Torres v Commissioner of Police [2017] NSWIRComm 1001

Industrial Relations Commission New South Wales Medium Neutral Citation: Torres v Commissioner of Police [2017] NSWIRComm 1001 Hearing dates: 17, 18 & 19 August, 24, 25 & 26 October,28 November 2016 Date of orders: 20 January 2017 Decision date: 20 January 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application by George Torres is dismissed Catchwords: UNFAIR DISMISSAL – Senior Special Constable – complaints of sexual harassment and bullying – part of workplace culture – long and distinguished service – internal investigation – disciplinary process – talking about sexual acts – inappropriate and offensive comments in the presence of junior staff – proven misconduct extremely serious – mitigating factors – dismissal not harsh unreasonable or unjust – application dismissed Legislation Cited: Industrial Relations Act 1996 Evidence Act 1995 Cases Cited: Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Loty and Holloway v Australian Workers Union (1971 AR 95 at 99) Category: Principal judgment Parties: George Torres (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Ms N Sharp (Respondent)

Solicitors: Ms S Emery, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Henry Davis York Lawyers (Respondent) File Number(s): 2016/00024823

DECISION 1. Before the Commission is an Application for Relief in relation to Unfair Dismissal brought pursuant to the provisions of Chapter 2, Part 6 of the Industrial Relations Act 1996 (the Act). The applicant is George Torres, formerly employed as a Senior Special Constable by the respondent, the Commissioner of Police, in the Security Management Unit which provides security to a number of government facilities such as Parliament House. 2. The applicant was dismissed from his employment with effect from 4 January 2016. The basis of the applicant's dismissal was a finding by the respondent that four allegations of misconduct by the applicant were sustained. Those allegations, as ultimately formulated, were as follows: 1. Between September 2014 and February 2015, Mr Torres sexually harassed PSC Laura Hutchinson (aged 24), PSC Jesse Lane (aged 22), PSC Cody Baxter (aged 21), PSC Jade Davies (aged 25) and PSC Danielle Cooper (aged 46) in breach of the NSWPF Harassment, Discrimination and Bullying Policy and Guidelines; 2. Sometime after calling PSC Hutchinson on November 2014 and saying "Hey Laura, do you want to suck my cock", Mr Torres rang her on her day off to intimidate her into not making a complaint about the comment and by his conduct PSC Hutchinson felt intimated; 3. Over the course of the weekend of 7th and 8th of February 2015 Mr Torres attempted to contact PSC Hutchinson by telephone on several occasions in an effort to persuade her not to complain about his behaviour. Such behaviour may be viewed as harassment and bullying; and 4. Between September 2014 and 28 January 2015, Mr Torres behaved unprofessionally on several occasions in front of his colleagues, making inappropriate and offensive comments, such as "have you ever done anal sex" and "suck my dick" whilst in the workplace. Such behaviour may be viewed as harassment and bullying. 1. In his unfair dismissal application to this Commission, the applicant denied many of the allegations but it was acknowledged "that at times he has made inappropriate jokes in the workplace and sincerely apologises to those he has offended. The Applicant however notes that this is part of the culture within his workplace and has been for many years, and he has never been reprimanded in relation to such behaviour". 2. In the proceedings before the Commission, the allegation of sexual harassment by the applicant against Probationary Special Constable Jesse Lane was not pressed on the basis that Jesse Lane is, in fact, a male officer.