Alexander v Commissioner of Police [2009] NSWIRComm 3 (6 February 2009)

Last Updated: 11 February 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Alexander v Commissioner of Police [2009] NSWIRComm 3



FILE NUMBER(S):
IRC 1832

HEARING DATE(S):
5 December 2008

DATE OF JUDGMENT:
6 February 2009

PARTIES:
APPLICANT:
Raymond Alexander

RESPONDENT:
Commissioner of Police

CORAM:
Boland J President


CATCHWORDS: UNFAIR DISMISSAL - Probationary police officer failed to follow basic policing procedures thereby placing persons in potential danger and was subsequently untruthful about his conduct - Reinstatement sought - Identification of principles to be applied and matters to be considered - Importance of integrity in a police officer - Consideration of competing factors in determining whether dismissal was harsh, unjust or unreasonable - Penalty of dismissal found to be too severe - Dismissal was unreasonable - Reinstatement ordered.

POLICE - Unfair dismissal - Probationary police officer failed to follow basic policing procedures thereby placing persons in potential danger and was subsequently untruthful about his conduct - Reinstatement sought - Identification of principles to be applied and matters to be considered - Importance of integrity in a police officer - Consideration of competing factors in determining whether dismissal was harsh, unjust or unreasonable - Penalty of dismissal found to be too severe - Dismissal was unreasonable - Reinstatement ordered.


LEGAL REPRESENTATIVES
APPLICANT:
Ms P S Lowson of counsel
Solicitor:
Mr E L Oates
Oates and Smith Solicitors
RESPONDENT:
Mr R S Warren of counsel
Solicitor:
Mr J W Li
Blake Dawson Solicitors

CASES CITED:
Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325
Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410
Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98
Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151
Humphries v Cootamundra Ex-Services and Citizens Memorial Club Ltd [2003] NSWIRComm 211; (2003) 128 IR 37
Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212
Metropolitan Meat Industry Board v Australasian Meat Industry Employees’ Union, New South Wales Branch [1973] AR 231
Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167
Plummer v Stannard Bros Launch Service Pty Limited [2005] NSWIRComm 301
Police Association of New South Wales (on behalf of Myers) v Commissioner of Police [2005] NSWIRComm 148
Port Macquarie Golf Club Limited v Stead and Another (1996) 64 IR 53
Retail Traders Association NSW v Shop, Distributive and Allied Employees Association of NSW (1990) 36 IR 38

LEGISLATION CITED:
Industrial Relations Act 1996
Police Act 1990


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BOLAND J, President

Friday 6 February 2009

Matter No IRC 1832 of 2008

RAYMOND ALEXANDER v COMMISSIONER OF POLICE

Application by Raymond Alexander re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2009] NSWIRComm 3

1 Raymond Alexander was a Probationary Constable in the New South Wales Police Force, based at Macquarie Fields Area Command. On 2 October 2007, Mr Alexander and his partner, Senior Constable Deborah Borg, were called to investigate a domestic violence dispute at Claymore. The dispute concerned an allegation by Ms T that her former partner, Mr L, had assaulted her. There was an enforceable Apprehended Violence Order ("AVO") protecting Ms T from Mr L. The AVO prohibited Mr L from going within 100 metres of any premises in which Ms T resided.

2 Whilst SC Borg was obtaining information from Ms T at her residence, Mr Alexander observed an unidentified man enter through the front door of the residence and exit via the laundry. Mr Alexander neither challenged the man nor did he attempt to prevent him from leaving the house. Mr Alexander subsequently notified SC Borg about the unidentified man, and they searched for him outside the residence, but were unsuccessful in locating him. It was later established that the man was Mr L.

3 Mr Alexander later told SC Borg he did not see Mr L and was only told about his presence in the house by Ms T's daughter. Mr Alexander maintained this lie on three subsequent occasions.

4 On 1 September 2008, Assistant Commissioner Michael Corboy, Commander, Education and Training Command, signed an order under s 80(3) of the Police Act 1990 dismissing Mr Alexander from the New South Wales Police Force. The order was founded on the grounds that Mr Alexander failed to follow basic policing procedures by neglecting to challenge an unidentified man thereby placing persons in potential danger and his subsequent untruthfulness regarding the circumstances of his attendance at Ms T's residence.

5 Mr Alexander subsequently sought relief under Pt 6 of Ch 2 of the Industrial Relations Act 1996 (“the Act”), alleging unfair dismissal. Mr Alexander seeks reinstatement to his former position on the grounds that his removal was harsh, unreasonable and unjust.

Factual background

6 Mr Alexander commenced employment as a Probationary Constable at Macquarie Fields Area Command in late January 2007. He was placed in Team 2 under the guidance of Field Training Officers (“FTOs”) Senior Constable Breed and Constable Rice. After failing his first attempt to complete Session 3 of the Probationary Constable’s training in April 2007, he commenced a Performance Development Plan (“PDP”). After successfully completing the PDP, Mr Alexander passed Session 3 in August 2007 and commenced Session 4 of the programme in September 2007.

7 On the evening of 2 October 2007, Mr Alexander and SC Borg were called to the domestic dispute described earlier. Upon arrival at Ms T's premises, Ms T disclosed to Mr Alexander and SC Borg the AVO and the alleged assault. Whilst SC Borg was taking a statement from Ms T in the kitchen, Mr Alexander walked into the living room. He witnessed a man enter the front door of the house and walk quickly through the house to exit via the laundry door. Mr Alexander asked one of Ms T's children standing nearby who the man was, and after three questions, the child answered that the man was Mr L. Mr Alexander proceeded to the kitchen and asked Ms T as to whether Mr L was wearing some particular clothes and was of a particular appearance. Ms T agreed with the description of Mr L, after which Mr Alexander stated that he believed that Mr L had just walked through the house and out the back.

8 SC Borg immediately ran to the laundry door and searched for Mr L in the rear yard. Mr Alexander used his portable radio to notify a nearby patrol car of a description of Mr L and request that they search the area for him. SC Borg returned to the house and asked Mr Alexander why he had not stopped Mr L. Mr Alexander replied that he did not know who the man was at the time. SC Borg’s evidence was that at this point, Ms T's child entered the kitchen and said, “I was grabbing onto his arm trying to stop him and saying to you [Mr Alexander] ‘this is Paul, this is Paul [Paul being Mr L]’”. Mr Alexander then replied, “Oh, I’m sorry, I didn’t hear you”.

9 SC Borg continued to take Ms T's statement and then she and Mr Alexander left the premises. According to SC Borg, the following conversation ensued as they approached the police vehicle:

Borg: I am extremely annoyed with you. I could have been shot in the back of the head then. Why didn’t you challenge him?

Alexander: Oh, I didn’t see him.

Borg: You just described him inside.

Alexander: No, that was the little girl who told me what he looked like.

Borg: That’s bullshit Ray.

Alexander: No, I didn’t see him. Look Debbie I would never let anything happen to you.

Borg: Look Ray, in future you have to challenge people who walk though the front door.

10 After they had entered the car and started to drive down the street, SC Borg saw a male who fitted the description of Mr L about 100 metres from their car. SC Borg pointed to the male and asked Mr Alexander if it was, indeed, Mr L. Mr Alexander replied, “I don’t know, I didn’t see him” and drove in the direction that SC Borg had pointed to. Mr Alexander’s evidence was that he required the use of prescription lenses for viewing objects at a distance, but was not wearing his glasses at that point in the evening. SC Borg stated that Mr L was clearly visible from the illumination created by the car's headlights, and understood Mr Alexander’s comment to mean that he had not seen Mr L earlier at the house. Mr Alexander’s evidence was that his assertion about not seeing Mr L was pertaining to the moment when SC Borg pointed out a male figure. He stated that although he could make out a figure in the distance, he was unable to identify any characteristics of the figure. SC Borg and Mr Alexander were unable to apprehend Mr L. They continued performing other general duties and later returned to the police station.

11 Upon her return to the Macquarie Fields LAC, SC Borg formally reported the evening's incidents, which were, in turn, brought to the attention of the Education Office at the Macquarie Fields LAC. On 4 October 2008, Mr Alexander spoke with Constable Esposito about the incidents and maintained his position that he did not witness a man walk through the house during his attendance at Ms T's residence. In another recounting of the incident on 8 October 2007, Mr Alexander stated to Constable Bowling that he saw only a blur and a quick description of a man in the house but that he was gone by the time Mr Alexander got to the laundry door.

12 On 24 October 2007, Mr Alexander met with Sergeant Richard Simon in his capacity as Education Officer of Macquarie Fields LAC in relation to his general progression throughout the probation period and the incident of 2 October 2007. On initial questioning, Mr Alexander maintained his position that he had not seen Mr L enter and exit the premises during the visit. Sergeant Simon indicated that SC Borg had made an official complaint regarding what she considered to be lies told by Mr Alexander. Sergeant Simon suggested that Mr Alexander confess any untruths before any further investigations were made. After some persuasion in this regard, Mr Alexander admitted that he had seen a man in the house but had subsequently lied about this event so as not to seem incompetent or be the subject of ridicule amongst his peers.

13 On 25 October 2007, Mr Alexander recorded an outline of his version of the events of 2 October 2007, including his admission of subsequent untruthfulness to SC Borg, Constable Esposito, Constable Bowling and Sergeant Simon. Investigations were then carried out regarding Mr Alexander’s conduct and in December 2007 he was transferred to a new team under the guidance of FTO Leading Senior Constable Michelle Johns and Field Supervisors Sergeants Darren Reilly and Laurel Miller. Mr Alexander failed his Session 4 course in December 2007 and was permitted to withdraw from the following Session 4 programme. Mr Alexander continued to work on restricted duties until 1 September 2008 when he was dismissed from the New South Wales Police Force.

14 The order under s 80(3) of the Police Act set out the basis upon which Mr Alexander was dismissed. Following an outline of the facts, Assistant Commissioner Michael Corboy gave his reasons for dismissing Mr Alexander:

Considerations

20. I am greatly concerned by your failure to apply proper operational policing principles during the incident at claymore on 2 October 2008. I consider that your failure had the potential to expose Senior Constable Borg and the [T] family to danger. I consider that this failure reflects on your competence to be a police officer. In this regard, I also note that you initially failure both Session 3 and Session 4 of the Associated Degree in Policing Practice training and consequently had to be place don a three month Probationary Constable Development Plan. However, I have taken account of your contrition and acceptance that your conduct was below the standard expected of you. I consider this to be a significant mitigating factor.

21. You should be aware, however, that I am extremely concerned by your repeated lies and untruthfulness over a sustained period of time. I consider that your actions were aggravated by the fact that you continued to lie even when questioned, and that you repeated your lies to other officers, including senior officers. I have taken account of the fact that you subsequently admitted your untruthfulness and that you 'came clean' about your conduct, as well as having expressed remorse and contrition.

22. Further, I have considered the character references provided by Constable McCormack, Constable Bowling, Sergeant Miller, Sergeant Riley, Senior Constable Johns, Sergeant Macdonald. Senior Constable English, Senior Constable Lollback and Sergeant Bradbury. Against this, however, I have to consider the fact that your conduct did not involve an isolated incidence of untruthfulness, but, instead, involved a continued course of conduct over a period of time which involved various other officers.

23. I also note that you acknowledged by signature that you had read and understood the NSW Police Code of Conduct and Ethics, which relevantly states:

1. An employee of NSW Police must behave honestly and in a way that upholds the values and good reputation of NSW Police whether on or off duty.

...

You must act honestly, truthfully and with integrity in all of your dealings with other employees and the public.

24. I also considered the terms of your conditional offer of employment with the NSW Police Force. Part 8 of the conditional offer stated:

My performance including conduct ... and integrity ... throughout my probation period must also be deemed satisfactory ... / understand failure to achieve to a satisfactory level of ... conduct and integrity may result in termination of my employment.

Part 9 of the conditional offer stated:

I have read and fully understand the NSW Police 'Code of Conduct and Ethics' and will comply with the NSW Police 'Code of Conduct and Ethics'.

Part 10 of the conditional offer stated:

If I ... breach the Service's Code of Conduct and Ethics, including the spirit and intent thereof ... / ... may have my employment terminated at any time.

The conditional offer of employment also concluded with a signed acknowledgment by you that:

If I fail to comply, I am subject to a range of management options or remedies up to removal from the NSW Police.

25. Integrity is a core value of the NSW Police Force, and I believe that the highest standards of personal integrity and truthfulness are critical for a person to be a police officer. I consider that your conduct has been entirely inconsistent with the standards expected of an officer of the NSW Police Force by both the Commissioner of Police and the NSW community.

26. In these circumstances, I have decided that your untruthfulness, as a probationer, demonstrates a lack of the standards of integrity expected of a police officer, and your unsuitability to be confirmed as a constable of police. On this basis alone, I consider that dismissal would be appropriate. The other matters raised in this Order reinforce my decision.

27. Your dismissal takes effect from the date of this order.

28. You are to be paid two weeks salary in lieu of notice. Your final pay, including any annual leave accrued to the date of dismissal, is to be deposited to your account as soon as possible.

29. You are to return all items of uniform and any other items or property belonging to NSW Police Force issued to you, to the Commander, Macquarie Fields Local Area Command, as arrangements to release money owing to you at the time of termination of your employment cannot be made until all such items have been returned. It is in your interest to do so promptly.

Evidence

15 Mr Alexander provided to the Police Force and this Commission an explanation of his actions surrounding this incident. In relation to his untruthfulness to SC Borg, Mr Alexander stated:

As we were walking back to our vehicle, SC Borg told me that she was annoyed at me for allowing the person of interest to enter the location ... She stated that she had a family and that I could have got her killed. I became disappointed in myself as I realised that I had really messed up, but I did not act quickly enough to stop the male. I felt angry at myself for not acting quick enough and the fact that I had disappointed SC Borg. I did not want to escalate the situation and so I lied about seeing the person of interest physically in the house. SC Borg quizzed me further and I continued to lie. I apologized to her for screwing up with the failure to watch her back, but I did not tell her that I saw him briefly.

16 The following extracts from transcript illustrate the initial treatment Mr Alexander received at Macquarie Fields and the effect it had on his self esteem:

Q. What do you say to the Court today about your performance on that night and the lie?

A. My performance was unacceptable basically, because my lack of confidence at the time and this is no excuse but basically the lie itself was out of character completely. It is not something I do and basically also that there was a lot of fear and basically nervousness at the time and it was just unacceptable at the time.

Q. What was the fear of?

A. Further reprimands I had received previously.

Q. What had been your experience of being reprimanded up to that time?

On several occasions working with officers senior and field training officers and basically I would be pulled aside or yelled at in public or front of other officers in the room and told I had messed up or screwed up and basically I was punished or basically yelled at with other people around.

Q. How did that affect your confidence as a police officer?

A. Made me feel like I was not going to be able to keep continuing as a police officer. I was sick all the time and I always like basically I stopped liking my job because I kept think no-one really wants me around and basically my confidence was in free fall. I walked around on egg shells for some time.

17 Leading Senior Constable Johns was asked whether she was aware of Mr Alexander's performance prior to him moving to her team and if so was it positive or negative. Her reply was that "... it was negative, mostly”. It was Sergent Reilly's evidence that, initially, Mr Alexander was not "highly regarded".

18 In cross-examination, Mr Warren questioned Mr Alexander about his actions and in particular the seriousness of his dishonest behaviour:

Q. I see, and you understand that that [honesty] is a most important part of police work?

A. Sorry?

Q. Acting honestly?

A. Yes.

Q. And you admit, don't you, that you did not act honestly on 2 October?

A. Yes, I do.

Q. And on two further occasions during October, when speaking to your fellow officers?

A. Yes.

Q. Again on 23 October when you heard Sergeant Simon?

A. Yes.

Q. And you accept, don't you, that your actions in not acting honestly repeatedly during October were inconsistent with the standards expected of a police officer?

A. Yes.

19 In December 2007, Mr Alexander was transferred to a different team. That experience is recorded in the following evidence:

Q. Now, when you moved teams in December of 2007, what changed in terms of your experience with your field training officer and other officers?

A. The train or field training officer, someone I could approach, someone who will take me under their wing and start training me, because I felt I was so far behind everyone else because - and she even commented to my mentor, Sergeant Reilly, who is also one of my team leaders, said I am far behind, all of this I should have known previously.

...

Q. Was Sergeant Reilly aware of the circumstances that occurred in October?

A. Yes.

Q. And did you freely discuss that with him as well?

A. Yes.

Q. Now, in terms of what then happened, in terms of your, first of all, your self confidence as you worked with the new team?

A. Basically, my self confidence improved. I started feeling like I could do this job. I had people that would come up to me and basically speak to me as if I am a fellow officer, not somewhere I can get constantly in trouble for. I had people if I needed help I could go to straight away, sit with here, I will tell you how to do it, which is something I didn't have before. And basically I started feeling like I was accepted as police officer, and I started feeling that I could do this job.

Q. In terms of your performance of police duties, what changed once you went to the new team?

A. Well, started learning a lot, and a lot of things I didn't know before. And I started improving my computer work, my knowledge, and basically all my operational skills in general had started to improve with Leading Senior Constable Johns and Sergeant Reilly.

Q. Did you still make mistakes operationally?

A. Absolutely.

Q. Were they brought to your attention, the mistakes?

A. By Senior Constable Johns and Sergeant Reilly.

Q. ... How did you respond when Sergeant Reilly or Leading Senior Constable Johns criticised you for the work?

A. I accepted what they said, and I said I would improve it. They said, "This is how you can improve it," and that's what I did.

Q. And in terms then of your overall competence as a police officer, what changed in the early part of this year?

A. I have basically improved my confidence and assertiveness, and everything else improved.

Q. And in terms of the other police officers, what changed?

A. A lot more confident. I could speak to other police officers, and I felt they accepted me, because they would have conversations with me. They basically before that, I was basically quiet, I was - stuck to myself. Basically when I spoke to people, a lot of the times they looked at me, "Why are you saying good morning." Well, when I went to this new team, everyone said, "Well, yep, how are you. Good day." And I felt like I could achieve more.

Q. And in achieving more, do you think that affected how the other police officers then interacted with you in turn?

A. Yes.

Q. And did you feel they had more confidence in you?

A. Yes.

Q. And in terms of your dealings with the public, initially at the first part of this year, you were still doing full operation at duties?

A. That is correct.

Q. How do you feel you changed in respect of dealing with the public?

A. Well, I had more confidence and knowledge of how to help them and assist them with the problems they had, and I was less and less was going to just supervisor for every single thing like I had previously. And basically when I was dealing with public, I could say, "I can answer this question, I will help you best I can," where previously I just looked blankly or stood there silently.

20 Leading Senior Constable Johns was Mr Alexander’s FTO from 30 December 2007 to 26 February 2008. She gave evidence regarding her observations of the applicant’s progress after he had been transferred to her team:

Q. And when he moved to your team, what did you observe in his, both his police work and his personal interactions?

A. His police work as far as paperwork and things like that within the station was at a reasonable level, and he was able to communicate with me and if he had problems doing that he would always come seek advice, so for his level of service I didn't think there was any real issues with that, it was more when we were out on the road dealing with members of the public or his communication skills even with other police, he tended to lack a lot of confidence and abilities in that regard and seemed to have difficulty, I guess, speaking to people to extract the information that we needed to, you know, undertake our particular job or report an incident or investigate an incident and, as I said, that was also in relation to other police, he had big difficulties communicating with other police, he just seemed to just lack a lot of confidence, yeah, just found it difficult to communicate because of his confidence issues.

Q. And did you find that changed over time?

A. Yeah, as I worked with him and as I think he got to know our team, feel more comfortable, his confidence improved at a steady pace throughout the whole time that I worked with him and even after I worked with him it still continued to increase.

Q. And from what you've described, Probationary Constable Alexander was under-confident?

A. Yes, definitely.

...

Q. All right; what you've described there of an under-confident probationary constable being willing to learn and other matters that you referred to, was that something that you found to be the case with Probationary Constable Alexander?

A. I found he was very, very enthusiastic in relation to being prepared to learn and improve his ability and listen to me, and seek guidance whenever he needed to, there was absolutely no problems with his enthusiasm and his willingness to learn.

Q. And were you aware when he came to the team or did you have discussions with him about the circumstances in October 2007?

A. Yes, I did.

Q. And were you, who made you aware of those circumstances?

A. When he came to me he was on a performance plan, so I sat down with, I think, the EDO sergeant--

Q. EDO, that's education development officer, EDO?

A. Yes.

Q. Yes?

A. And I think, might be Mr Johnstone that was the duty officer there, I think Mr Johnstone the head officer in our team, and we sat down and actually went through the issues that had arisen and the reason behind him being on a plan, so, yeah.

Q. So you were aware that there was an integrity issue arising from that incident?

A. Yes.

Q. From your observations of PC Alexander in 2008, did you have concerns about his integrity?

A. No.

Q. And specifically, you were aware that he lied to protect himself, is that right?

A. Yes.

Q. Did you see any conduct by him that would cause you to have concerns that he would lie to protect himself?

A. No.

Q. And if Mr Alexander was returned to the Police Force as a result of these proceedings, how would you feel about working with him?

A. I'd have no problems.

21 Leading Senior Constable Johns gave evidence of her experience with probationary constables who had failed one or more of the sessions required to be undertaken throughout the probationary period. Her evidence during examination in chief and cross-examination was that it was not unusual for probationary constables to fail a session on first attempt, pass on their second attempt and successfully continue in their police career. Mr Warren questioned Leading Senior Constable Johns in this respect:

Q. When you say it's not uncommon to spend a couple of years attempting to pass, could you be more specific on that, please; of probationary constables who've been under your care and instruction in the last three years, how many have failed to pass?

A. I can't remember how many I've had in the last three years. I can specifically think of at least, well, I think the two that I had out of the previous year, were our buddies, both were delayed, I think one failed one or more of the sessions, I know, more than once, the other one, I think, may have been delayed by complaints, I'm not sure whether they failed a session or not.

Q. You're unclear in your mind as to?

A. Just because I've had so many buddies, I'm just trying to figure out which ones did what.

Q. How do you come to the conclusion that it's not uncommon; what do you mean by common?

A. Well, obviously common is something that happens frequently.

Q. Yes?

A. Around the station, obviously you're aware that constables don't get their stripes on time, and that's because generally they've failed to complete an, or failed to pass a session, so regularly I notice that if there's a class of, say, eight people, there may be two people that don't get their stripes on time, something like that.

Q. And you can't tell the Commission, can you, how many people might fail twice?

A. No.

22 Senior Constable English gave evidence. He worked with Mr Alexander. His evidence included the following:

Q. In terms of the Probationary Constables that you have worked with, how would you describe where you would put Mr Alexander in that range?

A. I would put him in the same category as any other Probationary Constable that I have worked with. He is no better but no worse than any other Probationary Constable that I have worked with.

Q. In terms of the time you worked with him, you have indicated in your statement you found him to be very professional?

A. Yes he was.

Q. What did you mean by that?

A. In dealing with the general public he was always very professional, had good communication skills, he spoke sort of calmly and precisely to whoever he was talking to, he was able to deal with the information that was required for each job we were at and was able to record them properly in the COPS event.

...

Q. If Mr Alexander is successful in this reinstatement proceedings, would you be happy to work with him, knowing what you know about his background?

A. Very happy to work with him.

...

Q. What are your expectations in relation to Mr Alexander's conduct or integrity if you like in the future?

A. Well there is his conduct in the early part of the year and in doing all his station duties and he conducted himself in, I would say, admirable manner in terms of dealing with us and with the members of the general public. So I think he has made a very I would say amazing effort to better himself in regard to that.

23 Constable Bowling’s evidence was that:

The only issue I observed when working with Constable Ray Alexander was that his confidence was low and he was reluctant to make on the spot decisions. I believe that this problem can be fixed with experience in the field.

24 Sergeant Reilly was asked a number of questions about his experience with Mr Alexander:

Q. In terms of confidence, what was your observation of Probationary Constable Alexander when he joined your team at the end of last year?

A. I didn't know Ray, Constable Alexander, prior to him coming to the team, I had no dealings with him whatsoever. He came - I heard things about him and through the time I had been there, I never actually met him. He came to the team, I was basically under the impression that we were trying to, develop him, from getting him to a point where he wasn't doing very well and start to make him into a better police officer. And I know - we sat down initially when he first came to the team and we said to him - we laid down the ground rules with him how we wanted him to be. I noticed times when we were speaking just to each other and he appeared to be a bit nervous in the way he spoke, his voice was sort of, you could tell he was nervous, in the voice, his mouth was dry, that sort of stuff, he seemed to be very just generally nervous when speaking to myself when I was speaking to a supervisor at the time, that's how he came across to me.

Q. Did you do anything to address those issues with him?

A. What I did with him, I told him that if he has got any problems like so far as if he is unsure about a decision he has to make or a job or anything like that, if he is taking a job over the counter, confronted with a situation he was unsure what to do I said he had to come and see me, and I don't care if you have to see me a thousand times a day, you know, I am the station supervisor, he can come and see me and I would help him with whatever the situation was.

Q. Did he do that?

A. Yes he did.

Q. As time went by, did that have an impact on his confidence?

A. I believe so because he became, well, I believe a lot more confident in what he was doing. His improvement in terms of his confidence and his ability, I guess they went hand in hand I suppose, went up very significantly very noticeable.

Q. And in terms of him coming to you for assistance, was that something he had to do less and less as time went by?

A. I didn't really look at it like that. At the beginning I guess because that is what we told him to do, to always come to us. I guess he did at the beginning more so and as time went by and his experiences and confidence in his own ability and what he can and can't do, improved, then I guess it was probably a bit less but he always came to us when he had a situation, which is good, that is what we want him to do.

...

Q. In terms of the time that you worked with Mr Alexander, were there any integrity issues?

A. No.

Q. In terms of when you criticised him, did you have concerns about him lying to protect himself at all?

A. No because I told him at the beginning one of the first meetings that we had I said to Ray, I said to him, I basically told him in no uncertain terms if he lied to me then I would not have any hesitation of putting him on paper whatever the term is used if that was the case.

Q. And as part of what you observed with him when he was in your team, did you observe his interactions with other police officers as time went by?

A. Yes.

Q. What was your observations in that regard?

A. Before Ray came to the team there were a lot of - you hear people talking about the station in the muster room things like that. Not very positive comments about him. Negative comments about him. And the opinion at different times that different police held was that he was not highly regarded. But as time went by particularly when he was on restricted duties in the station I found that, to me, maybe because he was in the station a lot more, I never saw him have any dramas with people and I actually found people spoke very highly of him and found he was competent and they were glad to have him at the station working in the station.

Q. You understand Mr Alexander is attempting to get his job back in these proceedings?

A. Yes.

Q. How would you feel about that, about working with Mr Alexander?

A. Based on the time I saw him in my team I wouldn't have a problem with him. As I said when he came to the team we laid down the ground rules that there was to be no lies or anything like that and he has taken that on board what I believe and there wasn't any problems since then or no problems during that time.

25 In his statement tendered in the proceedings Sergeant Reilly said of Mr Alexander:

During the period I have known Ray, I have found him to be a very polite and astute individual. Since our initial meetings his ability and confidence has developed significantly. I have found that he is very accepting of advice from his peers and very willing to learn... I have seen Ray communicate with members of the community and he does this confidently and professionally and in the manner expected of him by the NSW Police Force Customer Service Policy and the Community. Ray now has the confidence to approach myself or any other supervisors [sic] for advice and assistance when required.

...

I know that he strongly desires to be an effective member of the NSW Police Force and I am of the opinion that if given the opportunity to continue his chosen profession, that he would do so in the manner expected of him.

26 Mr Warren questioned Sergeant Reilly in relation to his attitude towards dishonesty and integrity in the force:

Q. Now, you indicate that you spoke with him about lying. Why did you take that so seriously?

A. Because it is an important issue with the Police Department, integrity and truthfulness is what the police is about. It is the basis of the function of policing, in my view.

Q. And if a person lies to you, you have great difficulty trusting them again, don't you?

A. In most cases, depending on the circumstances as well.

Q. Well, you are not suggesting are you, that there are any times in the police force that lying could be excused?

A. You're right. I don't believe that the lying is the correct way to go about things. However, from what I understood about Ray's circumstances there were perhaps reasons why he didn't tell the truth in the first place.

Q. Let's go back a bit, I said to you there would be, I suggest to you, no occasion in the Police Force that justify telling a lie - what do you say to that?

A. I believe. Well, 99 percent of cases I believe that is the truth, you should always tell the truth. But I understand, like I said, I believe I know why he lied and it was in order to protect himself from being ridiculed further. That is why I believe he lied.

27 The applicant requested that SC Borg be made available for cross-examination and the respondent complied. SC Borg, of course, was the senior officer present on the night of the domestic incident on 2 October 2007 and the officer who expressed serious concern that Mr Alexander had failed to act in an appropriate manner. SC Borg expressed apprehension that her life could have been put in danger because of Mr Alexander's failure to act. SC Borg was asked the question that if Mr Alexander was to get his job back "would you personally be prepared to work with him?" The senior constable's answer was "Yes”.

Applicant’s case

28 The applicant’s case was founded on the principle that his dismissal was, in particular, ‘harsh’ in the circumstances. Ms P Lowson of counsel for the applicant contended that due to a natural lack of assertiveness and confidence, coupled with a team environment in his first year as probationary constable that was unconducive to fostering growth and improvement in these areas, Mr Alexander experienced difficulty fulfilling the duties of a police officer. This weakness often manifested itself when the applicant was required to handle urgent or important issues in dealing with the public. It was submitted that as a probationary constable in his first year of police work, the applicant should have had further opportunity to improve in these areas of weakness, with the assistance of peers and superiors, an opportunity not readily granted to him due to the team to which he was initially allocated.

29 Upon being allocated to a different team, Mr Alexander was able to seek and receive support from his superiors and thus begin to learn and grow in confidence, as every probationary constable should be allowed to do. Ms Lowson emphasised that this improvement in fulfilling work duties and in overall confidence as a person and police officer occurred throughout a period of time in which Mr Alexander was under investigation and fully aware of the real possibility that he may, in fact, be dismissed due to the incidents surrounding 2 October 2007. It was contended by the applicant that this evidenced a genuine and fervent desire to improve on his weaknesses in his position and fulfil his role as an effective and dutiful police officer. Given that the applicant had encountered some serious confidence and assertiveness issues, but had improved when fostered in a positive team dynamic, counsel submitted that he has proven that he was able to progress and mature in his position. The unwavering support from his peers, including SC Borg, was further evidence that the applicant was thriving in his work within a new team, and that his commitment to personal and professional development was apparent to his colleagues.

30 Ms Lowson submitted that the dishonest behaviour exhibited by the applicant was a one-off occurrence, and although displayed on four occasions, involved only the one issue. It was, therefore, not indicative of a pattern of dishonesty, and although the applicant’s untruthfulness was maintained for three weeks he frankly confessed to his dishonest statements and fully cooperated with internal investigations surrounding the incident and his behaviour. It was submitted that whilst this behaviour was in no way excusable and rightly subject to disciplinary action, the applicant’s contrition and regret, together with extensive positive character evidence, should outweigh the respondent’s grounds to dismiss him and compel this Commission to determine that his dismissal was harsh, unjust or unreasonable.

Respondent’s case

31 Counsel for the respondent, Mr R S Warren, argued that the behaviour of the applicant has fractured the employment relationship such that the respondent was subsequently unable to place any confidence or trust in the applicant. Referring to the NSW Police Code of Ethics, Mr Warren stressed the importance of the requirement for a police officer to act honestly and with integrity at all times. A failure to do so would result in a serious question about the suitability of an officer remaining in the Force, and depending on the seriousness of the conduct, render the officer unqualified to hold that position. Mr Warren sought to adduce evidence from all of the witnesses that supported this submission, including Mr Alexander. The respondent contended that the present case had resulted in a severing of the trust necessarily inherent in the employment relationship and, therefore, the dismissal was not harsh, unjust or unreasonable. The respondent emphasised the applicant’s dishonesty to four colleagues on four separate occasions, and submitted that Mr Alexander only confessed to the lies when he realised the inevitability of the truth emerging from further investigations.

32 In addition to the applicant’s dishonesty, Mr Warren sought to highlight the seriousness of Mr Alexander’s inaction in failing to challenge or attempting to stop an unknown male entering and exiting the house at Ms T’s residence. The respondent contended that Mr Alexander would have been well aware that there was an AVO pertaining to the alleged offender, and that it was seriously neglectful to allow the unknown man to leave unquestioned and unchallenged.

33 The respondent further contended that Mr Alexander’s inability to successfully complete sessions 3 and 4 on his first attempt was additional proof of his unsuitability to serve as a police officer. Mr Warren suggested that the applicant’s poor academic performance throughout sessions 3 and 4, programmes designed to assess a probationary constable’s practical understanding of the policing task, was an indicator that the applicant was lacking important attributes necessary for the position.

Consideration

34 The present application is not easy to resolve. Both counsel have put cogent cases in support of their respective positions. Mr Warren relied heavily on the fact that the applicant failed in a basic policing task thereby placing persons in danger, performed poorly academically, lied to protect himself, maintained the lie and thereby breached one of the fundamental tenets of the Police Code of Conduct and Ethics to "act honestly, truthfully and with integrity in all of your dealings with other employees and the public”. All of this is undoubtedly correct.

35 Ms Lowson, on the other hand, submitted that the Commission needed to have regard to the applicant's natural reticence, the absence of guidance and support from his original FTOs in overcoming his lack of assertiveness and confidence, his real fear of not succeeding as a police officer because he had "messed up or screwed up" and the barrier that represented to him telling the truth about what occurred on 2 October 2007, his marked improvement in confidence and general performance under new FTOs after December 2007, his genuine expression of remorse and contrition and the evidence of support for the applicant amongst fellow officers, including their willingness to continue to work with him if he were to be reinstated.

36 The Commission's task is to determine whether the dismissal of Mr Alexander was harsh, unjust or unreasonable. The determination of that question involves mixed issues of fact and law, rather than the exercise of discretion per se: see Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [4], citing Hollingsworth v Commissioner of Police (1999) 47 NSWLR 151 at 181-182 and Port Macquarie Golf Club Limited v Stead and Another (1996) 64 IR 53 at 59.

37 In considering the statutory test of harsh, unjust or unreasonable, reference may be made to the observations of the High Court (McHugh and Gummow JJ) in Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410, where it was observed at 465 ([128]):

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

38 Their Honours went on to observe at 467 ([132]-[133]):

In Bostik (Australia) Pty Ltd v Gorgevski [No 1] [1992] FCA 209; (1992) 36 FCR 20 at 28, a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:

"These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct."

The above propositions should be accepted as applicable to the present appeals. However, it should be emphasised that the present task is to construe the Award and that nothing now said necessarily determines the meaning of the phrase "harsh, unjust or unreasonable" in any other setting.

See also Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 182-183.

39 Reference should also be made to what Watson J said in Metropolitan Meat Industry Board v Australasian Meat Industry Employees’ Union, New South Wales Branch [1973] AR 231 at 233. His Honour articulated what has become a fundamental guiding principle that 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 and to intervene where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence:

I fail to see why in applying this test ["was the termination ... so unfair as to warrant interference by the Commission?"] to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J., in Loty’s Case ([1971] AR 95 at p 99), the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances – even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer’s representative was faced with a situation which had developed to a stage where he had no other alternative.

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.

40 It must also not be overlooked that the Commission is required under the statute to take certain matters into account in determining an applicant's claim for relief. Section 88 provides:

88 Matters to be considered in determining a claim

In determining the applicant’s claim, the Commission may, if appropriate, take into account:

(a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

(b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

(c) whether a warning of unsatisfactory performance was given before the dismissal, and

(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

(e) whether or not the applicant requested reinstatement or re-employment with the employer, and

(f) such other matters as the Commission considers relevant.

41 If the Commission decides the dismissal was harsh, unreasonable or unjust, it is then required to consider what is an appropriate remedy, noting that the primary remedy under s 89 of the Industrial Relations Act for an unfair dismissal is reinstatement, together with other relief specified in the section for continuity of employment and for compensation for remuneration lost before the reinstatement was ordered: Burge v NSW BHP Steel Pty Ltd [34]; Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211; (2003) 128 IR 37 at [125]; Plummer v Stannard Bros Launch Service Pty Limited [2005] NSWIRComm 301 at [14].

42 The question of what remedy to apply is a matter for the Commission's discretion: Retail Traders Association NSW v Shop, Distributive and Allied Employees Association of NSW (1990) 36 IR 38 at 52 per Cahill V-P. However, in its consideration of reinstatement as a remedy, the Commission is required to consider whether to do so would be impracticable: Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98 at [57].

43 It will be recalled that in the order dismissing Mr Alexander, Assistant Commissioner Corboy stated:

Integrity is a core value of the NSW Police Force, and I believe that the highest standards of personal integrity and truthfulness are critical for a person to be a police officer. I consider that your conduct has been entirely inconsistent with the standards expected of an officer of the NSW Police Force by both the Commissioner of Police and the NSW community.

In these circumstances, I have decided that your untruthfulness, as a probationer, demonstrates a lack of the standards of integrity expected of a police officer, and your unsuitability to be confirmed as a constable of police. On this basis alone, I consider that dismissal would be appropriate. The other matters raised in this Order reinforce my decision.

44 It is apparent from what was said by Mr Corboy that it was Mr Alexander's untruthfulness, demonstrating as it did a lack of personal integrity - a critical characteristic for a police officer - that lay at the heart of the reason for Mr Alexander's dismissal. In this respect, I note that s 7 of the Police Act contains a statement of values of members of the Police Force, which places integrity "above all": s 7(a).

45 Mr Alexander was well aware of the obligations upon him regarding the high standards of integrity he was required to maintain. Did his failure to meet those standards justify his dismissal or was his dismissal harsh, unreasonable or unjust in all of the circumstances?

46 In answering that question, one has to judge a number of competing considerations. First, it is important for the Police Force to maintain the highest standard of integrity amongst its officers; integrity is a supreme requirement in a police officer. It was very clear from Mr Warren's cross-examination of witnesses that all of the police officers called recognised the importance of integrity, in particular the necessity of officers dealing honestly and truthfully with each other and with the public. The Force's credibility in the community as a body charged with the maintenance of law and order depends upon the community knowing that police officers are persons of integrity; that they will be honest and truthful in their dealings with each other and with the public. The need to maintain a high standard of integrity is a powerful consideration in favour of dismissal where a probationary constable fails to meet the standard. Further, as Walton J, Vice President observed in Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [249]:

The power of the Commission to order the reinstatement of an employee should always be exercised with caution (see Slonim v Fellows [1984] HCA 51; (1984) 154 CLR 505 at 515), particularly where the case involves a public position such as that of a police officer.

47 The Commissioner of Police is entitled to expect that a probationary constable, who is, after all, 'on trial' as to his or her suitability, will observe the Police Code of Conduct and Ethics and the values of the Police Force and, if the constable does not, to give serious consideration to whether the necessary degree of trust and confidence has been so undermined as to justify separation.

48 However, it will not automatically follow that every failure to achieve the highest standard of integrity, regardless of its level of gravity, will result in termination of the employment of a probationary constable. The probationary constable's conditional offer of employment acknowledges this to be the case by providing a discretion to the employer as to whether to dismiss. Moreover, whilst the Police Act emphasises the importance of maintaining a Police Force that has integrity the Industrial Relations Act also gives this Commission the power to remedy any dismissal of a probationary police officer that is harsh, unjust or unreasonable.

49 If I were simply considering whether Mr Alexander's dismissal was justified because he lied to avoid censure and ridicule and there were no other considerations to be taken into account in his favour, it would be difficult to avoid the conclusion that the dismissal was justified. At the point and in the circumstances that Mr Alexander first lied to SC Borg, his career was at its lowest ebb. No reasonable person could have much sympathy for Mr Alexander in failing to protect himself, his partner and the occupants of the house and then having lied about it and continued to lie about it.

50 However, other considerations present themselves. Mr Alexander failed to get off to a good start at Macquarie Fields. He appears to have been one of those individuals who, because of his lack of confidence and assertiveness, became something of a target or butt of criticism within the Macquarie Fields Police Station. Equally, however, when Mr Alexander's treatment by his second set of FTOs is compared with the first, it would appear that his initial FTOs did not put in the effort or did not possess the insight to adequately recognise Mr Alexander's shortcomings and provide him with the necessary assistance to overcome those deficiencies. The role of an FTO was described by Leading Senior Constable Johns:

[I]t involves working almost constantly with a probation constable either in their first six weeks or their first 12 weeks, every shift, and obviously teaching them how to perform in the role of a police officer, monitoring how well they work, giving them guidance, just teaching them, I guess, how to be a policeman, really.

51 The role of the FTO is to monitor, guide and teach. It would be inconsistent with that role to allow a probationary constable's confidence to be undermined by being "yelled at in public or front of other officers in the room" and told he had "messed up or screwed up... with other people around”.

52 It is open to find on the evidence that Mr Alexander was not naturally assertive. He was subjected to such treatment that he lost confidence in his ability to be a police officer and he was concerned that he would not complete his probationary period. Mr Alexander felt he did not belong; he was insecure and anxious.

53 This was Mr Alexander's state of mind on 2 October 2007. Because of his insecurity, anxiety and natural lack of assertiveness he failed to challenge Mr L and then lied about seeing Mr L. He maintained the lie because he did not wish to be seen to have "messed up" or screwed up" again and become the subject of further censure and ridicule.

54 Although the seriousness of Mr Alexander's transgression was mitigated because of his state of anxiety and insecurity, which I consider was contributed to by the failure to adequately monitor, guide and teach him in his initial probationary period, I would be reluctant, on this basis alone, to arrive at the conclusion that his dismissal was harsh, unreasonable or unjust. However, in applying the statutory test there are other considerations to be taken into account, they being that:

§ Mr Alexander was in his probation period and he was very keen to become a police officer,

§ Mr Alexander was relatively young with limited work experience when he entered the Police Force,

§ under proper tutelage Mr Alexander's performance as a police officer improved, he renewed his commitment and his confidence increased. He has demonstrated an ability to complete his probation and shows promise of becoming a successful police officer,

§ between December 2007 and March 2008 Mr Alexander performed full operational duties; after moving to restricted duties he was entrusted with his appointments and worked relatively unsupervised on a number of occasions; he was not suspended from duties,

§ it was out of character for Mr Alexander to have lied in the way he did,

§ Mr Alexander recognised the gravity of his conduct and was genuinely remorseful,

§ there was no evidence that Mr Alexander's return to work presented any difficulty for the Police Force in general, or for any individuals at the workplace, and

§ most significantly, police officers up to the rank of sergeant and including SC Borg (who was the officer who may have been placed at risk by Mr Alexander's failure to challenge Mr L), indicated their preparedness to work with him despite knowing Mr Alexander had lied. Whilst I would accord more weight to the Police Commissioner's view about the implications of a lack of integrity for his Force than how individual officers might feel towards an officer who lied, the fact that these experienced officers have volunteered to give evidence in the applicant's favour is a significant consideration given it is they who would have to work with Mr Alexander on a day to day basis if he were to be reinstated.

55 I regard it as understandable that the respondent dismissed Mr Alexander; the Commissioner was concerned to uphold the integrity of the Police Force. This is not one of those cases where there was an obvious or blatant injustice caused by the dismissal. However, given all of the circumstances, I consider that the penalty was too severe; that it was unreasonable not to have given Mr Alexander another chance to realise his goal of becoming a confirmed police officer.

56 Mr Warren referred to a decision of Grayson DP in Police Association of New South Wales (on behalf of Myers) v Commissioner of Police [2005] NSWIRComm 148, where a probationary constable was dismissed on the grounds of using excessive speed in a police vehicle and causing damage to the vehicle, and his subsequent dishonest behaviour surrounding the incident and issues of leave. That decision related to a probationary constable who lied on several occasions regarding his handling of a police vehicle and possible reasons for damage to the vehicle. His account of the incident substantially varied at different points throughout the investigation, and Grayson DP found (at [14]) that Mr Myers’ actions were highly suggestive of a “lack of candour and it is hardly surprising that those of the applicant’s superiors conducting the investigation into the damage to the police vehicle ultimately chose to view his contribution to the investigation as less than completely truthful”. The case further involved untruthfulness regarding leave that Mr Myers had applied for whilst employed by the Police Force and Grayson DP again questioned the veracity of the applicant’s evidence regarding his reasons for requesting leave, the genuineness of his stated illness and incapacity for work. Grayson DP found that the Commission’s intervention was unwarranted and agreed with the respondent that there were ‘real doubts about [Mr Myers'] integrity and fitness to continue as a serving police officer’.

57 Whilst the case of Myers involved a dismissal for, inter alia, untruthfulness, it is distinguishable from the present proceedings. Mr Myers was found to have been untruthful in relation to two separate incidents, there was no evidence of remorse or contrition and there was no evidence that Mr Myers had the strong support of fellow officers, as is the case with Mr Alexander. In the case of Myers, the learned Deputy President made no mention of any redeeming features of the applicant.

58 The applicant gave evidence that he had encountered some academic setbacks during his initial studies and throughout the practicum component. Mr Warren placed some reliance on the applicant’s failures in this respect, as further indicating the applicant’s unsuitability for a role in the Police Force. Leading Senior Constable Johns’ evidence was that it was not unusual for probationary constables to fail one or more of the sessions throughout their probationary period. Throughout her time as an FTO it was Ms Johns' experience that where such officers showed a willingness to improve and respond to advice in a positive environment they would often successfully complete the training programme. Leading Senior Constable Johns was convinced that Mr Alexander was such a student, as did all of the witnesses who gave evidence in the proceedings. I accept that evidence.

59 I find that the dismissal of Mr Alexander was unreasonable. Further, as I have already found, there was no evidence that Mr Alexander's return to work would present any difficulty for the Police Force in general or for any individuals at the workplace. It follows that the primary remedy of reinstatement should apply. Accordingly, I order that:

(1) Mr Alexander be reinstated to his position as a probationary constable at Macquarie Fields Police Station within seven days of this order.

(2) Mr Alexander is to have continuity of service with the Police Force.

(3) No payment shall be made to Mr Alexander for the period since the date of his dismissal to the date of his reinstatement.

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LAST UPDATED:
6 February 2009