacked by two of the applicant's friends. 12. Having weighed the seriousness of the applicant's misconduct, which I find to be extreme, against all of the mitigating factors put forward on his behalf, I find that his dismissal was not harsh. Conclusion 1. The applicant's inability, or refusal, to acknowledge the seriousness of his actions and those of his three friends throughout this incident speaks volumes as to his lack of insight into his own conduct. The delegate of the Commissioner of Police, Superintendent Lewis, has determined that the NSW Police Force has no place for the applicant as a member of its workforce. I fully concur with this determination. 2. The application before the Commission for relief in relation to unfair dismissal is dismissed. 3. I so order. ********** Amendments 22 April 2016 - Paragraph 96 - Typographical error 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. Decision last updated: 22 April 2016