Dobbie v New South Wales Police [2006] NSWIRComm 12 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Dobbie v New South Wales Police [2006] NSWIRComm 12

FILE NUMBER(S): 4222

HEARING DATE(S): 31/01/2006

DECISION DATE: 24/03/2006

PARTIES:

APPLICANT

Brett John Dobbie

RESPONDENT

New South Wales Police

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

APPLICANT

Mr E Oates

Oates & Smith Solicitors

RESPONDENT

Mr G De Courcey

State Crown Solicitor's Office

CASES CITED: Craig Stephen Dangerfield v Commissioner of Police (2003) NSWIRComm 96

Little v Commissioner of Police (No 2) (2002) 112 IR 212

Starr v Commissioner of Police (2001) NSWIRComm 226 at [339]

Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [215] to [220]

LEGISLATION CITED: Industrial Relations Act 1996 Part 5 Chapter 2 s 89

Police Act 1990 ss 181D(1) 181E(1) 1818(F)

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Marks J

Friday 24 March 2006

Matter No IRC 4222 of 2005

BRETT JOHN DOBBIE v NEW SOUTH WALES POLICE

Application by Brett John Dobbie under section 181E of the Police Act 1990 for review of an order of the Commissioner of Police

JUDGMENT

[2006] NSWIRComm 12

1 The applicant in these proceedings, Brett John Dobbie, seeks certain relief against the respondent, named as the Commissioner of Police, under s 181E of the Police Act 1990 ("the Act"). The application results from an order made by the Commissioner of Police under s 181D of that Act removing the applicant as a police officer. Relevantly, s 181D(1) is in the following terms:

s 181D Commissioner may remove police officers

(1) The Commissioner may, by order in writing, remove a police officer from NSW Police if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct.

2 Sections 181E(1) is in the following terms:

s 181E Review generally

(1) A police officer who is removed from NSW Police by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the "Commission") for a review of the order on the ground that the removal is harsh, unreasonable or unjust.

3 The review sought by the applicant of the Commissioner's decision is governed by s 181F of the Act, the provisions of which are as follows:

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 NSW Police,

(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 NSW Police 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 NSW Police, and the fact that the Commissioner made the order pursuant to section 181D (1)).

4 The factual background to these proceedings was substantially the subject of agreement. The applicant joined the New South Wales Police Force on 21 December 1999. On 22 June 2000 he was involved in a motor accident. He was charged with mid-range PCA, sustained a fine of $1000 and was suspended from driving for 12 months. Dismissal proceedings under the Act were considered but they were not supported by the applicant's senior officers. He was placed on a Remedial Performance Program and was required to participate in drug and alcohol counselling. The applicant said that this incident occurred when he was attempting to comfort his brother who had recently broken up with his girlfriend. He said that he did not realise that he had exceeded the legal alcohol limit on that occasion.

5 The second incident, which led to these proceedings, occurred in the early hours of 31 May 2004. Some five weeks prior, a close friend of the applicant had committed suicide. The applicant accepted an invitation to join a colleague for some drinks in order to assist in consoling him over his friend's death. The applicant said that he had not intended to drive his vehicle on that occasion. However, it is clear that the applicant consumed a number of drinks at one venue and then proceeded to drive his vehicle to the police station at which he was stationed, intending to not drive it further. He then attended another venue and says that he can remember nothing until being attended to by ambulance officers. It appears that the applicant returned to the police station and attempted to drive his vehicle. In doing so he lost control, travelled onto the incorrect side of the roadway, collided with parked vehicles and with a glass shopfront, then reversed onto the correct side of the roadway but collided with another shopfront. He left the scene of the accident and was located nearby by police. He pleaded guilty to driving with a high range PCA and was ultimately sentenced to 200 hours of community service on 18 April 2005 and was disqualified from driving for three years.

6 By notice dated 30 May 2005 the Commissioner of Police informed the applicant that he was considering his suitability to continue as a police officer, taking into account the conduct which occurred on 31 May 2004. As permitted by the Act, the applicant made written submissions by notice dated 6 July 2005. He conceded the seriousness of his conduct and expressed remorse and contrition for what had occurred. He apologised for his behaviour and for the fact that he had breached the code of conduct applying to New South Wales Police. The applicant explained what had occurred on 31 May 2004 as being a reaction to the suicide of his friend in the context of attempts by a work colleague to assist him in dealing with it.

7 In his submissions, the applicant referred to the fact that he had undertaken both grief counselling and counselling for alcohol abuse, and that he was confident that he had successfully overcome these difficulties and was strongly motivated to remain within the New South Wales Police Force.

8 As a result of the incident, the applicant was required to pay compensation with respect to damaged property in excess of $25,000 and lost the value of his vehicle, which was written off and, at the time of the incident and due to the applicant's consumption of alcohol, uninsured. Furthermore, he has suffered and continues to suffer financial loss because his present employment is at a significantly lesser rate of pay.

9 A report prepared by Mi Weekes, an alcohol and drug counsellor with the Health Services Directorate of the New South Wales Police Force, following a consultation on 1 June 2004 stated, in part; "prior to his friends' death, Constable Dobbie said that his average alcohol consumption was approximately 20 standard drinks over 7-8 hours. This amount was consumed once a week or once a fortnight. Constable Dobbie said that he had not had any alcohol for 5 weeks prior to 30/5/04. On this night, whilst drinking, he had been thinking about his deceased friend".

10 The report concluded that Constable Dobbie regularly drank alcohol "in excess of amounts recommended by the National Health and Medical Research Counsel for a low level of risk to health". In terms of prognosis, the report said "there can be no guarantees in alcohol rehabilitation and relapse can be a part of recovery. Since his car accident, however, Constable Dobbie informs me that he has reduced his alcohol intake to an average of 3 standard drinks once a fortnight".

11 During the course of oral evidence, the applicant explained that there was a culture of habitual binge drinking within those areas of the New South Wales Police Force with which he had associated. It was said that this was undertaken to "relieve stress" and that it was part of the "police way" of doing so.

12 The applicant said that he now restricted his alcohol consumption to 3 light alcohol beers on any one occasion. Furthermore, during the course of the proceedings he instructed his solicitor that if reinstated in employment with the New South Wales Police Force he would undertake never to consume any alcoholic beverage again, including social occasions which were not proximate to any work period.

13 There was tendered into evidence on behalf of the applicant extracts from records relating to other cases where members of the New South Wales Police Force had been involved in driving offences brought about by excessive alcohol consumption. In some of these cases, the offences were of a most serious kind, and it was said on behalf of the applicant that the former-Commissioner of Police had not determined to take action to dismiss the police officer concerned. In some of these cases there was more than one offence involving consumption of excessive alcohol. This evidence was tendered to demonstrate that the action taken by the Commissioner in these proceedings was, in all the circumstances, harsh. The problem with this type of evidence is that, in my opinion, unless there is a detailed examination of all of the relevant circumstances concerning each police officer, it is difficult to compare the attitude taken by the Commissioner in a manner which might reveal harshness in a particular situation. Much will depend on matters such as seniority, length of service, mitigating personal circumstances and the like. The information provided in the material tendered into evidence does not allow this comparison to be made and, in the circumstances, I do not propose to take it into account.

14 I should add for completeness that there was no question concerning the competency, performance or integrity of the applicant as a police officer. The sole matter related to his conduct.

15 By order made under s 181D(1) of the Act dated 29 July 2005 the Commissioner removed the applicant from the New South Wales Police Force. Attached to the order was a "statement of reasons" which took into account the applicant's conduct on 31 May 2004, including the damage sustained, the breach of the high range prescribed concentration of alcohol and the fact that the applicant had left the scene. The Commissioner acknowledged the applicant's expression of regret and remorse and a number of testimonials provided by the applicant's family and friends. He further acknowledged the mitigating circumstances, including the suicide of the applicant's close friend. Furthermore, the Commissioner acknowledged the "significant steps" taken by the applicant to address his alcohol abuse and that he had "successfully reached the end of such treatment". It appears from the statement of reasons that the Commissioner was predominantly motivated by the fact that the applicant had had a prior offence involving excessive consumption of alcohol in June 2000 and that it was the applicant's "lapse into alcohol use" that caused the 31 May 2004 incident. The Commissioner said in part "whilst I have taken into account your mitigating circumstances, whereby you have suffered the loss of a friend and have suffered financially, I am profoundly concerned that this is your second conviction whereby you have been involved in an accident whilst impaired by alcohol, with a distinguishing feature that on this occasion you fled the scene of the accident...It would seem to me that the previous management action (for the similar matter in 2000) has been disregarded. I believe that the community has a right to expect that members of the NSW Police will not behave in this way ... I want you to clearly understand that I expect an appropriate standard of behaviour from all police officers at all times. Although you have provided reasons of mitigation, which I have carefully reviewed, I can see no reason that would provide me with any basis not to lose my confidence in your suitability to remain a police officer...".

16 The process by which the review of the Commissioner's decision is to be conducted is determined by s 181F(1), the provisions of which I have earlier set out. It must firstly be borne in mind that what is being reviewed is a determination by the Commissioner of Police that he does not have confidence in the applicant's suitability to continue as a police officer having regard, in the circumstances of these proceedings, to the applicant's conduct. I infer that the assessment of the applicant's suitability to remain in the Police Force was based on two matters. The first was the circumstances of the incident of 31 May 2004. The second is the lack of confidence that the applicant would not engage in similar conduct in the future having regard to the history of two accidents involving excessive consumption of alcohol. These two specific matters must also be seen against an obvious background designed to uphold the integrity of the Police Force and ensure that Police Officers conduct themselves at all times, both at work and in their private capacity, in accordance with the law.

17 In submissions made on behalf of the applicant, Mr Oates, solicitor, candidly acknowledged the applicant's wrongdoing. In the course of oral submissions, Mr Oates also agreed that if the Commission were to intervene on review in favour of the applicant it would be on the basis that the applicant's removal as a Police Officer was harsh rather than unreasonable or unjust. The applicant's submissions emphasised those factors that tended to explain and mitigate his conduct. Not unnaturally, these traversed the applicant's distress as a result of the suicide of a close friend, the fact that his judgment had been impaired by excessive consumption of alcohol, that the applicant had expressed remorse and regret, had undertaken alcohol counselling, had moderated his drinking habits considerably, and that the applicant was a single person striving to "make his way in the community and retain the respect and regard of his family, friends and the public". These submissions also emphasised that the applicant had not otherwise come under adverse attention during his career as a police officer and that he had suffered significant economic and personal detriment as a result of his removal from the police force.

18 The applicant's submissions also traversed such records as were produced with respect to the circumstances of other police officers. For reasons earlier given I do not propose to consider these matters.

19 In answer to the applicant's submissions, the solicitor for the respondent emphasised that the Commissioner had acted appropriately in determining to remove the applicant, and that the Commissioner had taken into account all of the mitigating circumstances in the applicant's favour. It was emphasised that there would always be a likelihood of a recurrence of excessive drinking, and that there was no evidence of steps taken by the applicant to resolve this matter. In this context, the applicant's commanding officer had declined to intervene on his behalf, on the basis that two drink-driving offences were excessive in terms of giving the applicant another chance to retain employment in the Police Service.

20 It is a trite observation that the determination whether to intervene in favour of the applicant involves the exercise of a value judgment based on all of the factual material. However, some guidance is provided by s 181F(3) which compels the Commission to have regard to the applicant's interests, as well as the public interest, including the maintenance of the integrity of the New South Wales Police Force and the fact that the Commissioner had determined to make an order under s 181D(1). Of course, the mandatory consideration of each of these matters must be undertaken in an appropriate and balanced manner. That is, the undoubted interest of the applicant in maintaining the financial rewards of continued employment in the Police Service cannot be allowed to overshadow the public interest and, presumably, vice versa.

21 The power of review given unde s 181E of the Act is, in effect, superimposed upon the regime established by Part VI of Chapter 2 of the Industrial Relations Act 1996, the "unfair dismissals" provisions. However, Part VI does not specifically mandate regard to the interests of the applicant and the public interest in the manner provided for in s 181F(3) of the Act. It must be assumed, therefore, that the legislature intended that both of these matters be taken into account, in the balanced manner to which I have referred.

22 In this regard, I adopt and apply observations of Walton J, Vice President, in Starr v Commissioner of Police (2001) NSWIRComm 226. At paragraph [339] his Honour said, in part:

"When assessing if a removal was harsh, unreasonable or unjust in proceedings brought under s181E, the Commission is required to consider the interests of the applicant and the public interest (which is taken to include the interest of maintaining the integrity of the Police Service and the fact that the Commissioner has made an order pursuant to s181D(1)): see s181E(3) of the Act. The public interest may be a relevant consideration both in assessing whether the removal of an officer was harsh, unreasonable or unjust and in determining the appropriate relief to be granted if the removal is found to be so: see Van Huisstede at 110. Although s181E(3) does not presume that the public interest will in every case require the Commission to uphold the actions of the Commissioner in removing an officer, the effect of the section is to direct the Commission's attention to the important public interest in ensuring that unsuitable or incompetent officers are not permitted to remain in the Police Service".

23 As I have previously indicated, the applicant had undergone drug and alcohol counselling prior to the May 2004 incident, and had undertaken further counselling after that incident. These were matters which the Commissioner took into account. However, the Commissioner could not have taken into account the undertaking given by the applicant through his solicitor during the course of the hearing to the effect that he would never consume any alcoholic beverage if reinstated to employment with the New South Wales Police Force, presumably for so long as he remained with the Force. The applicant submitted that the Commission was not only entitled to take into account matters which occurred subsequent to the removal of an officer from the Police Force, but was required to take such matters into account. In making these submissions the applicant relied on observations of Walton J, VP, in Starr v Commissioner of Police (2001) NSWIRComm 226 and of Staunton J in Craig Stephen Dangerfield v Commissioner of Police (2003) NSWIRComm 96. The applicant also referred to the judgment of the Full Bench of the Commission in Little v Commissioner of Police (No 2) (2002) 112 IR 212, in which undertakings given by the applicant after removal and in contemplation of being reinstated or reemployed were taken into account. It was submitted that the applicant's undertaking to foreswear from alcohol should be taken into account as creating an assurance that the applicant would not engage in further conduct involving alcohol, a matter which was of concern to the Commissioner when determining that he should be removed from the Police Force. As was pointed out, if the applicant did not comply with the undertaking which he had given, he would be amenable to removal from the Police Force by reason of the combined provisions of sections 173 and 181D of the Act. Such a decision, it was said, would be non-reviewable.

24 The respondent's submissions with respect to this point traversed the authorities to which I have previously referred, and as I understand the written submissions, did not deny that when considering whether a removal was harsh, the Commission was entitled to take into account matters which occurred post the removal from the Police Force. However, the respondent submitted that there were concerns about the ability to accept and incorporate undertakings within the reinstatement powers of the Commission. I shall proceed on the basis that I am entitled to take these circumstances into account.

25 I have previously observed on a number of occasions that the applicant's problems seem to be rooted in excessive consumption of alcohol. This is part of the rationale of the Commissioner's reasoning for having lost confidence in the applicant. If it were not for the undertaking given by the applicant during the course of the proceedings, I would have had no hesitation in upholding the decision of the Commissioner and determining that in the circumstances it was not relevantly harsh, nor unreasonable or unjust. However, given the undertaking which the applicant has given, and assuming that there is power to create a mechanism for the enforcement of that undertaking, I am, on balance, and not without a degree of hesitation, prepared to find that the removal of the applicant in all these circumstances may be characterised as harsh, having regard to his interests and allowing also for the public interest, including the maintenance of the integrity of the New South Wales Police. That is, if there can be put in place some process by which the Commissioner may have some complete confidence in the undertaking given by the applicant then it would be appropriate to reinstate him. I emphasise that this conclusion is motivated solely by the undertaking given by the applicant and is not intended in any way to infer that the decision of the Commissioner to remove the applicant from the Police Force was, at the time that it was made and in the circumstances in which it was made, harsh.

26 The incorporation of provisions of the Industrial Relations Act 1996 into the review processes under the Police Act 1990 are dealt with in s 181G of that Act, which is in the following terms:

s 181G Application of Industrial Relations Act 1996 to reviews

(1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications:

(a) section 83 (Application of Part) is to be read as if subsection (3) were omitted,

(b) section 85 (Time for making applications) is to be read:

(i) as if a reference to 21 days in that section were instead a reference to 14 days, starting from the day on which the applicant is given a copy of the order to which the application relates, and

(ii) as if subsection (3) were omitted,

(c) section 86 (Conciliation of applications) is to be read as if it provided that a judicial member of the Commission who is involved in any endeavour to settle the applicant's claim by conciliation must not subsequently be involved in the conduct of proceedings on the review,

(d) section 89 is to be read as if subsection (7) (Threat of dismissal) were omitted,

(e) section 162 (Procedure generally) is to be read as if the requirement of subsection (2) (a) of that section that the Commission is to act as quickly as is practicable were instead a requirement for the Commission to commence hearing the application within 4 weeks after the application is made,

(f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless:

(i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or

(ii) the Commission gives leave.

(2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances:

(a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information,

(b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously,

(c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision.

27 The provisions of s 89 of the Industrial Relations Act 1996, save for subsection 7, apply. Relevantly, s 89 is in the following terms:

s 89 Orders for reinstatement, re-employment, remuneration, compensation

(1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed.

(2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable.

(3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order.

(4) Continuity If the Commission orders reinstatement or re-employment, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal.

(5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave.

(6) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment.

(7) Threat of dismissal In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.

(8) An order under this section may be made on such terms and conditions as the Commission determines.

28 If the Commission is empowered to order reinstatement on conditions, any such order will be made under s 89(8). I intend applying the provisions of this subsection in terms of the reinstatement of the applicant.

29 I should add that the respondent submitted that, in acceding to the applicant's request for favourable review by reference to an undertaking given during the course of a hearing, the Commission would be encouraging "such actions as some sort of last (or third) chance avenue for non-removal". I accept that such a course of action may encourage applicants to endeavour to manipulate the review system to their own advantage. However, by reason of the conditions which I intend imposing, I am hopeful that no such assertion may be levelled in the circumstances of these proceedings. Presumably the Police Force has invested a great deal in training the applicant and would need to expend even more in training a replacement officer. Furthermore, the applicant's history should provide a timely reminder for fellow officers, assuming there is some validity in the applicant's reference to a binge drinking culture within the force. Finally, if some process can be put in place to prevent the applicant from succumbing to what has obviously been a severe drinking problem in the past, it is likely that he will be saved from the possibility of serious health risks in the future.

30 Having regard to the conclusions to which I have come, and because of the finely balanced circumstances to which I have referred, I would not propose ordering the payment of any monies by way of remuneration, nor would I intend making any order to the effect that the period of employment of the applicant is taken not to have been broken by the removal of the applicant from the Police Force.

31 I make the following orders:

1. The respondent shall reinstate the applicant in his former position effective on terms not less favourable than those which would have applied to him if he had not been removed from the Police Service, other than any remuneration which the applicant would have earned if not removed from the Police Service between the date of removal and the date of this order and other than the effect of the orders which follow;

2. The reinstatement of the applicant is conditional upon the applicant entering into a deed in a form satisfactory to the respondent by which the applicant covenants: That for such period as he remains a member of the New South Wales Police Service:

(a) that he will not consume at any time any substance containing alcohol, whether at work or otherwise;

(b) that he will submit to such breath tests or other tests to determine whether alcohol has been consumed by him, whether on a regular, irregular basis or whether at appointed times or randomly, with or without notice, as the Commissioner may determine;

(c) that he will submit to such supervision as the Commissioner may require from time to time so as to ensure that the applicant's covenants contained within the deed are complied with;

(3) Such deed shall provide that any responsible officer may exercise the powers of the Commissioner;

(4) That the applicant will submit to and attend such training, instruction or counselling as the respondent may require of him from time to time with respect to drug and alcohol abuse and the consumption of alcohol and drugs of any kind;

(5) That the Commissioner or any responsible officer may publicise these conditions within such areas of the Police Force with which the applicant may come into contact whilst engaged as a police officer, so as to allow the applicant's compliance with these orders to be monitored and so as to encourage fellow officers to ensure that the applicant does not breach these orders by consuming alcohol or otherwise breaking the covenants within the deed.

LAST UPDATED: 24/03/2006