Industrial Relations Commission New South Wales

• Medium Neutral Citation: McDiarmid v Commissioner of Police [2012] NSWIRComm 100
• Hearing dates: 9, 10, 17 August 2012
• Decision date: 06 September 2012
• Jurisdiction: Industrial Relations Commission
• Before: Boland J, President

Decision

(1) The Order made on 14 May 2012 pursuant to s 173(2) of the Police Act 1990 in respect of Sergeant Michael McDiarmid is revoked.

(2) The Interim Management Plan imposed on Sergeant McDiarmid dated 13 March 2012 shall constitute a Conduct Management Plan including demotion from Sergeant to Senior Constable Level 6.

(3) The Conduct Management Plan referred to in Order (2) hereof shall apply from the date of this decision for a period of six months.

(4) Upon satisfactory completion of the Conduct Management Plan by Senior Constable McDiarmid he shall be reinstated to the rank of Sergeant.

(5) In the event of any dispute regarding satisfactory completion of the Conduct Management Plan liberty is given to either party to refer the dispute to the Commission on reasonable notice.

• Catchwords: POLICE - Application by Sergeant of Police for review of an order made by the Commissioner of Police under s 173(2)(a) of the Police Act 1990 - Whether order of Commissioner was beyond power because conduct of police officer did not constitute misconduct - Whether penalty of demotion was harsh, unjust or unreasonable - Whether the applicant, through his communications with junior officers, demonstrated a lack of courtesy and respect for colleagues and a consequent failure to meet the standard of behaviour required of a Sergeant acting in a supervisory capacity - Whether the applicant had not learned from earlier admonitions regarding his conduct - Whether the applicant demonstrated a lack of understanding of his leadership role - Misconduct found to have occurred - Demotion not harsh, unjust or unreasonable - Applicant to be reinstated to Sergeant after six months subject to satisfactory completion of Conduct Management Plan
• Legislation Cited: Interpretation Act 1987; Police Act 1990; Summary Offences Act 1988
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; Commissioner of Police v Collins [2008] NSWIRComm 162; (2008) 180 IR 191; Commissioner of Police v Skelly [2010] NSWIRComm 18; (2010) 192 IR 195; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Hornsby Shire Council v Hunt [2002] NSWIRComm 158; (2002) 115 IR 461; Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159; North v Television Corporation Ltd (1976) 11 ALR 599; Pillai v Messiter (No 2) (1989) 16 NSWLR 197; Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Reid-Frost v Commissioner of Police [2010] NSWIRComm 2; (2010) 192 IR 363; Starr v Commissioner of Police [2001] NSWIRComm 226; Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420; Zoological Parks Board of New South Wales v Australian Workers' Union, New South Wales [2004] NSWIRComm 85; (2004) 135 IR 56
• Category: Principal judgment
• Parties: Michael Colin McDiarmid (Applicant); Commissioner of Police (Respondent)
• Representation: Mr J Trew QC (Applicant); Ms E Raper of counsel (Respondent); Toomey Pegg, Lawyers (Applicant); Bartier Perry, Lawyers (Respondent)
• File Number(s): IRC 626 of 2012

DECISION

1 Sergeant Michael Colin McDiarmid ("the applicant"), a member of the NSW Police Force, has sought a review of a reviewable action Order ("the Order") made under s 173(2)(a) of the Police Act 1990 by the Commissioner of Police ("the respondent"). The Order demotes the applicant from the rank of Sergeant to the rank of Senior Constable Level 6, one rank lower. The Order does not take effect until the applicant's application is finally determined: s 173(8)(b).

Review application

2 In seeking a review of the Order the applicant sought the following orders:

(1) An order revoking the Order;

(2) Compensation as a consequence of the making of the Order;

(3) Further or other appropriate Orders.

3 The grounds relied upon by the applicant were that:

(1) The Order is beyond power;

(2) Alternatively, the Order is harsh, unreasonable or unjust.

Background

4 The applicant is 32 years old. He was attested (successfully completed the Police Academy course) in May 2000. After completing 12 months as a Probationary Constable he was appointed a Constable in May 2001. The applicant was appointed Senior Constable in May 2005 and a Sergeant on 10 October 2009.

Inappropriate use of Chat System (LMI 1005649)

5 On 1 November 2010, the Commander of the Redfern Local Area Command, Superintendent Luke Freudenstein, received notification of a complaint about the applicant's use of the NSW Police Force instant messaging system (known as the "Chat System") in the period 5 August 2010 to 26 January 2011. This complaint was identified as "LMI 1005649". On 4 February 2011, in relation to the complaint, the applicant was directed to attend an interview regarding "a non-criminal investigation into an allegation of misuse of the NSW Police Email & Internet Policy and Breach of the Code of Conduct."

6 In evidence was a record of the communications the applicant had engaged in using the Chat System. The exchanges were with female police officers who was the partner or who were friends or ex-girlfriends of the applicant, and included sexually explicit language, inappropriate language (for example, regular use of the word "fuck") and comments that the respondent contended were disrespectful of other persons, including police colleagues.

7 The Investigator's Report found that the applicant:

[F]ailed to comply with the NSWPF Corporate "Email and Internet Policy" specifically the 'Chat' application between the 5/8/2010 & 26/1/2011. The subject officer consistently sent messages that were offensive in nature, including sexually explicit communications, messages with sexual and relationship connotations, and inappropriate language specifically the regular use of the word "fuck" in communications.

[F]ailed to comply with the NSWPF Corporate "Use of Resources Policy" specifically staff time using the 'Chat' application on a police owned communication and information device, specifically the email system. Between the 5/8/2010 to 26/1/2011 an audit was undertaken of the said officer that revealed excessive and regular use of the police owned system.

8 The Report also stated:

The content of the audit have demonstrated an attitude towards duties which falls well short of standards required and acceptable behaviour of a Sergeant of Police within the New South Wales Police Force. Failure to accept responsibility for inappropriate use of the system given the weight of evidence contributes to concerns regarding his supervisory capabilities.

9 On 1 March 2011, the Region Commander reprimanded the applicant in relation to the use of the Chat System. The applicant was issued with a Region Commander's Warning Notice in which the Commander indicated he was satisfied the Investigator's findings were correct and that, therefore, the applicant had breached the Police Act, the NSW Police Code of Conduct and Ethics and Statement of Values. The Warning Notice stated:

I consider that your conduct has fallen short of the acceptable standards expected by the NSW community and the NSW Police Force. You have failed to behave in a way that upholds the values of the NSW Police Force. Any future failures will be taken extremely seriously. You should be left in absolutely no doubt that you are being given an opportunity to demonstrate that you have the required level of conduct to continue to be an officer of the NSW Police Force.

10 The applicant was placed under a Conduct Management Plan dated 7 April 2011, which stated that it operated from 1 March 2011 for 12 months (reducible to 6 months for good behaviour).

11 In his evidence, the applicant said he believed, wrongly, that communications on the Chat System were private and were not subject to review or audit by the respondent. He said immediately after that interview on 4 February 2011 he de-activated the Chat System on his computer and had not used that system since that date.

12 The applicant said he did not become aware of the Investigator's Report until 23 November 2011 when he received the Investigator's Report into a further matter identified as "LMI 1103491", which I shall come to shortly. The applicant said he was concerned the Report did not fairly analyse the chats about which complaint was made.

13 In his evidence the applicant explained his practice regarding the use of the Chat System:

At the beginning of each shift, I logged on to my computer and read my emails. I could also see who else was online. If they were friends or people on my contact list there would be an indication on the screen. If I wished, I could then send them a message. I would then minimise the message and it would appear in summary form at the foot of my screen. Its presence did not interfere with my work in relation to the information or messages appearing on the screen. I would be alerted if there was any response which I could read and then respond to if I wished. Although the Chat System was active and on as long as the memo system was on and active it was only used when I read it or responded to a message.

14 The applicant said he did a calculation of the time spent on the Chat System during the audit period and said it was approximately two minutes per shift.

15 The applicant referred to the complaint regarding the use of inappropriate language, specifically the word "fuck" in communications. He said that:

When Police Officers are together the language they use when speaking to one another is usually uninhibited. Police Officers (male and female) of all ranks regularly include in their exchanges expressions such as "fuck", "fuckwit", "dickhead", "bullshit" and "shit" and sometimes even stronger language.

16 The applicant referred to another complaint about the chats audited including sexually explicit communications and messages with sexual and relationship connotations. In this respect, the applicant said:

Both parties to those communications engaged in the communications concerned. Neither expressed any offence at the exchange. Each of the persons with whom I had the communications were long term friends and it was not uncommon for us to engage in such exchanges of which I treated as banter.

None of the persons with whom I was communicating on the Police Chat System the subject of the complaint against me was either interviewed or disciplined. They were all Police Officers and their communications with me were over the Police Chat System.

17 In defending his conduct, the applicant said it was not his intention to excuse his conduct, but to explain the circumstances. Further:

[A]t the time of the communications I believed that they were private and would remain private. At various places within my response to this issue ... I expressed regret and contrition for communicating in that way ... over the internet. I also decided never to communicate again over the Police Chat System and disabled the facility on my work computer before I read the [Conduct Management] Plan and saw that it contained instructions to do so.

18 The applicant also made the following points in his evidence:

In relation to the communications on the Police Internet Chat system, for which I was disciplined, all of the persons with whom I had been communicating with, with one exception, were long term friends. One of them, Sally Penman, I had only known as a friend since we worked together at Redfern LAC, and in her case no complaint was made about my communications with her. I have always expressed regret about the content of the communications with respect to which I was disciplined and have taken steps to ensure they can never happen again. The persons with whom those communications were made, were I believe, over 25 years of age, and mainly in their 30's.

All of those persons were willing participants in the conversations, none has complained and none has been disciplined. With the exception of Sally Penman, none has worked at Redfern LAC. Although I had worked with some of them at other LAC's, I was not a Sergeant at the time and we have remained friends.

The communications with two of the persons about whom particular complaint was made in the chat system disciplinary incident were Amy Nilon and Gabrielle Drummond. Amy Nilon, who was about 32 years of age at the time, and I had previously been in a relationship for several years. Gabrielle Drummond, about 39 at the time, was a long term friend with whom I regularly socialised outside work.

Incident involving Constable Cole (LMI 1102728)

19 On 16 June 2011, an incident occurred in the muster room (which is both a work area and used as a common room) at the Redfern LAC with several other police officers being present, including the applicant. The incident concerned what were allegedly inappropriate comments about Constable Shaun Cole. Constable Cole was not present but he was advised of what occurred by another officer who was there. Constable Cole subsequently complained about what was said.

20 The officers in the muster room, including officers junior in rank to the applicant, were discussing certain work practices of Constable Cole including that Constable Cole had issued an infringement notice at a service station to a person for leaving an unsecured vehicle whilst paying for fuel.

21 The applicant described what occurred:

Someone said, "Did you hear what Shaun (Cole) did?" someone else said "What?" Although I cannot remember exactly what words he used, the first person reported that Constable Cole had written a ticket to a person at a petrol station who had left his car unlocked while he went into pay. A number of people made comments such as, "Are you serious?" and other expressions of surprise. I reacted in a similar way and said, "That's fucked".

22 Apparently, Leading Senior Constable Scott Burtenshaw overheard the conversation and allegedly said, "Yeah, Shaun Cole is a fuckwit". Another officer, Constable Matthew Wallace said something similar to "Shaun Cole is a fuckwit" or "I fucking hate Shaun Cole".

23 On 17 June 2011, Constable Cole complained to the Commander Redfern LAC that two other officers and the applicant had engaged in unprofessional conduct alleging that it was "harassing and bullying conduct towards" him.

24 In his defence the applicant stated:

The muster room is the place where Police Officers usually are when they are not on patrol. It is usually not accessible to the public. It is also common for police officers including Senior Constables and Sergeants to have their meals in that room and gather together before and after shifts and during work breaks. Part of the general conversation that naturally occurs when police officers are together in the muster room includes "war stories" concerning incidents that have occurred during work whether good, bad, funny, heroic, stupid or even lazy. It is part of the ordinary conversation between Police Officers. They often work under pressure and in dangerous situations. The uninhibited language used in exchanges between Police Officers ... occurs when they engage in discussions in the muster room.

... I did not regard what was said in the circumstances in which it occurred as offensive nor did I then consider that it was something in relation to which I should intervene and stop further discussion. However, in my Directed Police Complaint Interview on 28 June 2011 in relation to this incident, I said that I believed that I should have kept my reaction to myself.

25 The complaint was resolved by the applicant being required to meet with Superintendent Freudenstein on 3 August 2011. At that interview, Superintendent Freudenstein said he told the applicant that it was unacceptable of him to have made derogatory comments about another officer in an open forum. The Superintendent said he also told the applicant that he was required to lead by example and be a role model for junior officers. Further, that if there were issues about the performance of Constable Cole the applicant, or another Supervisor should address the issue with the officer. As a consequence of this incident the applicant was told that his Conduct Management Plan, which operated from 1 March 2011, would run the full 12 months.

26 The applicant took issue with Superintendent Freudenstein's recollection of what was said by the Superintendent at the interview. The applicant said the advice he received was that if he was talking about actions of other officers, whether being the instigator of the conversation or one of the people listening, to make sure the conversations were in private and not able to be heard.

Incident involving Constable Lodge (LMI 1103491)

27 The incident that triggered the process leading to the Commissioner's decision to make the Order demoting the applicant involved further communications by the applicant with a serving police officer, junior in rank to the applicant, regarding the conduct of Constable Jessica Lodge. On this occasion, however, the communications were not made over police communication systems, but rather on the social media website, Facebook, outside normal work hours.

28 On 16 June 2011, a security guard caught Constable Lodge urinating on steps at the War Memorial in Hyde Park late at night, off duty. At 4.45 pm on 17 June 2011 the Police Force issued a Media Release announcing that an off-duty female police officer (no name) would face court after committing an offensive act on the War Memorial. Newspaper articles reporting the incident were also published on 17 June 2011, but did not name the officer. The evidence included comments dated 17 June 2011 downloaded from Facebook regarding the incident. Constable Lodge was not named.

29 Constable Lodge was charged under s 8(3) of the Summary Offences Act 1988 with "Commit offensive or indecent act in or on war memorial". On 21 July 2011, Constable Lodge pleaded guilty and was found guilty, but without proceeding to conviction and was directed to enter into a good behaviour bond.

30 The applicant's evidence was that not long after he commenced his shift (at 6.00 am) on 17 June 2011 he was told by other police officers on duty that a police officer from their region had been charged after urinating on the War Memorial. He said he checked the news sites on his mobile phone to see if there was any report of the incident and found a report. No one mentioned the name of the person involved. At that time, the applicant said he did not know the identity of the officer.

31 Shortly after, the applicant heard a news announcement on the radio that a female police officer had been charged after urinating on the War Memorial. She was not named, he said. At about midday, the applicant said more than one officer told him that the police officer charged was Constable Lodge. She was stationed at Redfern LAC. During the afternoon, the applicant said police officers reported for duty who had been on duty the night before. He said those already on duty had been talking about the charge against Constable Lodge and the police officers who reported for duty during the afternoon joined in the conversation. The applicant stated:

Before I left duty that evening the television in the supervisor's office was on showing the news. There were present in the supervisor's office about 10 officers, including those who were on dayshift and the oncoming nightshift. They included Inspector Roptell, other Sergeants, Senior Constables and myself. I do not remember whether there were any constables in the office. ... One or more of the persons present said, "You wouldn't pick Jess as someone to do that", "She will be lucky to keep her job". Other remarks to a similar effect were made about her. When I left the station to go home I noticed that there were constables watching the same news program on the television at the front office.

32 The applicant said that after going home he logged on to his computer at about 7:30pm and noticed that a friend of his, Probationary Constable Rebecca Walsh, also stationed at Redfern LAC, was logged on to Facebook. He said he knew that she was not working on shift and that she could not access Facebook from a computer at work. The applicant said he had a private Facebook discussion with Constable Walsh "via a portal accessible only by the persons communicating with one another." The discussion centred on the War Memorial incident and the identity of who the offending officer might have been. Constable Lodge was not named in the discussion but the applicant later admitted that what he had said was sufficient for Constable Walsh to identify the offender as Constable Lodge.

33 Constable Lodge returned to work on 19 June 2011. She ascertained that Constable Walsh had rung and messaged a number of people on 17 June and informed them of what had occurred in relation to the War Memorial incident. Constable Walsh informed Constable Lodge that the applicant had informed her (Constable Walsh) about the incident. On 25 July 2011, Constable Lodge submitted a report regarding the matter. Constable Lodge said she was distressed and upset and felt that the applicant and Constable Walsh had "exploited the situation and took it upon themselves to make me the centre of office gossip". She said "I am aware that my work colleagues would have found out eventually, but it was quite upsetting to be confronted with the gossip so quickly after the event".

34 Inspector Jeff Dean investigated the matter. He sought a report from Probationary Constable Daniel Cole who stated that Constable Walsh had informed him at his home on Friday, 17 June 2011 about the Facebook chat between Constable Walsh and the applicant. Constable Walsh was asked about the chat and consequently downloaded a copy of it for the Investigator. The relevant excerpt is set out below. "He said" is a reference to the applicant. "She said/I said" is a reference to Constable Walsh:

He said, "Was there a bit of drink last night"

She Said, "Good effort, was a great night"

He said, "Anyone do something really stupid?"

I said, "No not really"

He said, "Oh ok"

I said, "Ha ha sorry no goss"

He said, "No goss...turn the news on..."

I said, "I cant be bothered to turn the news on just tell me instead"

He said, "Off duty female cop from the CMR pees on war memorial"

I said, "WTF, what kind of trash does that"

He said, "Think of who you were out with"

I said, "Huh"

He said, "I'm sure you can figure it out Bec"

I said, "No way, explain"

He said, "Yeah, its on the news website"

I said, "That doesn't have a name"

He said, "No it doesn't"

I said, "What more info do you have that your not saying"

He said, "Ha ha, well that ruins the guess who game"

I said, "I am not playing guess who cause I prob don't even know who your talking about"

He said, "Ah, that's no fun then. Though I suppose it is not funny. I'll leave it at that"

I said, "Ha ha, yeah the act itself not funny at all, that's just disgraceful and trashy. How could someone do that"

He said, "Don't know, if she's not suspended you can ask her at work"

I said, "Your not joking are you"

He said, "Nope"

I said, "No way"

He said, "No way what exactly"

He said, "I can't believe you don't know. It's a girl from your drink last night. Anyway I better drop it"

I said, "Well I'm not stupid. I know what your leading towards. I haven't heard anything since this convo and just don't want to believe it"

He said, "Oh, so you can guess who"

I said, "Well the guess part yeah considering there wasn't that many females out. But I find it very hard to believe"

He said, "Yeah, who were the girls"

I said, "Only me, Trudie, Parker and Lodge"

He said, "Well I think it wasn't you. And you can safely count out Trudie"

I said, "But what makes you think it was any of us"

He said, "I don't just think I know"

I said, "Did you work today"

He said, "You haven't realised yet that the cops is a massive rumour mill"

I said, "I'm aware of that. Just still find it hard to believe. So that would explain why both you and Sewelly asked me if anyone got into trouble"

He said, "Yep"

I said, "Are you 100% not lying to me cause that's just fucked"

He said, "I'm 100% not lying"

I said, "Fuck"

He said, "Yeah, I'd say they will be lucky to survive especially if it gathers momentum in the media"

I said, "That's so fucked"

I said, "So when did you start to find out"

He said, "Information started seeping through this arvo. Then some guess work. The guesswork confirmed"

I said, "How confirmed"

He said, "Those that knew. A 'recently confirmed Constable'. You can't do anything in the cops without everyone finding out"

I said, "Could be a recently confirmed Constable from another LAC"

He said, "Oh no, we knew it was Redfern"

I said, "How do you know it was Redfern"

He said, "Their Duty Officer called our Duty Officer. Reports go through to the region Commander and probably the Commish. That's a lot of assistants that find out stuff. A lot of gossip around coffee cups. Then people who know people"

I said, "Oh okay, just curious. What happens now"

He said, "I closed the article, but its like the 5th of August or something that she goes to court"

35 The applicant was the subject of a Directed Police Complaint Interview on 5 September 2011 regarding the Facebook chat with Constable Walsh. On 23 November 2011, the applicant received the following copies of various documents under cover of a three-page document giving notice of possible further action under the Police Act and providing the opportunity to respond (the applicant was not provided with the papers in respect of LMI 1102728 (Constable Shaun Cole incident), purportedly so as to protect the identity of the complainant and the source of information):

(1) With respect to LMI 1005649 (use of Police Chat System):

Evidence based in the investigator's report 9 February 2011;

Record of police complaint interview Sergeant McDiarmid 4 February 2011;

Record of use of the chat communication system.

(2) With respect to LMI 1103491 (Lodge Incident):

Resolution outcome report 7 September 2011;

Record of police complaint interview Sergeant McDiarmid 5 September 2011;

Record of police complaint interview Probationary Constable Walsh 5 September 2011;

Report of Constable Daniel Cole 22 August 2011.

36 On 24 November 2011, the applicant sent an email to the Commander's Executive Officer, Ms Lee-Anne Ferguson, with a copy to Superintendent Freudenstein, regarding the absence of papers concerning Constable Shaun Cole's complaint. He was advised by return email that only LMI 1005649 and LMI 1103491 were being referred to the Internal Review Panel ("IRP").

37 Sergeant McDiarmid responded to the material on 14 December 2011. The response included several character references from police officers and other persons.

38 It was not until three months later, on 13 March 2012, that the applicant met with A/Superintendent McCusker and received notification of an Interim Management Plan in respect of LMI 1103491. The applicant's evidence regarding the conversation was in the following terms:

I had the following conversation with A/Superintendent Leanne McCusker:

McCusker:"The IRP [Internal Review Panel] met on 8 March and decided on your punishment. You are going to be demoted to Senior Constable but it will not be taking effect until after any appeal processes take place".

"There will be an Interim Management Plan to put you back on the truck (by which I understood her to mean I was to be part of a general duties crew manning a police van) and you will not be undertaking any supervisor duties at all".

Me:"The earlier management plan is finished?"

McCusker:"Yes it has finished and we are going onto this one now".

39 The applicant said that later in the day on 13 March he was handed a copy of the Interim Management Plan stating that it commenced that day. Amongst other things, the Interim Management Plan stated that the complaint, the subject of the investigation had "been sustained".

40 It was the applicant's evidence that when the A/Superintendent gave him the Interim Management Plan he said:

The total action is harsh, particularly the Interim Management Plan, I am being punished for gossiping by being made the subject of everyone's gossip. Stopping me supervising is not the goal of the IRP's actions as there is no restrictions on me supervising, just the demotion. A Senior Constable can still supervise.

41 On 30 March 2012, the applicant received a further notice from A/Superintendent McCusker stating that the Redfern LAC Commander was considering making a reviewable order against him pursuant to section 173(5) of the Police Act "referable to ... LMI 1103491". The notice referred to "1st Complaint - LMI 1005649". Under that heading two issues were identified, namely, "Inappropriate use of the NSW Police Email system" and "Breach of the NSW Police Force Use of Resources Policy". The second complaint referred to was LMI 1102728. The issue raised under that heading was, of course, the discussion in the muster room concerning Constable Shaun Cole. The third complaint concerned LMI 1103491: "Breach of Code of Conduct and Ethics".

42 In a section on the notice headed "Consideration" it was stated:

Consideration

I am deeply concerned about your continuing behaviour and lack of accountability and acknowledgment of your own actions. This concern has not lessened having read your Response dated 14 December 2011.

I note in relation to LMI 1005649 that to the best of your knowledge "there were never any official instructions or policy on who could use the chat system or how it was monitored." Your ignorance of the Electronic Messaging Policy which encompasses instant messaging such as 'chat' does not absolve you of your misconduct. Your continued assertion that the chats were between yourself and close friends does not make the content any less offensive, inappropriate or against policy. Your belief that the investigation was based on opinion and your answers were ignored is mistaken.

I note that you have chosen to systematically respond to each point raised in the Investigator's Report completed by Inspector Fownes. These include your comments on CMF, Detectives taking bribes, political comments, and the sexually explicit and inappropriate comments. Your use and content of the instant messaging system contravened various NSW Police policies. Your justifications do not change this.

In fact, your reasoning shows a lack of understanding of your core role as a supervisor. For example, in your response to the failure to attend a priority one incident. You say you are loading up CAD to check on the job. The NSW Police Handbook states that a priority one incident is one that requires an officer to respond immediately as the matter is life threatening and the actual danger is still present. You chose not to respond thus setting a poor example for the other police on duty. You say that one car crew reluctantly attended but did so at your request. Your actions weaken your assertion that you are a committed supervisor.

Another example which is concerning, is your assertion that your comment, "and I already know what aboriginals are and what ACLOS do (fuck all)" has a legitimate basis. The comment is highly offensive and had the potential to bring the NSW Police Force into disrepute. That you try to justify the comment by referring to my own remarks that the ACLO's need to be supervised is staggering and reveals a distinct lack of maturity and understanding on your behalf. Not only are you being disrespectful to your colleagues, you appear not to respect the community you are serving and you see no issue with conveying these beliefs to a junior officer. These are not the characteristics that are expected from a sergeant of police, particularly one attached to the Redfern Local Area Command.

In relation to LMI 1103491 you provide further explanations or excuses about your behaviour. You fail to acknowledge that you have done anything wrong. What concerns me further, are your repeated attempts to distance yourself from any wrong doing. During the initial interview into this matter it appears you were less than fully frank about your knowledge of the incident until presented with a transcript of the conversation. At this point you agree that the facebook chat made it quite apparent that the incident involved Constable Lodge. In your Response you again try to distance yourself from this admission stating, "It was clear that there was a choice of two different junior Constables but nothing I said would have directed Probationary Constable Walsh to assume (it) was Constable Lodge over Constable Parker". This reversal of your answers has potentially undermined your integrity.

I note that you disagree with Inspector Deans comment about your supervisory competence. You state, "After reading the report I do not see how this complaint reflects on my supervisory competence. I acknowledge that Probationary Constable Walsh is a junior member of the Police Force, however, I was talking to her as a friend, out of work, on a private chat system not owned by the New South Wales Police Force. She is a mature officer and capable or (sic) handling herself. I regret ever having the conversation with her, and I regret placing the trust I did in her. I had no idea that she would contact, and reading between the lines, harass, Probationary Constable Daniel Cole about the incident, nor did I have any idea that she would tell that I told her who it was."

This last comment demonstrates your failure to understand the inappropriateness of your actions and their ramifications. If you did not pass on the information there would not have been the subsequent conversations amongst the junior officers that led to the investigation. You fail to contemplate that as a role model to junior staff your actions provide a template of expected behaviour. Your discussion on facebook provided a poor illustration of professionalism. Your belief that it was a private conversation does not remove the fact that it should never have occurred.

It appears that you do not hold yourself accountable to the standards of behaviour that is expected by the NSW Police Force. Rather, it depends on how you perceive the circumstances you find yourself in, as to how you believe you should act. This attitude has prevailed despite being strongly advised by not only myself on more than one occasion, but also by the Region Commander, that the NSW Police Force expects police officers to abide by the Code of Conduct and Ethics and the Statement of Values.

You have continued to display poor decision making ability as to how you conduct yourself as a Sergeant. You have repeatedly failed to accept that you have let yourself and your colleagues down by continuing to behave in a manner that does not comply with the NSW Police Force Code of Conduct and Ethics and the Statement of Values. Despite management action you have failed to grasp the importance of a supervisor's professional relationship with other police. Nor does it appear you understand what a supervisory position means within a range of contexts, in particular when you deal with junior staff members both on and off duty. You have been given ample opportunity and support to understand and fulfil your responsibilities.

In all the circumstances, I consider there are grounds upon which it could be concluded that your conduct in relation to these matters has fallen well below the standard expected by the community and the NSW Police Force of a sworn officer.

I hereby give you notice that I am considering making a reviewable order against you in the following terms:

That, pursuant to subsection 173(2) of the Police Act 1990, your increment be reduced to; Senior Constable Level 6.

You have seven (7) days from the date of service of this notice to indicate to me that you intend to make written submissions. You have twenty-one (21) days from the date of service of your notice of intention to respond, to forward that written submission to me.

Any such submission should be delivered to me personally at the Redfern Local Area Command.

I will then take into account your written submissions (if any) and make a final determination concerning the making of the subject section 173 order. Should I determine that such an order is to be made, you will be served with a copy of the order formalising that decision.

43 The applicant said in his evidence that when he was handed the notice the applicant looked through it and then the following conversation occurred:

Me:"This notice does involve the complaint from Shaun Cole. I was told that it didn't.

McCusker:"Who told you that?"

Me:"Mr Freudenstein and I have an email about it from Lee-Anne [Ferguson]"

McCusker:"Can you forward it to me? I'll follow it up and get back to you by the end of the day"

Me:"Yes. I will forward it to you straight away.

If I accepted the demotion in theory I could walk downstairs and supervise.

The Interim Management Plan says that I cannot supervise at all but the order being made against me will only demote me not prevent me from supervising"

McCusker:"Even though 'no supervision' is not part of the action being taken against you, no commander will believe you are suitable to relieve due to the action being taken against you for at least the short term."

Me:"What is the short term?"

McCusker:"There is no time limit"

Me:"The Interim Management Plan is above and beyond the actual scope of what is intended in the order and unfair.

If I do accept the demotion, there is no chance that I will get the rank of Sergeant again"

McCusker:"You can reapply"

Me:"Yes I can. I could do the test, I could do the interview, but when it came to the probity check they wouldn't give it to me"

44 The applicant formally responded to the notice under s 173(5) of the Police Act on 16 April 2012. On 14 May, Superintendent Freudenstein met with the applicant and served him with a copy of an order under s 173(2) of the Police Act. The Order referred to the circumstances in LMI 1103491. The notice stated that it appeared there were grounds on which it could be concluded that the applicant's conduct was in breach of the Police Act and relevant NSW Police Force policies and procedures, namely s 7(a), (c) and (h) of the Police Act, items 1 and 4 of the NSW Police Force Code of Conduct and Ethics and the excellence, accountability and leadership obligations in the Statement of Values. Under the headings "Consideration" and "Order" the notice stated:

Consideration

In the circumstances, I am satisfied that your misconduct has fallen below that which is expected by the community and the NSW Police Force of a sworn officer. In particular, I am concerned about your continuing behaviour that demonstrates a lack of leadership and understanding of the role as sergeant.

In your Response you state that you have learnt from the two earlier complaints and the management action that was subsequently taken. In regards to LMI1005649 you say that you have disabled the instant chat system and do not intend to use it in the future. There is no issue with you using the system; it was the manner in which you used it. As a supervisor you should have realised that your conduct was not what was expected from you and breached the NSW Police Force Email and Internet Policy, NSW Police Statement of Values, Code of Conduct and Ethics and other NSW Police Force Policies.

In regards to LMI 1102728 you say that you have not discussed any matters involving other members of staff since receiving advice and guidance. As a leader you are expected to use appropriate interpersonal styles of communication to inspire and guide other officers. Becoming involved in an open conversation where derogatory remarks are made about a fellow officer is not the example that the NSW Police Forces (sic) wants any officer to create and reflects poorly on your understanding of your role and position.

The current complaint while in yet another context, still directly relates to the other two complaint issues. It again demonstrates your lack of understanding of your role and how your actions, whether on or off duty undermine your ability to be a supervisor. It is not the chat itself, but the inappropriateness of what you say and who you are saying it to. In all three complaints, it has been your actions that have let you down. You have not conducted yourself like a supervisor. You have not realised what you were doing was wrong and while you regret what has occurred, it still appears from your continuing conduct and parts of your Response that you have not yet grasped why your conduct was not acceptable. You have not shown the qualities that are expected of a sergeant of police, despite being given ample notice and support to understand and fulfil your responsibilities.

I have taken into account that you now acknowledge that you should not have had the conversation with Probationary Constable Walsh. You say that you have now come to realise the importance of a supervisor's professional relationship with other police. I further acknowledge that a number of your colleagues have written character references in your support.

Order

In all the circumstances, I have formed the view that your misconduct has been shown to be improper and that you should be subject to the action proposed in the Notice.

I therefore order the following action:

That pursuant to section 173(2) of the Police Act 1990, you be subject to a reduction in rank to Senior Constable Level 6.

You have the right to seek a review of this Order by the Industrial Relations Commission on the grounds that the Order is beyond power, or is harsh, unreasonable or unjust. You have twenty-one (21) days to lodge your application for review from the date of service of this Order. There is also provision for administrative review by the Supreme Court. You may seek independent legal advice in relation to your rights and obligations.

This Order takes effect twenty-one (21) days from the date of service upon you of this Order or, where an application for review is filed, when the application is finally determined.

45 In his affidavit, the applicant deposed as to the effect of the order on him:

Most officers with whom I have dealings at the Redfern LAC have let me know that they are aware of the section 173(2) Order against me and the circumstances in which it was made.

The circumstances I have experienced, referred to above, have caused me distress and anxiety which have manifested themselves in various ways including:-

(a) Although I have not been absent through sickness, I have felt reluctant to go to work and have lost enthusiasm for my work; prior to the private Facebook Chat Disciplinary Investigation I enjoyed my work and gained satisfaction from it;

(b) I have had difficulty sleeping and have had nightmares, neither of which I suffered from before the Investigation;

(c) I now regularly suffer from lethargy which I did not previously experience;

(d) My days off have been spoiled because of my anxiety about what I was to experience when I returned to work.

(e) Each day I attend work I am apprehensive that I am to be summoned to the Superintendent's office about some alleged infraction even though objectively I believe that I have no reason to think that;

(f) The lengthy delay in processing the complaint against me has added to and extended stress and anxiety I have suffered;

(g) In the first few weeks after the Order was made, I noticed that I was quick to anger, suffered from irritability and lacked patience.

(h) I have become particularly sensitive to, and distressed by, incidents and memories with which I had previously been able to cope. For example, I am now more distressed than I previously was when dealing with people living in squalor or found dead in the course of my duties. In addition, recollection of sad events in my past life distresses me in a way that I did not previously experience;

(i) I have felt isolated at work. I was not now a supervisor nor a member of the team. The Interim Management Plan requires me not to gossip and that has made it difficult for me to communicate with other Police Officers when we are working together;

(j) I have avoided participation in social activities and have been pre-occupied about what has happened to me. When I have engaged in social interaction I have been conscious of a tendency to monopolise the discussion by talking about what has happened to me and failing to allow others to interact with me by talking about things that interest them;

(k) I am concerned about my financial position (including my possible loss of pay because of my demotion and the legal expenses that I am incurring in relation to these proceedings) and its effect on my ability to maintain my mortgage payments and other recurring expenses;

(l) I am uncertain about the domestic plans that my partner and I have made which is also causing her distress;

(m) I have been humiliated by having to seek references from friends and colleagues ... to respond to the Investigator's Report referred to above in this affidavit.

46 In his affidavit, Superintendent Freudenstein (who was not required for cross-examination) deposed to the following:

In the order I referred to my belief that Sergeant McDiarmid did not appear to realise that his conduct was wrong and did not appear to understand why the Commissioner of Police would consider that his conduct was not acceptable. Had Sergeant McDiarmid demonstrated that he realised that what he had done was wrong and not acceptable, then consideration would have been given to taking the same action but for a period of 12 months only, with the intention that he would return to Sergeant Level 3 on satisfactory completion of the Conduct Management Plan extended for 12 months.

...

When I stated in the order that Sergeant McDiarmid had not conducted himself like a supervisor I did so taking into consideration the rank, age and position of those Sergeant McDiarmid communicated with on the chat system, and Facebook. Generally they were Probationary Constables, Constables, or Senior Constables, all bar one being female.

A sergeant supervises a team of perhaps 10 or dozen officers and is responsible for their performance management plans and also the supervision of their discipline. A sergeant is generally unmonitored in their day to day activities, and a high standard is expected of them in the way they perform their duties as seen by their team members. It would be difficult for a sergeant to discipline a junior officer for matters of poor conduct in breach of policy if, in their day to day engagements with those officers, they did not have a reputation of meeting those standards themselves.

A sergeant needs to have the credibility to take on their team members if there is a need to rein in their conduct or behaviour. It is a necessary aspect of support for the chain of command within the NSW Police Force that sergeants have the respect of those they supervise.

If junior police officers were sexually harassed or have malicious rumours spread about them, in particular females, they should be able to seek advice and some surety that action would be taken in reporting their issues to a supervisor. I do not believe an officer, particularly a junior female officer, would report sexual harassment or malicious rumours to Sergeant McDiarmid if they knew or heard about what he says about females and how he participated in a guessing game with a junior female officer about another junior female police officer who had committed an offence.

The NSW Police Force is comprised of members of the NSW Police Force such as Constables, Senior Constables, Sergeants, Senior Sergeants, Inspectors, Chief Inspectors, Superintendents, Chief Superintendents, Assistant Commissioners, Deputy Commissioners through to the Commissioner.

The NSW Police Force is structured by rank. Officers are ranked as follows, in ascending order, Probationary Constable, Constable, Senior Constable, Sergeant, Senior Sergeant, Inspector, Chief Inspector, Superintendent and Chief Superintendent.

The NSW Police Force is historically based on a paramilitary system, which is based on subordinates being required to follow directions given by senior officers. There is a chain of command in that officers are to comply with all lawful orders of their superior officers. The chain of command sets in place a workable system whereby officers know who they must obey when directions are issued. Without such a chain of command, the NSW Police Force would not be an effective organisation, particularly in times of crisis and during operational matters where the chain of command is important to the efficient and timely performance of duties.

In my view the conduct of Sergeant McDiarmid the subject of the Order under section 173 of the Police Act 1990, related to his professional relationship with other police and was conduct that could undermine the chain of command.

Submissions for the applicant

47 The grounds in support of the applicant's application for review of the Order were that the Order was beyond power and, in the alternative, the Order was harsh, unreasonable or unjust.

48 The contention that the Order was beyond power rested on the proposition that the applicant's conduct was not misconduct and, therefore, there was no basis upon which the Commissioner could have made an Order under s 173(2) of the Police Act. The applicant's submissions in this regard may be summarised in the following terms:

(a) even though the applicant challenges the allegations that his conduct was misconduct, he expressed contrition for that conduct. These expressions of contrition should not be seen as undermining his submissions regarding penalty and misconduct;

(b) although the onus is on the applicant to establish the harshness, unreasonableness or the injustice of the respondent's decision; the onus on the respondent is to establish to the standard determined in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that the conduct was misconduct: see Starr v Commissioner of Police [2001] NSWIRComm 226 at [145]-[161];

(c) misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts: Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 per Kirby P;

(d) the Commission should have regard to the different shades of meaning given to the words "harsh, unjust and unreasonable" by the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410;

(e) no instruction has ever been issued by the Police Force that discussions amongst police officers of criminal charges being laid against another officer is not permitted;

(f) a criminal charge against any person is not confidential, even if it is not generally known. It must be disposed of in open court;

(g) the media had access to all of the court documents pertaining to the charge against Constable Lodge that are referred to in the applicant's affidavit. That the media did not access those documents is beside the point; the point is information about Constable Lodge's charge and her penalty was freely available to the public at large and therefore there was no misconduct on the applicant's part in discussing the fact Constable Lodge had committed an offence;

(h) it is not in the public interest that police officers are prevented from discussing criminal matters affecting colleagues; it should be out in the open. Placing a veil over such discussions would reduce transparency and undermine the public confidence in the Police Force;

(i) it was alleged the applicant breached s 7 of the Police Act and the Code of Conduct, but the applicant was never advised how his conduct amounted to a breach. The provisions are expressed in global and abstract language to a very high degree of generality. They are either principles or values and they are not rules of conduct dealing with specific situations. Accordingly, the respondent has not discharged the onus of proving misconduct;

(j) the conduct, the subject of the Order, was a private communication between the applicant and a friend, also a Police Officer, conducted over the Internet on their personal computers in a private facility of Facebook while both were off-duty and away from the workplace;

(k) the subject of the conversation was a matter in the public domain, was in the public interest and relevant to the integrity of the NSW Police Service about which all members of the Police Service had an interest in knowing namely, that another Police Officer had been charged before a local court with offensive behaviour. The Police Officer subsequently pleaded guilty;

(l) it is in the public interest and desirable or necessary for the integrity of the Police Service that criminal charges against members of the Police Service be published and discussed within the Police Service;

(m) it is contrary to the public interest and undermines the integrity of the Police Service to prevent or inhibit publication and discussion within the Police Service of criminal charges laid against members of the Police Service;

(n) it is contrary to the public interest and undermines the integrity of the Police Service to prevent or inhibit members of the Police Service from exercising rights as citizens in a free and democratic society to discuss criminal charges brought against other members of the Police Service.

49 The applicant's submissions in support of its alternative proposition, that the penalty imposed on him was harsh, unreasonable or unjust, may be summarised as follows:

(a) in relation to the conversation with Constable Walsh regarding the Lodge incident, it was a private conversation the applicant had with a friend about criminal conduct of a police officer who pleaded guilty to the offence;

(b) Constable Lodge's complaint was made more than a month after she had learned of the conversation between the applicant and Constable Walsh and four days after she was found guilty and placed on a good behaviour bond for an offence that the Magistrate described variously as despicable, vile, disgusting and highly offensive;

(c) the inference may be drawn that Constable Lodge did not of her own volition file the complaint but did so at the request of a senior officer or officers;

(d) the fact that Constable Lodge had committed the offence was well known and the subject of comment amongst police officers at the Redfern LAC on 17 June 2011. The applicant did not divulge information that was confidential;

(e) it seemed to be suggested that the applicant should not have talked about Constable Lodge's offence with junior officers and if he had not Constable Lodge would not have been distressed. This inference is available from the notice to show cause, which stated, "If you did not pass on the information there would not have been the subsequent conversations amongst the junior officers that led to the investigation." In this regard, one is entitled to ask what weight can be given to a complaint by an offender that people discussing her criminal conduct distressed her. Further, the question of weight becomes more acute when the inference is available that the complaint was only made after the guilty plea by Constable Lodge and public condemnation of her conduct in circumstances where the report of her conduct does not seem to have been volunteered by her, but provided at the request of the duty officer. Further still, it was factually wrong that the applicant's conversation with Constable Walsh had been the cause of subsequent discussion with junior officers;

(f) when a member of a group such as police is charged with a criminal offence, it is common experience that other members of the group very quickly find out who is charged and discuss it amongst themselves;

(g) knowledge of the offence was facilitated by the respondent who published a media release on the day after the offence was committed, not merely stating that criminal conduct was alleged but asserting as a fact that it had occurred. It was inevitable in those circumstances that upon publication it would become well known very shortly who was the offender;

(h) the applicant's communication was in private to a friend, albeit a police officer, outside work hours and on their private computers. The applicant said that he trusted that his communication would remain private;

(i) all the conversations within the Police Force regarding the Lodge incident were condemnatory of the conduct. This was appropriate. It was an example of police officers facing up squarely and transparently to deficiencies with the Police Force, which is a necessary concomitant of maintaining the integrity of the Police Force and public confidence in it;

(j) if criminal conduct of police officers is not talked about by them and is kept secret, it must undermine the confidence of the public in the integrity of the Police Force: see Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397 at 412 per Brennan J;

(k) Constable Lodge's criminal conduct would have affected public confidence in the Police Force. If the Police Force were banned from discussing that amongst themselves that must only raise further apprehension in the minds of the public at large that the Police Force are trying to ignore or cover up criminal conduct within their ranks;

(l) disciplining police officers who condemn criminal conduct by other officers is not conducive to reassuring the public of confidence in the Police Force;

(m) Constable Lodge received a good behaviour bond for committing a criminal offence. The applicant has been demoted for having a private conversation about her criminal conduct. No one else at the Redfern Police station who participated in the widespread conversation about Constable Lodge's offence has been disciplined apart from Constable Walsh;

(n) senior police were aware from the time that the applicant was interviewed that discussion about the Lodge incident was widespread, but there is no evidence anybody other than the applicant and Constable Walsh were ever disciplined. The penalty in those circumstances is particularly harsh having regard to the consequences on the applicant's reputation, the humiliation he is experiencing, his reduced chances of promotion and the potential loss of earnings if the Order remains in place;

(o) the harshness of the penalty is aggravated by the fact that since this matter was first raised with the applicant on 5 September 2011 he has been experiencing stress, distress and uncertainty. He was left in this condition between 5 September 2011 and 13 March 2012 without any explanation as to why it was taking so long.

50 The applicant made submissions regarding the implications of the Chat incident and the Cole incident. In summary, the applicant contended:

(a) on the scale of seriousness one might consider that the Chat incident was more serious than the later incidents but the applicant remained as a sergeant performing all his duties since 1 March 2011 when he received the reprimand regarding the Chat incident. It is, therefore, a hollow suggestion to contend that conduct demonstrates that he was not fit to be a sergeant because the respondent accepted he should remain a sergeant. The same argument applies in relation to the Cole incident;

(b) in relation to the Chat incident there are some mitigating circumstances:

(i) the applicant believed that he was having private communications with friends on the chat system provided by the Police Service. He accepts that the communications included discussions of topics and language that was inappropriate and it was inappropriate particularly because it was on the respondent's computer system;

(ii) immediately after the applicant was interviewed about the Chat incident of his own volition he disabled the computer;

(iii) the applicant was not the only one who mistakenly and naively believed that the system contained private communications;

(iv) the applicant is a well-respected officer as attested to by the character references in evidence;

(c) in relation to the Cole incident:

(i) one of the Inspectors who investigated it was intending to deal with it informally, the complainant himself, agreed that it should be dealt with informally;

(ii) although it was found that the applicant had harassed Constable Cole, the Workplace Relations and Equity Unit, which is an advisory service within the Police Force, expressed the view that the applicant's conduct was not harassment;

(iii) whilst it was found the applicant used offensive language regarding Constable Cole, it is difficult to believe the police officers present would consider "that's fucked" to be offensive language;

(iv) the applicant expressed contrition;

(v) the person who told the story regarding Constable Cole about which the applicant commented was never disciplined, but the applicant was.

51 The applicant made submissions regarding procedural invalidity. In summary, it was submitted:

(a) the procedural invalidities associated with the making of the Order had the effect of rendering the Order void: Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 at 383 per Hutley JA;

(b) the breach of s 7 of the Police Act and the breach of paragraph 1 of the Code of Conduct and the Statement of Excellence were not alleged in the report that was given to the applicant when he was charged;

(c) there was a failure to disclose to the applicant all material taken into account by the respondent in making the Order;

(d) the applicant was misled about the use that was to be made of the Cole incident against him;

(e) the decision to make the Order was made without the applicant being given an opportunity to consider all the material relied upon in making the Order;

(f) the applicant was informed on 13 March 2012 prior to receiving the show cause notice that he would be placed on an Interim Management Plan and reduced in rank to Senior Constable.

52 In relation to the form of orders the applicant submitted the Commission should mould the Order not only to revoke the s 173 Order, but also to make it clear by the Order that the Conduct Management Plan that is presently applicable is either revoked or not applicable to the applicant. Further that the Order should also direct the applicant be returned to his duties as Sergeant without any limitation and without being subject to any Conduct Management Plan or further action in relation to those disciplinary matters the subject of these proceedings. The applicant also sought compensation by way of damages.

Submissions for the respondent

53 The respondent submitted the Order pursuant to s 173(2) of the Police Act was issued to the applicant following an investigation concerning the applicant engaged in "a guessing game on Facebook with a junior officer", disclosing the identity and criminal conduct of another police officer, Constable Lodge. It was submitted the incident constituted:

(a) an inappropriate communication with a Probationary Constable not befitting of his rank and position;

(b) an inappropriate communication which demonstrated that the applicant lacked judgment such as to call into question his seniority; and

(c) an inappropriate communication which demonstrated that the applicant had not learned from his previous warnings, did not understand what he had done wrong and was not accepting of the fact that he had done something wrong.

54 Counsel submitted this was not a case about behaviour in "private". Rather, it was a case about the manner in which a Sergeant ought to conduct himself so as not to undermine his ability to perform his duties as a police officer. Further, that the Lodge incident came after a history of "inappropriate interpersonal styles of communication that did not inspire and guide other officers". The Lodge incident occurred only three months after the applicant had received a Region Commander's Notice, on 1 March 2011 and where he was the subject of a Conduct Management Plan for inappropriate communications with other police officers on the police internal chat system - LMI 1005649. At the same time, the applicant was also the subject of a complaint where he was critical of a subordinate in the presence of other junior officers - LMI 1102728.

55 It was submitted the Order was moderate, reasonable and fair in the circumstances and that the Commissioner followed the correct procedures stipulated under the Police Act and afforded the applicant procedural fairness.

56 Counsel referred to the task of the Commission under s 175(4) of the Police Act in that in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest. In undertaking that task the Commission was required to make a fresh and independent review decision itself, based on the material that was before the Commissioner of Police as well as any new material admitted: Hosemans v Commissioner of Police [2004] NSWIRComm 253; (2004) 138 IR 159 at [134]. The applicant bore the onus of proof of establishing that the Order was harsh, unreasonable or unjust: s 175(2) of the Police Act.

57 In so far as the applicant's interests were concerned, it was submitted that despite the "numerous and serious breaches" of the Police Code of Conduct and Police policies, the applicant was only demoted one rank. Further, there was nothing to stop the applicant from applying for promotion in the future.

58 The respondent addressed the public interest considerations. First, in relation to the applicant's alleged misconduct the respondent submitted this required a consideration of all three incidents because:

They are all matters which inform the Commission as to whether the level and severity of the misconduct, whether it was isolated, or constituted a further instance (related or unrelated), was similar in nature or not, which by reason of these other matters, cumulatively gives rise to the misconduct and also are relevant to a consideration of harshness (whether the person has learned from the last remedial action) and whether the officer knows, understands and is prepared to accept what is required of him.

59 There was no basis, it was submitted, upon which it could be alleged that the "misconduct" was confined, for the purpose of considering the validity of the Order under s 173, to a consideration of the Lodge incident in isolation without considering the circumstances leading up to that incident. The respondent observed that the Commission was empowered by s 175(3) to take into account such matters as it considered relevant. Consistent with the approach of the Commission when considering dismissals, an employer, and accordingly in the Commission in the exercise of its statutory function, may consider the previous conduct of an employee in determining whether the Order was appropriately made: Hornsby Shire Council v Hunt [2002] NSWIRComm 158; (2002) 115 IR 461 at [41]. Moreover, it was open for the Commission to consider all circumstances leading up to the event giving rise to the proceedings: Commissioner of Police v Collins [2008] NSWIRComm 162; (2008) 180 IR 191 at [37]-[40].

60 The respondent made submissions regarding what was required of the applicant in his position. In this respect, it was submitted the applicant's alleged misconduct must be considered in the light of: (a) his rank and seniority within the Police Force; (b) what his position required; (c) the fact that he had already received a Region Commander's Warning Notice; and (d) was the subject of a Conduct Management Plan concerning his inappropriate interaction with other police officers.

61 Counsel noted the applicant made the following concessions regarding his position:

(a) responsible for a general team and would be shift supervisor;

(b) a mobile supervisor, on occasion, which required attending jobs of note or importance and guiding the car crews;

(c) the custody manager on occasion which includes taking care of prisons and monitoring the arrests to ensure that they had been fair and legitimate;

(d) required to provide junior officers with guidance and assistance;

(e) to be a peer support;

(f) to explain Police procedure to more junior officers;

(g) to counsel a more junior officer if they were doing something which was against Police procedure;

(h) to monitor the procedure and standards required of personnel to ensure that people were in compliance with that procedure;

(i) to monitor the ethical standards and integrity of the command;

(j) to allocate tasks to juniors (whether on his particular team) or when he was mobile supervisor or custody manager;

(k) to make comment about whether a junior officer could be transferred;

(l) to recommend whether more junior officers went on courses or not;

(m) to make comment about whether a person can take family and community leave;

(n) in order to be an effective supervisor in the position of Sergeant he needed to know and apply Police procedure.

62 In relation to the Chat incident, counsel for the respondent submitted that the applicant's conduct amounted to misconduct in that:

(a) the applicant breached the Email and Internet Policy and Use of Resources policy by reason of the nature and extent of his use of the chat system. The Email and Internet Policy states only limited and responsible personal use is acceptable, conduct on email and the internet should not be considered private. The Policy defines improper use to include "offensive" material of a sexual kind whether or not the recipient is offended and "communications such as inappropriate or rude jokes, ......" The Use of Resources Policy stipulates that communication and information devices are resources within the meaning of the policy and that those resources only be used for "minor personal use".

(b) the applicant breached these policies in circumstances where he knew what he was doing was wrong but did so anyway;

(c) even if it were the case that the Commission found that the applicant did not know that the conduct was wrong, the fact that he failed to appreciate at the time that he was engaging in the communications that it was wrong, illustrates a profound lack of judgment and insight on his part such as to call into question his capacity to supervise.

63 The respondent submitted the Chat incident communications could not be excused or explained away on the basis of an assertion that they were "private" or between "friends" or persons he had previously had, or was having, a relationship with. The communications occurred at work, in work time, with other police officers who he had met at work and with whom he may have direct dealings as a supervisor in the future. The Commissioner was entitled to expect that a Sergeant would lead by example and be an example to all those juniors that he came into contact with.

64 In relation to the Cole incident, it was submitted this was another occasion where the applicant did not lead by example and where he got involved in a conversation that was critical of a junior officer that led to a complaint being made about him. Counsel submitted:

The issue is that whilst the Applicant wants to be in the position of Sergeant (seniority, rank), he does not want to accept the responsibilities that come with that position: Be more responsible than his sub-ordinates and quell inappropriate behaviour. He wants to be in the mix of gossip and poor behaviour.

...

At the time of the Cole incident, the Applicant was the most senior person present. The conversation was about one of the Applicant's more junior officers and with whom the Applicant had had run-ins and who he was responsible for supervising from time to time. The appropriate way for him to have dealt with the situation was to speak directly with Cole about the issue of the parking tickets or to Cole's supervisor. The Applicant did not accept this proposition and stated remarkably that he would only have to deal with it if there was an actual complaint. The Applicant did not accept that the comment was offensive or inappropriate nor (sic) that his own comment was in fact critical of Cole. The Applicant shirked from his responsibilities in this instance and said he did not need to speak to Cole, to inspire and guide, as he was meant to. Rather it was left to Constable Cole because he has been around long enough to know what it is he (sic) going to do.

65 In relation to the Lodge incident the respondent submitted:

(a) the applicant knew, by reason of his previous misconduct and the Conduct Management Plan, at the time of the Lodge incident, that the Police had issues with the way that he joked with other police officers; that the Police had issues with him being disrespectful to work colleagues over the chat system; that the Police had issues with him making critical and disparaging remarks about other police officers to junior officers; and that the Police were concerned that he displayed attitude and apparent disrespect towards his colleagues;

(b) the incident demonstrates a compulsion on the applicant's part to engage in scurrilous gossip about other police officers; to be seen as someone in the know by virtue of his rank, as a means to then communicate with more junior officers. It demonstrates a failure on his part to lead by example and to act in a manner not befitting of his rank;

(c) the applicant engaged in an infantile guessing game about Constable Lodge. The applicant accepted, under cross-examination, that his conduct was disrespectful of Lodge. As well as being conduct inconsistent with that required of a sergeant, the readiness to gossip so quickly after obtaining the information from the supervisor's room is inconsistent with the obligation of confidentiality that arises under cl 75 of the Police Regulation 2008;

(d) it is not to the point that it was out of work time and when the applicant was off-duty, an employer is able to give direction relating to conduct outside work and/or to sanction it if it has an affect (sic) on the workplace: McManus v Scott-Charlton (1996) 70 FCR 16 at 23; Australian Tramway Employees' Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42; Attorney-General's Department v Miller (2007) 160 IR 185 at 207;

(e) the Applicant's guessing game lead directly to Constable Lodge's name becoming known throughout the station. On 19 June 2011 when Constable Lodge next attended the station she was approached by a number of people who knew of her involvement in the incident. After inquiry Constable Lodge was told that it was the Applicant that was the source of her name. Constable Lodge was sufficiently distressed so as to lodge a complaint;

(f) the applicant's lack of judgment is exhibited by the fact that he spoke to Probationary Constable Walsh: a potential material witness. It had the risk of potentially compromising any investigation given that Probationary Constable Walsh had been present for part of the evening in which the incident occurred. It also demonstrates again that Sergeant McDiarmid did not ensure that authority was exercised responsibly, s 7(h) of the Police Act;

66 The respondent addressed what he considered was the applicant's "lack of awareness and understanding" of his misconduct. In that regard, it was submitted:

(a) an important part of the reason for the demotion was the fact that the applicant did not understand what his role requires and how to use appropriate interpersonal styles of communication: It was apparent from the applicant's response to the Commissioner, with respect to all three incidents, that he did not understand what his role was, the nature of the misconduct nor how his actions, whether on or off duty undermine his ability to be a supervisor;

(b) the applicant is not by his conduct demonstrating he can be a supervisor. Even though the applicant had been subject to a Commander's Warning Notice in respect of the Chat incident he repeated similar behaviour in the Cole and Lodge incidents. The Order is made with the intention of bringing about a change in the way the Applicant performs his duties, and the Order is necessary given that the Commander's Warning Notice did not bring about the appropriate change in the Applicant's behaviour;

(c) the applicant accepted under cross-examination that it is his job to identify, monitor and pull other officers into line for "inappropriate" behaviour but did not accept that by reason of his own inappropriate behaviour it called into question his abilities as a supervisor. The applicant concedes that it is his job to set the standard in terms of how his subordinates act but does not appear to accept by him not setting the standard he is not doing his job and his failure to understand what the standard is (by reason of his conduct) also calls into question his ability.

67 Counsel for the respondent referred to the character references relied upon by the applicant. It was submitted they should be given limited weight. None of the referees had a true and intimate knowledge of the applicant's misconduct and previous misdemeanours. The references predated the s 173 Order. None of the referees were contemporaneous with these proceedings nor had they been provided with the s 173 Notice or Order. Accordingly, their forensic weight in these proceedings must be very limited. See Toshack v Commissioner of Police [2009] NSWIRComm 31; (2009) 181 IR 420 at [73] to [75].

68 It was next submitted that the Commissioner undoubtedly had a strong and legitimate interest in maintaining a workforce that followed Police procedure. The Commissioner must be confident that those police officers in senior, authoritative positions would know and comply with Police procedure. A functioning chain of command depends on it, it was submitted. Counsel submitted the evidence revealed the applicant did not have, whether by lack of regard or wilful oversight, a sufficient grasp of Police procedure commensurate with his level of seniority. This was a serious concern to the NSW Police and a sufficient basis for his position to be reduced in rank.

69 The respondent referred to the applicant's contention that by the imposition of the Interim Management Plan he was in fact demoted. It was submitted that, on the contrary, the evidence revealed that the applicant was not demoted; he has remained in the position of Sergeant and been paid at that level. All that has happened, as stated in the Interim Management Plan, was that there had been a restriction placed on his ability to supervise others pending the completion of the disciplinary process. This is clear from the content of the Interim Management Plan.

70 The respondent denied there was any procedural unfairness; he had complied with s 173(5) of the Police Act. The approach to questions of procedural unfairness was that determined by the Full Bench in Reid-Frost v Commissioner of Police [2010] NSWIRComm 2; (2010) 192 IR 363 at [4], [6]-[7] [11](m), [23] and [27]-[30]. That is, in review proceedings the Commission is to consider complaints about alleged failure by the Commissioner to comply with the requirements of the Police Act as part of the fabric of the merit review rather than as complaints as to the "validity" of the Order made.

71 It was submitted there was no procedural unfairness for failing to give reasons in the Notice, or in any failure to take into account the applicant's response to the Notice.

Consideration

Relevant statutory provisions

72 The relevant provisions of the Police Act dealing with misconduct of police officers are to be found in Divisions 1A and 1B of Pt 9. There was no issue that in this case the Commissioner, in making the Order demoting the applicant, took "reviewable action" under s 173(2)(a), which provides:

(2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct:

(a) a reduction of the police officer's rank or grade,

...

73 Relevantly, ss 173(5)-(8) provide:

(5) Before making an order for reviewable action, the Commissioner:

(a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and

(b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and

(c) must take into consideration any written submissions received from the police officer:

(i) during the period of 7 days referred to in paragraph (b), or

(ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served.

(6) As soon as practicable after making an order for reviewable action, the Commissioner must cause written notice that the order has been made to be served on the police officer concerned. The notice must be served personally or (if personal service is impracticable) by post.

(7) The written notice must contain the terms of the order and must indicate:

(a) the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the order has been made, and

(b) whether the order results from a complaint that has been investigated, or is being investigated, under Division 5 of Part 8A, and

(c) the Commissioner's reasons for making the order.

(8) An order for action referred to in subsection (2) takes effect:

(a) in the case of non-reviewable action, when the order is made, or

(b) in the case of reviewable action, at the expiry of the time within which an application for a review of the order may be made under section 174 or, if such an application is made within that time, when the application is finally determined.

...

The complaints against the applicant

74 The Notice alleged that in relation to the Chat incident the applicant had inappropriately used the Police Email system, first because of the language used and secondly because of the attitude displayed by the applicant to his work. The Notice also alleged a breach of the Police Force's Use of Resources Policy in that the applicant engaged in lengthy and ongoing non-business conversations using the Chat System.

75 The Notice further alleged in relation to the Cole incident that the applicant had breached his Conduct Management Plan and that he harassed another officer in breach of the Police Code of Conduct and Ethics.

76 In relation to the Lodge incident it was alleged the applicant had behaved "in a manner that did not comply with the NSW Police Force Code of Conduct and Ethics and the Statement of Values" and appeared to have breached Point 4 of the Code of Conduct and Ethics which provides:

An employee of NSW Police must treat everyone with respect, courtesy and fairness...

77 When one examines the Notice, it is apparent that the respondent considered the misconduct on the basis of which the Commissioner intended to make the proposed order was as follows:

(a) inappropriate use of the Police Email and Internet system;

(b) breach of the Police Force's Use of Resources Policy;

(c) failure to comply with the NSW Police Force Code of Conduct and Ethics and the Statement of Values, in particular item 4 of the Code of Conduct and Ethics;

(d) a lack of understanding on the part of the applicant of his core role as a supervisor;

(e) comments made by the applicant that were highly offensive and which had the potential to bring the NSW Police into disrepute;

(f) displaying disrespect to colleagues;

(g) a failure on the part of the applicant to understand the inappropriateness of his actions and their ramifications;

(h) a failure on the applicant's part to hold himself accountable to the standards of behaviour that is expected by the Police Force;

(i) poor decision making ability as to how the applicant was to conduct himself as a sergeant;

(j) despite management action, a failure on the part of the applicant to grasp the importance of a supervisor's professional relationship with other police.

78 In accordance with s 173(5) the applicant was provided with an opportunity to answer the allegations in the Notice and did so. On 14 May 2012, the applicant was served with the Order. In somewhat equivocal terms the Order stated that it "appeared" there were grounds on which it could be concluded that the applicant's conduct was in breach of the Police Act and relevant NSW Police Force policies and procedures. The provisions of the Police Act relied upon by the respondent were s 7(a), (c) and (h):

7 Statement of values of members of NSW Police Force

Each member of the NSW Police Force is to act in a manner which:

(a) places integrity above all,

...

(c) preserves the rights and freedoms of individuals,

...

(h) ensures that authority is exercised responsibly.

79 Items 1 and 4 of the NSW Police Force Code of Conduct and Ethics were also relied upon:

An employee of the NSW Police Force must:

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

...

4treat everyone with respect, courtesy and fairness

...

80 Further, in the Order the respondent referred to the excellence, accountability and leadership obligations in the Police Force's Statement of Values:

Excellence - having the highest professional standards and integrity

Accountability - acknowledging ownership and being answerable for your actions

Leadership - acting as a role model for the community and your colleagues

Procedural invalidity

Identification of the misconduct

81 The Order did not explain in specific terms how the applicant breached or failed to comply with each of the standards referred to in the Police Act, Code of Conduct and Ethics or the Statement of Values. In the section of the Order headed "Consideration", however, the Order was more specific. It contended that:

(a) the applicant's misconduct had fallen below that which was expected by the community and the Police Force;

(b) the applicant's continuing behaviour demonstrated a lack of leadership and understanding of the role of sergeant;

(c) the applicant breached the Email and Internet Policy;

(d) the applicant's conduct reflected poorly on his understanding of his role and position;

(e) the applicant had not realised what he had done was wrong and it appeared from his continuing conduct and parts of his response to the notice that he had not yet grasped why his conduct was unacceptable;

(f) the applicant had not shown the qualities that were expected of a sergeant of police;

(g) the applicant's conduct was improper.

82 Whilst there was some disconnect between the matters identified in the show cause Notice and those in the final Order as to the nature of the applicant's alleged misconduct, I do not consider it follows that any procedural unfairness arises. Essentially, the misconduct that was alleged against the applicant in the Notice and in the Order was that the applicant:

(a) breached the Email and Internet Policy;

(b) breached the Police Force's Use of Resources Policy;

(c) engaged in conduct that had the potential to bring the NSW Police into disrepute;

(d) was disrespectful to colleagues;

(e) demonstrated a lack of leadership and understanding of the role of sergeant;

(f) had not shown the qualities that were expected of a sergeant of police in that he failed to grasp the importance of a supervisor's professional relationship with other police; and

(g) failed to understand the inappropriateness of his actions and their ramifications.

83 I do not consider the applicant was under any misapprehension that these were the essential complaints by the respondent against him. He had the opportunity of stating his defence to the matters put against him and took that opportunity.

Disconnect between show cause notice and Order - whether invalidity arises

84 The applicant contended that an invalidity arises because the Notice referred to one part of the Code of Conduct and Ethics and the final Order referred to that part and other parts, that the Order refers to s 7 of the Police Act whilst the Notice does not, and that no particulars were provided regarding the Statement of Values.

85 As I indicated, I accept there was some disconnect between the Notice to show cause and the Order. But I do not consider it constitutes invalidity. Section 173(5)(a) requires the police officer to be served with "a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order."

86 The provisions of the Police Act, Code of Conduct and Ethics and Statement of Values referred to in the Notice and Order are standards that constitute a general guide for police officers to follow. Misconduct will not be identified if there is merely a reference to a generally promulgated standard of behaviour: if a notice merely stated that the misconduct was a failure to comply with the Statement of Values because there was a failure of leadership, for example, without stating the nature of the failure and then the subsequent Order proceeded to state the nature of the failure, in that case there may be substance in a complaint of invalidity.

87 However, in the present case, the references to general standards of behaviour were supplemented in both the notice to show cause and the Order by specific complaints of misconduct that fell within the general framework of behavioural standards fixed by the Police Act, the Code of Conduct and Ethics and the Statement of Values. I am satisfied the applicant is an intelligent, articulate police officer who well understood the essential nature of the complaints against him and was in a position to make an informed defence.

88 Some additional guidance in this respect can be obtained from the decision in Reid-Frost. Whilst that matter concerned the removal of a police officer under s 181D of the Police Act, what the majority (Walton J, Vice-President and Kavanagh J) held regarding the treatment of procedural issues is apposite. The majority relevantly stated (citations omitted):

[4] We are further inclined to the view that his Honour erroneously determined the matter upon a finding as to the validity of the order made by the Commissioner having regard to a failure by the Commissioner to adhere to the requirements of s 181D(3) and (4) of the Act, rather than treating those failures, as he may have done, as part of the fabric of the merit review where such questions would bear upon the fairness of the Commissioner's approach.

...

[11](d) The review proceeding will, thereby, be undertaken procedurally in a manner consistent with unfair dismissal proceedings (Hosemans (No 2) at [104]) and adopt the jurisprudence of the Commission with respect to unfair dismissal proceedings (Little (No 2) at [65]), except where the procedure and principles are expressly excluded by the Act;

[11](e) These considerations need to be married with our earlier observation regarding the significance of procedural failures in review proceedings. First, the procedural issues will be one element of the resolution of the merits of the review, which may take on a greater or lesser significance depending upon the gravity of the failure and its affect on the opportunity for the police officer to receive a fair hearing. This is consistent with the approach in unfair dismissal matters. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 388 ('Antonakopoulos'), the Full Bench imported natural justice requirements (to the extent applicable) in to unfair dismissal matters;

[11](f) In a little quoted passage from the decision of the Full Bench in Bigg (at [45]), it was made clear that questions of procedure including a consideration of the 'statutory mechanism' (then s 181B of the Police Service Act) would be open for review (in proceedings brought under then s 246 of the Industrial Relations Act 1991) as an "exemplar of the industrial merit of the decision, as well as the general industrial merits of the decision" of the Commissioner. Similarly, as was stated in Starr v Commissioner of Police [2001] NSWIRComm 226 at 140 ('Starr'), "each case must be determined in a manner appropriate to the facts and issues raised and appropriate to the manner in which the parties present their case";

[11](g) There may be cases where the assessment of the merits of an application may result in a procedural failure, per se, rendering the removal harsh, unreasonable or unjust but, as we will later discuss, proceedings under Div 1C of Part 9 of the Act have, thus far, resulted in only limited examples of such matters, that is procedural factors alone resulting in a determination that the removal is harsh, unreasonable and unjust. Those cases have revealed very serious procedural failures (see our later discussion of Bigg and Van Huisstede following);

...

[11](m) Our final observation, in this respect, is that the review process is not in the nature of an administrative law review. The significance of procedural failures is to be weighed as part of the overall assessment of the application brought under s 181E(1): Hosemans (No 2) at 107. Principles of administrative law may well inform, however, considerations as to whether the removal was harsh, unreasonable or unjust, as they direct attention to whether a step taken or omitted by the Commissioner has resulted in an unfairness which attracts one of those epithets. For example, the adoption of the principles from the judgment of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 in Bigg was for the purposes of guiding the resolution of the merit review including the procedural issues involved therein.

...

[27] That consideration brings us to a further issue with respect to the Notice. The Commissioner was correct to submit that his Honour conducted something akin to an administrative law review in making the findings he did in relation to the Notice. We are mindful of the fact that his Honour approached the matter on the (erroneous) basis that the failings of the Notice significantly undermined the capacity of the respondent to receive a fair hearing as to the allegations made against her. However, we do not consider that his Honour approached that question as part of a consideration as to whether there was a procedural failure which may be weighed in the balance with all other relevant considerations in the (merit) review but, rather, as a form of judicial review (in which his Honour made, as has been found, an erroneous finding that there was a breach of the provisions of s 181D(3)(a) of the Act). This conclusion must follow from the use of the words "taints the totality of the process surrounding the issue of the notice and the consideration of the matter by the Commissioner" by his Honour.

[28] More significantly, his Honour found that the "order made by the respondent was fundamentally flawed", and that "in [those] circumstances" it was harsh, unjust and unreasonable that the order "which the respondent purported to make should be considered as having an effect [of] removing [the respondent] from the police force" (our emphasis). This conclusion by the trial judge must be taken as going to the question of the validity of the order made and, consequentially, whether the order had legal effect.

[29] We note that there was a disclaimer in the first instance decision to the effect that the above observation did not go to the question of whether the order was a 'nullity'. However described, there can be no doubt his Honour pronounced upon whether there were valid orders made and, therefore, whether they were effective. In this context, the trial judge found that the orders were harsh, unjust or unreasonable because they had continued having operation when they were, in truth, invalid and ineffective.

[30] It represents appealable error, as a review of that character is not open under Div 1C of Part 9 of the Act, although, as earlier observed, the failure associated with the issuing of the Notice may ground a challenge to the removal on procedural grounds.

89 Thus, in review proceedings the Commission is to consider complaints about alleged failure by the Commissioner to comply with the requirements of the Police Act, including notices to show cause, as part of the fabric of the merit review rather than separately as complaints as to the "validity" of the order made.

90 As the respondent correctly submitted, the significance of procedural issues raised will vary depending upon the gravity of the failure and its effect on the opportunity for the police officer to receive a fair hearing when all the relevant circumstances of the particular case are taken into account: see Reid-Frost at [11](e) and (f). In my opinion, no procedural issue arises in this case that is of such significance that it rendered the process of dealing with the applicant's misconduct invalid.

91 I would also refer to what the majority in Reid-Frost stated at [21] and [24]:

[21] Both parties to the proceedings accepted the formulation by Boland J, President, in Hosemans v NSW Police (No 3) [2005] NSWIRComm 161 ('Hosemans (No 3)') as to the nature of the obligation reposing in the Commissioner to give reasons under s 181D(4). We also agree with that formulation and consider that, essentially, the similar obligations repose in the Police Commissioner to provide "a Notice setting out the grounds on which the Commissioner does not have confidence" under s 181D(3)(a). That is, the grounds contained in a notice issued under s 181D(3)(a) must set out the essential bases for the Commissioner not having confidence in the officer's suitability in such a manner that they are sufficiently comprehensible to the police officer on whom they are served as to enable that person to understand those grounds and respond to them in a written submission as contemplated by s 181D(3)(b).

...

[24] In this matter, the written submission provided by the respondent to the Commissioner on 21 April 2008 demonstrated that the Notice was sufficiently comprehensible to the respondent and enabled her to, adapting the words of Boland J in Hosemans (No 3), "mount a coherent and comprehensive challenge".

92 As I have already indicated, I am satisfied the "essential bases" of the applicant's misconduct was set out in the show cause notice in such a manner that they were "sufficiently comprehensible" to the applicant as to enable him to understand the nature of the misconduct and respond to it coherently and comprehensively.

Failure to provide applicant with documents relied upon in making Order

93 There are two matters, however, that I need to specifically address. The first is in relation to the Cole incident. The applicant was advised on 25 November 2011 that the file in relation to that matter, although mentioned in the Investigator's Report, was not being referred to the IRP. Then on 30 March 2012, when the applicant was served with the show cause notice, he saw that it did refer to the Cole incident. He queried this and was advised it was included in the Notice "by way of previous history". The applicant was not provided with a copy of the contents of the file relating to the Constable Shaun Cole issue before responding to the Investigator's Report about the Facebook Chat investigation. This was despite the "Professional Standards Information IRP Outcome - s.173 Reviewable Action for Subject Officers", requiring it to be provided in order that the applicant might properly deal with the show cause notice. The applicant did not receive a copy of that file until 3 July 2012, that is, after the present proceedings had commenced.

94 The second matter concerns an Investigator's Report prepared by Inspector Dean dated 7 September 2011 regarding the Lodge incident. The copy provided to the applicant on 23 November 2011 was redacted; there were gaps in the report purportedly to protect the identity of the complainant.

95 It was contended for the applicant that the failure to provide him with a copy of the file regarding the Cole incident prior to him receiving the show cause notice and the provision to the applicant of a redacted Investigator's Report constituted invalidities.

96 I have read the applicant's response to the show cause notice. It deals comprehensively with the Cole incident, even to the extent of providing information that prior to the incident the applicant had a number of "run-ins" with Constable Cole including one in which Cole refused to carry out a direction from the applicant. In my opinion, the applicant dealt coherently and comprehensively with the Cole incident in his response and the failure to provide the Cole file from the Investigator's Report did not prejudice the applicant.

97 In so far as the redacted Investigator's Report is concerned relating to the Lodge incident, I have read the un-redacted version that was tendered into evidence and in comparing the two versions I am unable to see any prejudice to the applicant for the reason that the copy he received was redacted.

Interim Management Plan

98 The applicant submitted he was informed on 13 March 2012, prior to receiving the show cause notice, that he would be placed on an Interim Management Plan and reduced in rank to Senior Constable. It was submitted this was procedurally unfair.

99 In his affidavit the applicant deposed:

On the morning of 13 March 2012, I had the following conversation with A/Superintendent Leanne McCusker:

McCusker:"The IRP [Internal Review Panel] met on 8 March and decided on your punishment. You are going to be demoted to Senior Constable but it will not be taking effect until after any appeal processes take place".

"There will be an Interim Management Plan to put you back on the truck (by which I understood her to mean I was to be part of a general duties crew manning a police van) and you will not be undertaking any supervisor duties at all".

Me:"The earlier management plan is finished?"

McCusker:"Yes it has finished and we are going onto this one now".

Later that day, I was handed a copy of the Interim Management Plan stating that it commenced that day... Amongst other things, the Interim Management Plan stated that the complaint, the subject of the investigation had "been sustained".

100 There was no evidence from the respondent to contradict this version of events. The Interim Management Plan also indicated that management action against the applicant was to demote him to Senior Constable Level 6.

101 Whilst the Interim Management Plan indicated that the strategies outlined in the Plan were interim in nature and did not represent the final management plan, I do not understand how the Plan was able to indicate that the complaints in relation to the three incidents (Chat, Cole and Lodge) were sustained and the decision had been taken to demote the applicant in the absence of a show cause notice being provided to the applicant and the opportunity given to him to respond to the complaints against him in accordance with the statutory procedure laid down in s 173 of the Police Act. It demonstrates that a decision to take reviewable action by demoting the applicant was made without him having proper notice of the complaints of misconduct or having the opportunity to make his defence.

102 But for the fact that a show cause notice was later served on the applicant and he was given the opportunity to respond, the Interim Management Plan was a denial of natural justice. As it was, the Plan pre-empted the final outcome and, in my opinion, raises the spectre of the respondent having pre-judged the outcome.

103 In my view, any decision to implement an Interim Management Plan, if one be necessary, cannot sustain a complaint of misconduct and impose reviewable action under s 173(2). Indeed, the Plan should not even foreshadow whether reviewable action will result because the officer to whom it is directed has not been given notice that such action is even being considered.

104 Of course, what saves the respondent from having the whole disciplinary process and Order declared invalid is that the applicant was not, in fact, demoted under the Interim Management Plan. However, I must say the respondent's action in assigning the applicant to ride as part of a crew in a police van, with the consequential humiliation suffered by the applicant, bordered on constructive demotion.

Delay

105 The Notice referred to in s 173(5)(a) of the Police Act was served on the applicant on 30 March 2012, some nine months after the Lodge incident occurred. No satisfactory explanation for this lengthy delay was provided. All that was offered was that the Police Force is a large organisation and it was necessary to ensure the applicant was afforded every opportunity to deal with the complaints that had been made against him. But I note this: it was four months between when the complaint was made by Constable Lodge and when the applicant received the Investigator's Report into the incident; the applicant responded in three weeks; then it was a further four months before the applicant was served with the s 173(5) Notice and a further six weeks before the Order was made.

106 The delay in dealing with the applicant was inordinately long; it was highly disproportionate to the issues that were required to be investigated and unfair against the applicant by causing him anxiety and stress. It would also appear from the evidence that the respondent failed to meet its obligations under the procedure adopted by the Police Force for dealing with reviewable action matters of advising the applicant of the delay and the reasons for it.

107 Notwithstanding my conclusions regarding delay I am not of the opinion that the delay was so gross or prejudicial as to render the disciplinary procedure, or the Order that resulted, invalid.

Whether the applicant's actions constituted misconduct

108 The applicant contended that in assessing whether his actions amounted to misconduct the Commission should only consider the Lodge incident and that the other two incidents are only relevant to the question of penalty.

109 Section 173(2) enables the respondent to make a reviewable action order that certain action, including demotion, may be taken with respect to a police officer who engages in "misconduct". Section 173(5)(a) provides that before making the order the respondent must cause to be served on the police officer a notice that identifies the misconduct (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order.

110 The Notice in this case makes it clear that the relevant misconduct was constituted by the three incidents, namely, the Chat incident, the Cole incident and the Lodge incident. It is clear from the notice that the respondent regarded the applicant's actions in the three incidents as constituting a course of conduct that amounted to misconduct. Under the heading "Consideration" it was stated:

It appears that you do not hold yourself accountable to the standards of behaviour that is expected by the NSW Police Force. Rather, it depends on how you perceive the circumstances you find yourself in, as to how you believe you should act. This attitude has prevailed despite being strongly advised by not only myself on more than one occasion, but also by the Region Commander, that the NSW Police Force expects police officers to abide by the Code of Conduct and Ethics and the Statement of Values.

You have continued to display poor decision making ability as to how you conduct yourself as a Sergeant. You have repeatedly failed to accept that you have let yourself and your colleagues down by continuing to behave in a manner that does not comply with the NSW Police Force Code of Conduct and Ethics and the Statement of Values. Despite management action you have failed to grasp the importance of a supervisor's professional relationship with other police. Nor does it appear you understand what a supervisory position means within a range of contexts, in particular when you deal with junior staff members both on and off duty. You have been given ample opportunity and support to understand and fulfil your responsibilities.

In all the circumstances, I consider there are grounds upon which it could be concluded that your conduct in relation to these matters has fallen well below the standard expected by the community and the NSW Police Force of a sworn officer. (emphasis added)

111 Whilst the applicant claimed he did not receive the Cole file from the Investigator's Report prior to responding to the notice to show cause, I have already decided that point.

112 The actual terms of the Order, however, do tend to confuse matters. It states:

The order results from an investigation undertaken pursuant to s 8A of the Act referable to c@ts.i LMI 1103491 [Lodge Incident].

...

I make the order set out below having regard to your conduct as follows:

...

113 The Order then proceeds to address the Lodge incident. It is not until that part of the Order headed "Consideration" that the respondent addresses the other two incidents. Nonetheless, despite the deficiencies in the structure and wording of the Order, it is apparent when one reads the whole of the Order that the misconduct about which the respondent was concerned encompassed the three incidents that the respondent regarded as a course of conduct deserving sanction. In the Consideration it was stated:

The current complaint while in yet another context, still directly relates to the other two complaint issues. It again demonstrates your lack of understanding of your role and how your actions, whether on or off duty undermine your ability to be a supervisor. It is not the chat itself, but the inappropriateness of what you say and who you are saying it to. In all three complaints, it has been your actions that have let you down. You have not conducted yourself like a supervisor. You have not realised what you were doing was wrong and while you regret what has occurred, it still appears from your continuing conduct and parts of your Response that you have not yet grasped why your conduct was not acceptable. (emphasis added)

114 Moreover, as I have explained, the applicant had notice that it was the three incidents about which the respondent was concerned.

115 I will consider whether the three incidents constituted a course of conduct that amounted to misconduct. It is clear that the incident that triggered the review process was the Lodge incident. The other two incidents become relevant because the respondent considered the Lodge incident manifested the type of conduct about which the applicant had previously been reprimanded.

116 "Misconduct" is not defined in the Police Act. One must, therefore, consider the purpose of the legislation and the context in which the term "misconduct" is used: s 33 of the Interpretation Act 1987; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408. See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales v Australian Workers' Union, New South Wales [2004] NSWIRComm 85; (2004) 135 IR 56 at [44].

117 Further, as Smithers and Evatt JJ observed in North v Television Corporation Ltd (1976) 11 ALR 599 at 608:

It is of assistance to consider the expression 'misconduct' by reference to the subject matter to which it is related and the context in which it appears. ...

118 The purpose of Divs 1 and 1A of Pt 9 of the Police Act is plainly to provide the statutory basis for the Police Commissioner to exercise disciplinary powers in relation to police under his command where a police officer has engaged in misconduct or unsatisfactory performance, to provide for a disciplinary process to be followed and to allow review in certain cases of the Commissioner's decision to discipline an officer.

119 The Commissioner may take reviewable or non-reviewable action against a police officer who has erred. The action may be that set out in s 173(2)(a)-(d) or action that is referred to in Schedule 1 to the Police Act (for a discussion regarding the somewhat confusing nature of s 173 see Commissioner of Police v Skelly [2010] NSWIRComm 18; (2010) 192 IR 195).

120 It will be noted that the actions the Commission may take reflect misconduct the gravity of which is less than that which might attract removal from the Police Force: s 173(2)(d); cf Divs 1B-1D of Pt 9.

121 In Skelly the Full Bench observed at [36] that the nature of the orders available under s 173(2) is reflective of more serious actions commonly associated with disciplinary actions as opposed to actions available under Schedule 1, which, by and large, represented milder forms of corrective or rehabilitative action. The Full Bench stated that the essential difference between non-reviewable actions and those taken as reviewable actions was the intention, in the former case, to correct or adjust behaviours, where misconduct had occurred, without any intention to engage in a strictly punitive, disciplinary approach.

122 In Skelly at [48] the Full Bench stated:

[48] ... The extrinsic material does, however, provide substantial support for the appellant's submission that a distinction is to be made between reviewable action and non-reviewable action, with the former to be regarded as a sanction directed to more serious forms of misconduct and the latter being directed to rehabilitating the officer or to the taking of remedial action rather than have the objective of punishment.

123 The nature of the misconduct then, falls between the less serious that might attract a reprimand or counselling or restricted duties (see Schedule 1) and the more serious that might attract removal from the Police Force under s 181D.

124 The applicant relied on the definition of misconduct provided by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200-201 where his Honour stated:

In the 1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of Review, Division of Employment Security, Department of Labor and Industry 128 A 2d 20 (1956). In that case, the New Jersey Superior Court held that "misconduct" does not mean mere mistakes, errors in judgment or in the exercise of discretion or minor but casual or unintentional, carelessness or negligence. It did not mean mere inefficiency, unsatisfactory conduct, failure of performance as a result of inability or incapacity inadvertent in isolated instances or errors of judgment which were not made in bad faith or some other ingredient. Numerous other recent cases are cited to support the proposition that, in the United States, "misconduct" generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Similar approaches to the meaning of the word "misconduct" have been taken in Australia, outside the context of professional discipline: see, eg, O'Connor v Palmer (No 1) (1959) 1 FLR 397.

The primary dictionary meanings confirm that this is also the way "misconduct" is used in everyday speech.

125 Subject of course, to the statutory context in which I am required to consider the question of misconduct, I am prepared to accept Pillai v Messiter (No 2) helpfully distinguishes between what is and what is not misconduct. Misconduct does not mean, "mere mistakes, errors in judgment or in the exercise of discretion..." or "unsatisfactory conduct", but rather "wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts." I would not place too much weight on the word "obstinate", however. If the misconduct was reckless or careless indifference I think the test in Pillai v Messiter (No 2) would be met.

126 I turn to whether the three incidents constituted a course of conduct. In relation to the Chat incident, the relevant complaint was that the applicant used the Police Chat System to send offensive, inappropriate and degrading communications to other police officers and that he "displayed attitude and apparent disrespect towards colleagues" that included:

The Commander - where he made comments to other serving officers (such as just another whinge from him during a meeting) (sic),

Subordinates - where he asks a correspondent are you going to punch her (pregnant colleague) in the face or in the belly,

Aboriginal Liaison Officers - lazy fucks

Criticism of Corporate Systems CMF (so stupid, all I do is cut and paste)

127 The Warning Notice referred to the applicant having engaged in "inappropriate sessions of instant messaging ... involving offensive, sexual and inappropriate conversations ..." The applicant was warned that his conduct:

[H]as fallen short of the acceptable standards expected by the NSW community and the NSW Police Force. You have failed to behave in a way that upholds the values of the NSW Police Force. Any future failures will be taken extremely seriously ...

...

You should very clearly understand that any further unsatisfactory conduct may result in further management action, which may entail consideration of reviewable action. ...

128 In relation to the Cole incident the Investigating Officer found that:

By contributing and allowing for a conversation to take place, that adversely discussed the work practices of the complainant, with other staff members, is clearly not appropriate, especially as a supervisor. In addition, SO McDiarmid is currently on a conduct management plan and quite clearly has not adhered to the issue of Daily Compliance of Supervision Duties, which is a requirement he is expected to address and improve on in the plan.

129 A further charge sustained against the applicant in relation to the Cole incident was that:

Whilst discussing the work practices of the complainant in an adverse way, SO McDiarmid was heard to use offensive language that described the situation and was overheard by the IPC. The IPC found it offensive and although the complainant was not present to hear McDiarmid say "That's fucked", in reference to the complainants (sic) work practices, the complainant felt harassed when informed by the IPC.

130 It was subsequently considered upon a review of the Investigator's Report that the harassment finding was misconceived, "however there are certainly elements of bullying and ongoing issues". The consequence was that the Conduct Management Plan applicable to the applicant as a result of the Chat incident was "extended to the full 12 months".

131 The Cole incident was quite minor and at the time the respondent treated it as such. The incident assumed a higher profile because the applicant was already the subject of a Conduct Management Plan for making inappropriate comments about other police officers.

132 Whilst it was not appropriate for a supervising Sergeant to join in the disparagement of what Constable Cole did, the applicant's remark could not be regarded as offensive or malicious or intentionally meant to denigrate Constable Cole. It was an observation made in an unguarded moment in an informal environment without proper thought having been given to the applicant's responsibility to ensure less senior police officers were not made the subject of ridicule or derision.

133 In relation to the Lodge incident, the Investigator sustained the following matters against the applicant:

the applicant breached point 4 of the Code of Conduct and Ethics;

the applicant discussed the criminal offence of Lodge with another officer attached to the same Command;

the applicant's conduct was inappropriate and unprofessional, completely disregarding any confidentiality that should have been afforded to Lodge;

the applicant's behaviour failed to display respect, courtesy and fairness required to be afforded to everyone pursuant to point 4 of the Code of Conduct;

the applicant was evasive when answering questions asked of him in the directed interview in an attempt to minimise the inappropriateness of his actions;

the applicant's conduct was aggravated by the fact that the applicant was a supervising Sergeant;

the applicant continued to be of the belief that he had done nothing wrong and continued to show no remorse for his conduct.

134 The consequential Order was based, inter alia, on the following considerations:

the applicant's misconduct had fallen below that which was expected by the community and the NSW Police Force of a sworn officer;

the applicant's continuing behaviour demonstrated a lack of leadership and understanding of the role as sergeant;

the applicant's conduct demonstrated his lack of understanding of his role and how his actions, whether on or off duty undermined his ability to be a supervisor;

it was not the chat itself, but the inappropriateness of what he says and who he is saying it to;

the applicant had not realised what he was doing was wrong and while he regretted what had occurred, it still appeared from his continuing conduct and parts of his Response that he had not yet grasped why his conduct was not acceptable;

the applicant had not shown the qualities that were expected of a sergeant of police.

135 The common thread running through the respondent's concern in relation to the three incidents was that the applicant, a Sergeant of police, through his communications with junior officers, demonstrated a lack of courtesy and respect for colleagues and a consequent failure to meet the standard of behaviour required of a Sergeant acting in a supervisory capacity. In relation to the Lodge incident there was an additional concern, namely, that the applicant had not learned from the earlier admonitions regarding his conduct because he did not believe he had acted inappropriately, a matter said to be evidenced by a failure to show any genuine remorse or contrition for his conduct. All this was said by the respondent to have demonstrated a lack of understanding by the applicant of his leadership role. I find that the applicant engaged in a course of misconduct.

136 This case demonstrates the greater risk of private exchanges over the Internet becoming public than was ever the case with private spoken conversations. Exchanges over 'Facebook' and other social media appear to have an increasing likelihood of surfacing publicly at some later time, much to the embarrassment or humiliation of those who engage in such activities.

137 However, this is not simply a case of a police officer engaging in private conversations over the Internet with friends and being punished because the conversations were work related and involved criticism and derogatory remarks about other police officers and discussions about the criminal conduct of another officer. It is also not a case about the respondent seeking to prevent or stultify police "gossip" or the ordinary day-to-day banter between police regarding what occurs at work, including about the criminal conduct of other police. I think that would be about as successful as Prohibition and counter-productive.

138 The case is about a Sergeant of police in a supervisory position inappropriately communicating with junior officers. The exchanges were disparaging of other police officers and in the Lodge incident involved an unseemly guessing game about the identity of the officer who committed a criminal offence. One would not expect this sought of conduct from a police Sergeant, regardless of the fact that the communications were with friends.

139 The friends were police officers junior in rank to the applicant. A police Sergeant is never free of the burden that goes with that highly respected rank, including the significant responsibilities the Sergeant carries in respect of those less senior officers. The position required the applicant to provide junior officers with guidance and assistance; to be a peer support; to explain Police procedure to more junior officers; to counsel a more junior officer if they were doing something which was against Police procedure; to monitor the procedure and standards required of personnel to ensure that people were in compliance with that procedure; and to monitor the ethical standards and integrity of the command.

140 A police Sergeant is not free to change, chameleon-like, from supervisor to friend at the end of a shift and to disregard the professional working relationship that exists between the Sergeant and the Constable or with any other rank for that matter. In this regard I agree with Superintendent Freudenstein's description in his affidavit of the importance of the role of Sergeant and the difficulties that will be encountered if the Sergeant fails to act appropriately:

A sergeant supervises a team of perhaps 10 or dozen officers and is responsible for their performance management plans and also the supervision of their discipline. A sergeant is generally unmonitored in their day to day activities, and a high standard is expected of them in the way they perform their duties as seen by their team members. It would be difficult for a sergeant to discipline a junior officer for matters of poor conduct in breach of policy if, in their day to day engagements with those officers, they did not have a reputation of meeting those standards themselves.

A sergeant needs to have the credibility to take on their team members if there is a need to rein in their conduct or behaviour. It is a necessary aspect of support for the chain of command within the NSW Police Force that sergeants have the respect of those they supervise.

If junior police officers were sexually harassed or have malicious rumours spread about them, in particular females, they should be able to seek advice and some surety that action would be taken in reporting their issues to a supervisor. I do not believe an officer, particularly a junior female officer, would report sexual harassment or malicious rumours to Sergeant McDiarmid if they knew or heard about what he says about females and how he participated in a guessing game with a junior female officer about another junior female police officer who had committed an offence.

141 It may be accepted that no question of harassment, sexual or otherwise, arises in any of the three incidents. But the example given by the Superintendent is not without substance. It may well be that Constable Lodge, for one, would feel less comfortable and less confident with the applicant as her supervisor knowing he engaged in the guessing game about her criminal offence with Constable Walsh.

142 It was contended by the applicant that it was common knowledge in the Redfern LAC on 17 June 2011 that Constable Lodge was the officer who urinated on the War Memorial and that it was not he who breached any confidentiality. It was further contended that a person who committed a criminal offence had no right to confidentiality and no right to freedom from embarrassment regarding the offending conduct. Therefore, when reduced to its essentials there was no substance in Constable Lodge's complaint.

143 I do have reservations about Constable Lodge's complaint. It was not made until about five weeks after she learned of the Facebook exchange between the applicant and Constable Walsh. There was no satisfactory explanation for this delay (one inference is that she was pressed into making the complaint by senior officers, but there is insufficient evidence to support this). Nevertheless, Constable Lodge said she was upset and distressed on learning about the Facebook exchange. She said it was "unprofessional and extremely hurtful".

144 Despite the delay in making a formal complaint I can accept that Constable Lodge was distressed and hurt by the fact that fellow officers would make her the target of gossip. Her offence undoubtedly deserved censure and I note that the applicant did rightly condemn it and did not make a joke of it. Moreover, I accept there was no breach of confidentiality by the applicant.

145 However, by the evening of 17 June, and before the Facebook exchange, the applicant knew Constable Walsh would face court over the offence. It was inappropriate in those circumstances for the applicant, a supervising Sergeant, to engage in a puerile guessing game with a junior police officer as to the identity of the offender. Notwithstanding the opprobrium that may rightly be associated with Constable Lodge's conduct, she was still a police officer who the applicant should have realised would most likely be deeply humiliated by what she had done and have to bear that humiliation in a tough work environment.

146 Constable Lodge had to expect her offence would be the subject of talk amongst officers. But if Constable Lodge was to stay in the Police Force there had to be a limit to such talk and it could not be allowed to descend into harassment. As a Sergeant of Police the applicant would have had a responsibility in that respect.

147 The applicant, in my opinion, should have understood that punishment was a matter for the courts and in the interests of fairness that he would share an obligation to ensure Constable Lodge was not unfairly tormented within the LAC by gossipmongers. He compromised that role by himself engaging in gossip.

148 Even if there was no risk of Constable Lodge being harassed, the fact remains that the applicant acted inappropriately in engaging in the Facebook exchange with Constable Walsh. It was poor judgment for the applicant to make Constable Lodge's predicament the subject of Facebook gossip. As the applicant himself conceded, his actions had the effect of causing Constable Lodge undue stress and demonstrated a lack of respect for her privacy. He was remorseful for those consequences. But they would not have arisen if the applicant had taken the time to consider whether engaging in the Facebook exchange with a junior officer might have the effect of undermining his ability to perform his duties as a Sergeant of police.

149 The applicant also accepted that the content of his chats over the Chat System was inappropriate and offensive. The defence that he did not understand the communications were subject to audit indicates a degree of naivety one would not expect to find in a police Sergeant. But regardless of that fact, the exchanges over the Chat System indicate a lack of appreciation by the applicant of what was expected of him in the senior position he occupied.

150 It must be evident to the applicant that if he discovered similar exchanges over the Chat System by a more junior officer that referred to a superior officer (perhaps the applicant himself) as "whingeing" in the course of carrying out his duties, and that was disparaging of other officers in the manner engaged in by the applicant, that a disciplinary response would have been necessary.

151 I am led to conclude that the course of conduct engaged in by the applicant was misconduct, not in the sense of premeditated or intentional purpose, but rather by careless indifference to the consequences of his actions. The applicant knew, by reason of his previous conduct and the Conduct Management Plan, that at the time of the Lodge incident the respondent had issues with him being disrespectful to work colleagues over the Chat System; that the respondent had issues with him making critical and disparaging remarks about other police officers to junior officers; and that the respondent was concerned that he displayed attitude and apparent disrespect towards his colleagues.

152 Having been reprimanded twice for displaying a lack of courtesy and respect towards other police officers, one would have expected the applicant to think twice about showing, as he conceded, a lack of respect for Constable Lodge and causing her hurt. That he believed Constable Lodge would not find out does not make such conduct by a Sergeant of police acceptable.

What is an appropriate penalty?

153 The penalty imposed by the respondent was demotion to the rank of Senior Constable Level 6, one rank lower. Such an Order was open under s 173(2)(a) of the Police Act.

154 The rationale for this particular sanction was the respondent's view that the applicant's misconduct demonstrated that he lacked understanding of his role and responsibilities as a Sergeant and, therefore, did not deserve that rank.

155 The applicant submitted the penalty of demotion was harsh, unjust or unreasonable for what may be summarised as the following reasons:

(a) the Facebook exchange was private, outside work hours and with a friend. It concerned criminal conduct that deserved condemnation;

(b) there was an inference available that Constable Lodge only made the complaint because she was pressed into doing so;

(c) that Constable Lodge committed the offence was well known and the applicant did not breach any confidentiality;

(d) little weight should be given to a complaint that Constable Lodge was distressed by the Facebook exchange in circumstances where she had engaged in criminal conduct;

(e) it was appropriate that there was discussion amongst police officers about Constable Lodge's criminal conduct otherwise a ban on such discussion would undermine the confidence of the public in the integrity of the Police Force;

(f) no other officer who participated in gossip about Constable Lodge has been disciplined;

(g) the applicant suffered humiliation in being assigned as part of a truck crew; his income will be reduced; he has suffered distress and anxiety, anger and irritability; and has a feeling of being isolated.

156 That the Facebook exchange was private, outside work hours and with a friend is not to the point. Apart from the experience that Facebook exchanges cannot be guaranteed as remaining private and should be approached on that basis, the respondent's complaint was about a senior police officer gossiping with a junior police officer about the predicament of another junior police officer who had committed a criminal offence and the undermining effect or potential effect on the applicant's role. That role included providing junior officers with guidance and assistance; counselling a more junior officer if they were doing something which was against Police procedure; monitoring the procedure and standards required of personnel to ensure that people were in compliance with that procedure; and monitoring the ethical standards and integrity of the command.

157 As to the inference that Constable Lodge only made the complaint because she was pressed into doing so, I have already addressed this issue. As I have stated, it is a matter that concerns me, but there is insufficient evidence to support the inference. In any event, even if the inference was available I am not sure it would materially affect the conclusion that the applicant engaged in misconduct.

158 In relation to the Facebook exchange it was stated in the Order that "If you did not pass on the information there would not have been the subsequent conversations amongst the junior officers that led to the investigation." If the statement meant that the applicant breached some confidentiality or that he was the one who made it known that Constable Lodge was the offender, then it was wrong. The identity of the offender was well known at the Redfern LAC on 17 June 2011. Regardless of the Facebook exchange, there would have been discussion amongst junior officers about the incident.

159 However, the above statement in the Order may be understood to mean that if the applicant had not engaged in the Facebook exchange Constable Lodge would not have been approached by a number of officers on 19 June informing her of the Facebook exchange and she may not have made the complaint that led to the investigation.

160 I have earlier dealt with the proposition that little weight should be given to a complaint that Constable Lodge was distressed by the Facebook exchange in circumstances where she had engaged in criminal conduct and nothing more needs to be added. I have also earlier dealt with the contention that it was appropriate there was discussion amongst police officers about Constable Lodge's criminal conduct.

161 It would seem to be correct that other than Constable Walsh, no other officer who participated in gossip about Constable Lodge was disciplined. The complaint, however, the respondent was required to deal with was that directed against the applicant and Constable Walsh. The complaint against the applicant had a particular quality; he was a Sergeant of police responsible in the ways I have identified for the conduct of junior police. By engaging in the Facebook exchange he compromised his role. The applicant's conduct was not like that of other officers who simply discussed Constable Lodge. No other officer, as far as I am able to ascertain, could be regarded as culpable to the extent the applicant was.

162 The defence of humiliation, loss of income, distress and anxiety are matters that should properly be taken into account in determining whether demotion was harsh, unjust or unreasonable. This brings me to the requirement on the Commission under s 175(4) to have regard to (a) the interests of the applicant, and (b) the public interest (which is taken to include the fact that the Commissioner made the Order pursuant to s 173).

163 The applicant is 33 years old. He has been a member of the Police Force for 12 years. He attained the rank of Sergeant in October 2009. He struck me as intelligent and articulate and a person of independent mind. I accept his evidence regarding the impact of the demotion. Whilst the applicant still has his Sergeant stripes, practically speaking he has already been demoted and this has had a significantly adverse effect on his self-esteem and state of mind. He is concerned that if he loses his stripes his career prospects in the Police Force will be permanently damaged.

164 On the other hand, the applicant is guilty of misconduct. The respondent is entitled to deal with that misconduct by way of reviewable action and the Commission is required to give weight to the fact that the Commissioner has decided, in his discretion, to impose a particular penalty.

165 I have given earnest consideration to the Order and in all the circumstances I consider demotion is not harsh, unjust or unreasonable. I have considered the alternatives, in particular those that are available under Schedule 1 of the Police Act including the option of a warning or reprimand. However, the applicant has already been reprimanded twice and a third reprimand would seem to be somewhat hollow.

166 I am concerned that the applicant in his heart does not believe he has engaged in misconduct. Being objective as I am able I have come to a different view. Having regard to the nature of what is a paramilitary style Police Force that depends heavily on a chain of command for its effective operation, it is imperative that senior ranks of the Police Force have confidence in their Sergeants to properly fulfil their role. In this case the confidence is lacking because of the applicant's misconduct.

167 Accordingly, demotion is an appropriate penalty and will bring home to the applicant the need to adjust his mindset about the role of Sergeant. However, having regard to all of the circumstances I do not accept that demotion should be open ended. I do not consider that the applicant's misconduct to have been so grave that he be demoted to Senior Constable indefinitely. Pursuant to s 177(1)(b) of the Police Act I propose to revoke the Order and order that the Interim Management Plan, which was imposed on the applicant on 13 March 2012, constitute a Conduct Management Plan that will apply for a period of six months from the date of this decision. Subject to the satisfactory completion of that Plan by the applicant he shall be reinstated to the rank of Sergeant.

Order

168 The Commission makes the following orders:

(1) The Order made on 14 May 2012 pursuant to s 173(2) of the Police Act 1990 in respect of Sergeant Michael McDiarmid is revoked.

(2) The Interim Management Plan imposed on Sergeant McDiarmid dated 13 March 2012 shall constitute a Conduct Management Plan including demotion from Sergeant to Senior Constable Level 6.

(3) The Conduct Management Plan referred to in Order (2) hereof shall apply from the date of this decision for a period of six months.

(4) Upon satisfactory completion of the Conduct Management Plan by Senior Constable McDiarmid he shall be reinstated to the rank of Sergeant.

(5) In the event of any dispute regarding satisfactory completion of the Conduct Management Plan liberty is given to either party to refer the dispute to the Commission on reasonable notice.

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Decision last updated: 06 September 2012