Lees v Commissioner of Police [2019] NSWIRComm 1045

Industrial Relations Commission New South Wales Medium Neutral Citation: Lees v Commissioner of Police [2019] NSWIRComm 1045 Hearing dates: 10 May 2018 Date of orders: 12 July 2019 Decision date: 12 July 2019 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner P Kite SC Decision: Application Dismissed Catchwords: POLICE – removal of officer – unreasonable or harsh – dishonesty – lack of candour – misuse of position – misuse of resources – neglect of duty - conflict of interest – officer placing personal interests before interests of the police force Legislation Cited: Police Act 1990 Police Regulation 2015 Category: Principal judgment Parties: James Lees (Applicant) Commissioner of Police (Respondent) Representation: Counsel: S Ryan (Applicant) J Darams (Respondent)

Solicitors: Cardillo Gray Partners (applicant) K & L Gates (Respondent) File Number(s): 2017/00304093

Judgment 1. By an order dated 26 September 2017 the respondent, pursuant to s 181D of the Police Act 1990 (NSW), removed the applicant from his position as a police officer. The applicant challenges that order as harsh and unreasonable.

Legislation 1. The Commission's duty in conducting the review is set out in s 181F of the Police Act. It provides: 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 1. Neither counsel made any detailed submission about the application of the section in this case.