Vizzone v Commissioner of Police [2020] NSWIRComm 1034

Industrial Relations Commission New South Wales Medium Neutral Citation: Vizzone v Commissioner of Police [2020] NSWIRComm 1034 Hearing dates: 28 April 2020 Date of orders: 30 April 2020 Decision date: 30 April 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Categories two, three and four of the Summons to Produce filed by the Applicant on 10 March 2020 are set aside Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles – whether documents sought for a legitimate forensic purpose – whether summons a fishing expedition Legislation Cited: Police Act 1990 (NSW) s 181D, 181F Cases Cited: Bradley Eade-Smith v Commissioner of Police [2009] NSWIRComm 37 Formston v Commissioner of Police [2006] NSWIRComm 88 Hessenberger v Commissioner of Police [2009] NSWIRComm 89 Inspector Estreich v Leon [2012] NSWIRComm 84 Category: Procedural and other rulings Parties: Ben Michael Vizzone (Applicant)

Commissioner of Police (Respondent) Representation: Counsel:

D O'Sullivan (Applicant)

J Darams (Respondent)

Solicitors:

VRT Lawyers (Applicant)

Kingston Reid (Respondent) File Number(s): 2019/380440 Publication restriction: No

Judgment 1. These proceedings involve an application for the Commission to review a decision by the Commissioner of Police to remove Mr Ben Vizzone from the NSW Police Force pursuant to s 181D(1) of the Police Act 1990 (NSW). The matter is listed for hearing before me from 29 June 2022 to 2 July 2020. 2. In anticipation of that hearing, on 10 March 2020 the solicitors for Mr Vizzone, VRT Lawyers, filed a summons to produce directed to the Commissioner of Police ("Summons"). Amongst other things, the Summons called for the production of the following documents: "2. All notices, letters, correspondences, including warnings, suspension notices, section 181(D) [sic] notices sent to the following officers in relation to the Whatsapp group named in paragraph 1: a. Senior Constable Dunne; b. Constable Jenna Harper; c. Constable Dean Farman; d. Constable Jordan Crotty; e. Senior [Constable] Zyon Bridger; f. Constable Matthew Cash; g. Constable Kyle Sonter; and h. Constable Anthony Betts-Smith 3. Further to paragraph 2 above, any submissions, replies, documents, statements, evidence or things sent by any named offices in paragraph 2 in relation to the Whatsapp group. 4. A copy of all final letters which gives the final outcome of punishment to all officers named in paragraph 2 including any s 181D notices or s 171 notices;…" 1. On 24 March 2020 Commissioner of Police filed with the Industrial Registry a notice of motion seeking an order setting aside these and other categories in the Summons ("Motion"). Relevantly for present purposes, under the heading "Grounds and reasons" in the Motion the Commissioner of Police asserted that: 1. each of categories two, three and four have no legitimate forensic purpose; 2. each of the documents sought by categories two, three and four in the Summons are irrelevant to the issues the Commission must determine in these proceedings; and 3. categories two, three and four are a fishing expedition. 1. The Motion was supported by an affidavit of Martin Watts, a solicitor in the employee of Kingston Reid, the solicitors for the Commissioner of Police, sworn on 24 March 2020. 2. Subsequent to the filing of the Motion the Commission was provided with correspondence between the parties, including a letter from VRT Lawyers to Kingston Reid dated 2 April 2020. In that letter VRT Lawyers stated that Mr Vizzone no longer pressed three categories in the Summons that the Motion had also sought be set aside. Further, VRT Lawyers suggested a limitation to the documents called for in categories two, three and four. Kingston Reid informed VRT Lawyers that, despite the suggested modification, the Motion was pressed in respect of those categories. 3. The Motion came on for hearing on 28 April 2020. Mr J Darams of counsel appeared for the Commissioner of Police. Mr D O'Sullivan of counsel appeared for Mr Vizzone. 4. In his submissions, Mr Vizzone maintained that he only sought production of the documents as outlined in the letter from VRT Lawyers to Kingston Reid dated 2 April 2020. His submissions stated as follows: "2. In relation to the Disputed Categories, the Applicant now only presses for production of documents that fall into the following categories: Documents that relate to allegations concerning contraventions of: i) Sections 7 and 211F of the Police Act 1990; ii) Clause 50 of the Police Regulation 2015 (as in force between 24 June 2017 and 30 (June 2017); iii) Sections 22A and/or 22B of the Anti-Discrimination Act 1977; iv) Points 1, 3, 4, 6 and/or 10 of the NSW Police Force Code of Conduct and Ethics; v) the NSW Police Force Personal Use of Media Policy and Guidelines; and/or vi) the Respectful Workplace Behaviour Guidelines. arising from the Whatsapp chat group entitled Patrol Fairies 2.0. 3. The narrowing of the Disputed Categories restricts the documents sought to those relating to the same contraventions of the various policies, codes etc which give rise to the first four findings of misconduct against the Applicant." (Sic, emphasis in original) 1. At the outset of the hearing I confirmed with Mr O'Sullivan the following: 1. Mr Vizzone intended that categories two, three and four in the Summons should be read as calling only for those documents set out in paragraph 2 of Mr Vizzone's submissions; and 2. it was not intended to expand the group of officers in respect of whom documents were sought beyond the eight names in category two of the Summons. 1. In his written submissions the Commissioner of Police contended as follows: "19. Categories two, three and four of the Summons are, self-evidently, related. In summary, the Applicant is seeking all documents pertaining to any disciplinary action taken against eight other officers that were members of the WhatsApp Chat. It should be observed that there were further participants in the WhatsApp Chat beyond those eight officers and the Applicant. 20. The Applicant has filed his evidence in chief. In so doing, he has set out the case that he intends to present in order to meet the onus that he bears in these proceedings. 21. There is no factual dispute in these proceedings that the Applicant sent the relevant messages to the WhatsApp Chat or that he committed the speeding offence. Broadly speaking, the Respondent contends that the Applicant's behaviour in the WhatsApp Chat amounts to misconduct, while the Applicant appears to dispute this characterisation, at least in part. Whether or not the Applicant engaged in the misconduct is now for the Commission to determine in examining whether the Order is harsh, unjust or unreasonable. 22. Importantly, nowhere in the Applicant's material is there any evidence at all about any disciplinary action taken against the other officers, and how that may be relevant to the Applicant and the Order that was made for his removal. It is not a matter that arises on his evidentiary case at all. Accordingly, it is not a fact in issue in these proceedings. … 25. It appears that the only reason the Applicant wants the material the subject of the Disputed Categories is to assess whether or not he can present a case that he has been treated differently to other officers that participated in the WhatsApp Chat. It can be immediately observed that the Applicant, having led no evidence on the issue, does not know what the documents will say, and is engaged in a fishing expedition to determine if he has a case to present. That fishing expedition is manifest when one has regard to the breadth of the categories specified and the documents sought. That is sufficient basis alone to set the categories aside. However, the difficulties with the Disputed Categories run deeper. 26. The task facing the Commission, as set out above, is to determine whether the Order issued to the Applicant is harsh, unjust or unreasonable. It is for the Commission to objectively assess the Applicant's misconduct, and then determine if the Order made against him is harsh, unjust or unreasonable. The Commission will not be assisted in this task by documents relating to the discipline of other police officers for their own misconduct. 27. In that regard, the jurisprudence in the Commission is clear that such a comparison exercise is impermissible and irrelevant in proceedings of this nature. This is because no instance of misconduct by a police officer is ever exactly the same, nor are the factors that the Respondent will consider when implementing disciplinary action, such as an officer's disciplinary history, seniority, and other mitigating and aggravating factors, ever exactly the same. Accordingly, this Commission has regularly ruled that the comparison exercise that the Applicant would apparently have the Commission undertake in these review proceedings, by way of summonsing and tendering the documents the subject of the Disputed Categories, is unsafe and has no probative value whatsoever." (Footnote omitted) 1. The submissions proceeded to quote at length from the decisions of this Commission in Formston v Commissioner of Police [2006] NSWIRComm 88 and Hessenberger v Commissioner of Police [2009] NSWIRComm 89. It is not necessary to reproduce those passages. 2. Mr Vizzone's written submissions included the following: "11. The 2 April 2020 correspondence raises the following further basis in support for the production of documents in the Disputed Categories: (a) The lack of understanding of the application of the NSW Police Force Personal Use of Media Policy and Guidelines (the Media Policy) to the Whatsapp Chat Groups; (b) the offensive nature of the conversation, specifically whether the participants of the conversation intended for the chat to be offensive and whether other participants were offended; (c) whether the actions of the Applicant did constitute a contravention of the various policies and guidelines. 12. With respect to the (a), the evidence submitted by the Applicant discloses that he was not aware that the Media Policy applied to Whatsapp Chat Groups. The evidence of the Assistant Commissioner seeks to call that into question and the Disputed Materials will be relevant to the resolution of this issue. In particular, it is anticipated that there was a general lack of awareness by those participating in the Whatsapp group as to the application of the Media Policy to Whatsapp chats. 13. As to (b) and (c), this issue goes to the evidence of the Applicant as to the nature of the workplace and the nature of the dialogue therein. Again, the evidence of the Assistant Commissioner challenges this evidence and the documents within the Disputed Categories are relevant to the Commissions Differential treatment 14. Contrary to the Respondents Submissions, Differential Treatment can be relevant to the Commissions consideration of the statutory test as to whether the dismissal was 'harsh, unreasonable or unjust'. 15. For instance. in National Jet Systems Pty Ltd v Mollinger a Full Bench of the then Industrial Relations Commission of Australia upheld a decision at first instance that the applicant was unfairly dismissed for the reason that different treatment afforded to another employee involved in the same incident was 'harsh, unreasonable or unjust'. 16. Whilst Differential Treatment can be relevant to the consideration of whether a dismissal is harsh, unreasonable or unjust, there must be sufficient evidence of the alleged comparable cases to enable a proper comparison to be made. 17. In the circumstances of this case, the comparison that is sought to be made is with respect to other persons who were members of the same Whatsapp chat group whose actions in that respect constituted the same misconduct as determined as against the Applicant. 18. This is to be contrasted with the comparison sought to be drawn by the Applicants in the cases relied upon by the Respondent in Dangerfield and Hessenberger." (Sic, footnotes omitted) 1. The submissions made by Mr Darams in response to these contentions may be summarised as follows: 1. It is not part of the case articulated by Mr Vizzone that he was not aware that the Media Policy applied to WhatsApp chat groups. Even if it were to be advanced as part of his case, the awareness of others as to the application of the Media Policy is not relevant. All that is relevant for the present proceedings is Mr Vizzone's awareness. 2. Evidence as to "the nature of the workplace and the nature of the dialogue therein" can only be relevant to the allegation as to whether Mr Vizzone behaviour amounted to sexual harassment. Whether other officers intended for the chat to be offensive and whether other participants were offended, or had particular views as to whether the conduct breached relevant legislation, codes or policies is not relevant. The content of the WhatsApp chats itself will determine whether it is offensive or otherwise in breach of the legislation, codes or policies. 3. Differential treatment is again not part of the case that has been advanced by Mr Vizzone. In any event, a comparison as to the treatment afforded other officers is not part of the Commission's task in determining whether Mr Vizzone's removal was harsh, unreasonable or unjust.