T9986 - 27 June 2002
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TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T10313 and T10316 Industrial Relations Act 1984 Andrew Scott Gunston and Commissioner of Police
Industrial dispute - alleged unfair termination of employment - off duty behaviour - no valid reason for termination - re-employment ordered REASONS FOR DECISION (1) On 4 January 2002, Andrew Scott Gunston (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Commissioner of Police arising out of the alleged unfair termination of his employment. [2] The matter was set down for hearing at "Lyndhurst", 448 Elizabeth Street, North Hobart at 9.30am Wednesday 1 May 2002. [3] When this matter came on for hearing, Mr P Tree, together with Mr C Green, appeared for the applicant. Mr M Miller, together with Mr F Ogle, appeared for the Commissioner of Police. [4] Mr Tree commenced by making application for the hearing to be in private, pursuant to s.26 of the Act. This application was strongly opposed by Mr Miller. In a decision issued on transcript, the application was denied. Reasons were issued subsequently in a decision dated 10 May 2002. [5] The applicant at the time of his dismissal was a sergeant in Tasmania Police. He is 38 years of age and had been in the police service for 22 years. He has not been in any employment external to the police service. Following graduation from the Police Academy, he was sworn in as a constable and subsequently served in a range of posts and roles throughout Tasmania. This included three years in the uniform branch in Queenstown during the late eighties. [6] In October 1998 Mr Gunston was promoted to Sergeant and transferred to the position of Officer-in-Charge, Currie, King Island. Following a domestic issue involving his then de facto partner, Mr Gunston volunteered for an immediate transfer off the Island. He successfully applied for the position of Officer-in-Charge at Queenstown and commenced this role in February 2001. [7] The Queenstown station is normally manned by between five to seven constables, together with another sergeant in addition to the officer-in-charge. Mr Gunston was also responsible for the supervision of the constable stationed at Strahan. At least for the first few months Mr Gunston was, as a consequence of his specialist qualifications, responsible for the police rescue vessel located at Strahan. The District Inspector [Inspector Bonde] was also based at the Queenstown station but did not have a day-to-day operational role within the station. [8] During September 2001 Mr Gunston had been on leave, returning to work on or about 8 October. It was during this week that Mr Gunston initiated an application for a transfer away from Queenstown. [9] At the end of day shift on Friday 12 October Mr Gunston went to the Empire Hotel with the intention of having a counter meal and a few drinks. He was off duty and not in uniform. [10] Later in the evening he met up with a Ms L. They had a few drinks and played eight ball. At one stage they were seen to engage in a passionate kiss. Both were clearly under the influence of alcohol although some way short of being paralytic. [11] At approximately 1.30am Mr Gunston and Ms L moved to an area known as the coffee lounge. This area, located up a short flight of stairs off the foyer, was in darkness, or at least the lights were switched off. The couple moved to a far corner of the lounge, a position that could only be observed by a person ascending the stairs. [12] There is little contest as to what followed next. Mr Gunston proceeded to perform oral sex on Ms L who was seated on a chair. They were initially interrupted by a Mr M, a bar attendant who came up the stairs to pick up a glass left by Mr Gunston on the stair case. Mr M did not appear overly disturbed by this discovery but did report it to Ms B, the bar and restaurant manager. [13] Ms B proceeded to the coffee lounge area and instructed them to leave in no uncertain terms. It is possible that Ms B went to the area twice within a short space of time. Although a small number of customers were in the bar at the time, none witnessed the incident. Mr Gunston and Ms L subsequently left the Empire and proceeded across the road to the Mt Lyell Motor Inn. [14] Shortly after 2.00am Ms B beckoned two on-duty police constables into the hotel. The incident was a matter of discussion between the police officers, the bar staff and the few remaining hotel patrons. No formal complaint was lodged and there is evidence that suggests that the incident was the source of some amusement. [15] It is clear that the incident, with all the embellishments that the gossip mill brings, became common knowledge in Queenstown within a short space of time. Indeed it is likely that knowledge of the incident spread beyond Queenstown. [16] Some 10 days later Mr Gunston had cause to arrest a local male citizen. It transpires that family members of the person arrested then alerted Police headquarters in Hobart of the incident involving Mr Gunston and Ms L. As they were not witnesses to the incident, one can only assume that their knowledge came from the gossip mill. [17] The Internal Investigation Unit [Internals] immediately initiated an investigation. Officers were despatched to Queenstown and a number of interviews were conducted on 24 and 25 October. [18] Acting on a verbal briefing following this initial investigation, the Commissioner of Police, Commissioner McCreadie, on 26 October, issued what is referred to as a "show cause" notice. This is reproduced in full:1
[19] Mr Gunston's 12-page response is dated 1 November 2001. The written report from Internals is dated 14 November. Both Commander Tully and Inspector Bonde, presumably at the request of the Deputy Commissioner, provided written comments on Mr Gunston's submission. These documents were not provided to Mr Gunston. [20] By letter dated 12 December 2001, served on 17 December, Mr Gunston was summarily dismissed. The notice reads as follows:2
[21] On 4 January 2002 Mr Gunston lodged an application pursuant to s.29(1A), alleging that his employment had been unfairly terminated. [22] On 25 February a local resident, Ms C, informed Queenstown Police of an incident in the mall a few days earlier. In summary, Ms C stated that she had overheard a group of youths boasting as to how they had "spiked" the drinks of both Mr Gunston and Ms L during the evening of the incident. [23] Again Internals initiated an investigation and interviewed Ms C on 26 February. The officers involved conducted some additional investigations aimed at identifying the youths involved. This proved to be unsuccessful. It would appear that the investigation did not proceed beyond this point based largely of the improbability, indeed impossibility, of other aspects of the youths' account of the incident. [24] Following representations from Mr Gunston's solicitor, Commissioner McCreadie advised that he was prepared to consider any further submissions made on Mr Gunston's behalf. Mr Gunston's solicitor forwarded further submissions under cover of letter dated 15 February. [25] By letter dated 29 April 2002 Commissioner McCreadie advised that he had determined to adhere to his earlier decision. This letter also made reference [I believe for the first time] to an incident on 27 March 2002 involving a visit by Mr Gunston to the residence of his former partner. Does the Commission Have Jurisdiction? [26] During closing submissions Mr Miller submitted that the Commission lacks jurisdiction to hear and determine an application relating to the alleged unfair dismissal of a police officer. Mr Miller's submissions are summarised as follows. [27] Prior to the enactment of the Industrial Relations Amendment Act 2000 [the 2000 amendments], police officers did not come within the jurisdiction of the Commission. They were servants, as distinct from employees of the Crown, holding office at the pleasure of the Crown. [28] The 2000 amendments expanded the definition of "employee" to include police officers other than the Commissioner of Police, the latter being deemed to be a "Controlling Authority". [29] Notwithstanding, the Commission does not have jurisdiction relating to the dismissal of the Deputy Commissioner, Assistant Commissioner, a superintendent, an inspector or other officers of police. These appointments can only be made by the Governor [see s.9, 9A and 10 of the Police Regulation Act 1898}. The Commission is not empowered to make an order requiring the Governor to reinstate a person dismissed from such office. This casts great doubt on the jurisdiction of the Commission to entertain applications from sergeants or constables, who are appointed by the Commissioner of Police pursuant to s.12 of the Police Regulation Act. [30] It is also significant that the power of the Commissioner of Police to appoint sergeants and constables is subject to disallowance by the Governor [s.12[2]]. It follows that this disallowance power would be exercisable in relation to an appointment made in order to comply with an s.31[1][b] order for reinstatement. [31] It follows, Mr Miller contended, that this tension between the two Acts is added reason for construing the provisions of the Industrial Relations Act as being limited to industrial disputes other than disputes relating to the dismissal of police officers. [32] In Lee v Fletcher the Full Court ruled that the prerogative power of dismissal vested in the Governor was not reviewable by the Police Disciplinary Board. This in turn led to an amendment which conferred a right of appeal to the Board of all police officers other than the Commissioner, Deputy Commissioner or Assistant Commissioners [see s.50D]. [33] In Saraswati v The Queen, Gaudron J. said:3
[34] Mr Miller submitted that the Police Regulation Act contains detailed provisions conferring a right of appeal for dismissed police officers. In accordance with Saraswati, this specialist board and its attendant procedures should prevail over the generalist provisions of the Industrial Relations Act. He said:4
[35] In North West County Council v Dunn the High Court addresses the issue of the generalist unfair dismissal provisions of the Industrial Arbitration Act as they relate to specific procedures and remedies in the Local Government Act. Barwick CJ observed:5
[36] In McQuillam v Commissioner for Public Employment the Full Court of the Industrial Court of SA said:6
[37] On these authorities Mr Miller contended the specific provisions of Part IVB of the Police Regulation Act should displace the generalist provisions of the Industrial Relations Act, insofar as it relates to the dismissal of police officers. [38] Section 31[2][a] of the Industrial Relations Act states:
[39] Mr Miller submitted that an order for reinstatement would be inconsistent with the specific provisions of the Police Regulation Act. [40] Mr Tree rejected the contention that the Commission lacked jurisdiction to hear and determine this matter. His submissions are summarised as follows. [41] In North West County Council, Barwick CJ said:7
[42] This, Mr Tree contended, is the exact opposite of the situation in the instant case. It is the Industrial Relations Act that has been most recently amended. In these circumstances it would be possible to construct an argument that the 2000 Amendments had the effect of destroying the power to refer an alleged unfair dismissal to the Police Disciplinary Board. If that was argued [and it is not] the rules of construction outlined in Saraswati would be invoked, no express words to reflect such an intention would be found, and the powers of the Disciplinary Board would remain in place. [43] It would be entirely wrong, however to go the next step and contend that the enactment of the 2000 Amendments reflect an intention of Parliament to somehow or other truncate the amendments so that it left the Police Regulation Act as the only avenue to seek reinstatement. [44] The 2000 Amendments reflect a clear intent on the part of Parliament to bring police officers and the Commissioner of Police within the purview of the Act in every respect. It is simply not open to read sections 29, 30 and 31 as applying to all industrial disputes other than the dismissal of police officers. Findings on Jurisdiction [45] I agree with Mr Tree that North West County Council addresses an entirely different set of circumstances to that which applies in the instant case. [46] In the former instance, the Industrial Arbitration Act had, prior to the enactment of s.99 in the Local Government Act, jurisdiction to hear applications relating to the alleged unfair dismissal of Local Government employees. The enactment of s.99[11A] in the Local Government Act introduced a set of codified rules for dealing with the dismissal of Local Government employees. It was these specialist, codified procedures [which, I note in passing, appear to be mandatory] which, the High Court held, supplanted the generalist provisions of the Industrial Arbitration Act. [47] Prior to the enactment of the 2000 Amendments, the Industrial Relations Act clearly did not confer jurisdiction on the Commission to hear and determine industrial disputes relating to police officers and the Commissioner of Police. In my view the 2000 Amendments reflect a clear intention of Parliament to change this. Section 4[c] of the Clause notes reads:8
[48] In s.3[1] "industrial matter" is defined as:
[49] In the same section "industrial dispute" is defined as:
[50] There is nothing in the Act as it now stands which enables me to conclude that industrial dispute should be read as meaning all disputes other than the dismissal of police officers. [51] In terms of Saraswati, I conclude that it was the intent of Parliament that the provisions of both the Police Regulation Act and the Industrial Relations Act apply and that it is open to the individual to choose which avenue is to be pursued. [52] I do not accept that the disallowance power vested in the Governor under s.12[2] of the Police Regulation Act works to potentially frustrate an order for reinstatement or re-employment. Section 12[2] refers to an "appointment made under the authority of this section". [53] Under the Industrial Relations Act it is clear that the Commission has power to order reinstatement or re-employment. It is equally clear that industrial matter does not extend to appointments. It follows that an order relating to reinstatement or re-employment should not be read as an order going to the matter of appointment. [54] Whilst I acknowledge the point raised by Mr Miller relating to s.31[2][a] of the Industrial Relations Act, he did not specifically take me to an "inconsistency" which might invoke this section. I therefore conclude that this section does not work to preclude the Commission's jurisdiction. [55] In conclusion I find that the Commission does have jurisdiction to hear and determine disputes relating to the alleged unfair dismissal of sergeants and constables appointed under s.12 of the Police Regulation Act. In the context of this dispute it is unnecessary for me to address the matter of police officers above the rank of sergeant who are appointed by the Governor, and I refrain from doing so. [56] Mr Miller's application is denied. The Evidence [57] Evidence was taken from the following witnesses:
[58] In addition there were a number of civilian witnesses. This case has attracted unprecedented media interest and it is a matter of some regret that the names of these witnesses have been widely publicised. As this decision will remain permanently in the records of this Commission, I have decided to refer to these witnesses by letter only. The fact that these witnesses gave their evidence in a stressful environment without the issue of summons stands to their considerable credit. These witnesses were:
[59] In the experience of this Commission, this was an extremely long case. In addition to more than 700 pages of transcript, there are probably more than 2000 additional pages of material in the form of interview transcripts, correspondence, reports, records, articles and judgements. It has all been reviewed. In this decision I have chosen to refer only to material that is persuasive in determining the final outcome. To do otherwise would lead to an unacceptable delay in completing this decision. The Incident [60] At approximately 7.30pm on 12 October Mr Gunston went to the Empire Hotel. He was off duty and out of uniform. His stated intention was to consume a counter meal, have a few drinks and play some eight ball, and that is what occurred. [61] At some stage during the evening, probably shortly after midnight, Ms L came to the Empire. She had been working across the road at the Mt Lyell Motor Inn. She had finished work at 9.00pm and then stayed on for several drinks. [62] Ms L was an acquaintance of Mr Gunston but they were not in any sort of relationship. She played eight ball with Mr Gunston as a doubles partner. Both were affected by alcohol with various assessments on the sobriety scale ranging from 6 to 8 [10 being paralytic]. After a successful game of eight ball they were observed to kiss in a manner referred to in proceedings as a "tonguey". [63] At approx, 1.30am Mr Gunston and Ms L moved separately from the bar to an area known as the coffee lounge. This is an area accessed from the foyer up a short flight of stairs. The lounge was not in use at the time and the evidence of both was that they believed it was not used at all. Subsequent evidence indicates that it was used as an overflow area during meal times. Ms B said that people should not be there after eating hours.9 [64] Mr Gunston and Ms L moved to a table in the lounge that could not be observed from the foyer or the bar. Nonetheless, there was no barrier to entry should anyone choose to ascend the short flight of stairs. The lights were off and Ms L described it as being dark. No one else was present in the lounge. [65] Whilst Mr Gunston has no specific memory of what happened next there could be no doubt that Mr Gunston proceeded to perform oral sex on Ms L who was seated on a chair. The evidence indicates that Ms L's slacks were around her ankles and her pants had been removed. Mr Gunston was fully clothed. [66] They were disturbed by Mr M, who in the course of his normal closing routine noticed a half empty glass of stout near or on the stairs leading to the coffee lounge. Upon ascending the stairs, he noticed movement in his peripheral vision. Mr M recognised Mr Gunston and Ms L in what he described as a "compromising position". The transcript of his interview by Internals reads:10
[67] Mr M agreed that he did not ask them to leave.11 He then returned to the bar and informed Ms B. [68] Ms B proceeded to the coffee lounge, switched on the light and, in no uncertain terms, demanded they leave. Ms B's evidence is as follows:12
[69] It is unlikely that either Mr M or Ms B actually witnessed the act of oral sex although they were left in no doubt as to what had occurred. There is no evidence of anyone else witnessing the incident, and indeed, that would be highly unlikely. [70] There is some conflict in the evidence as to whether Ms B went to the coffee lounge more than once. Nothing really turns on this and it is possible that Ms B made two visits in such quick succession that Ms L understood it as one visit only. Shortly thereafter Mr Gunston and Ms L left the hotel and walked across the road to the Mt Lyell Motor Inn. [71] Constable Wolfe said that he and Constable Natalie Kenshole [since resigned and moved interstate] were on routine patrol in the vicinity of the Empire at the time Mr Gunston and Ms L left the premises. They noticed Ms B waving at them through the window. [72] The two constables entered the hotel bar. Constable Wolfe's evidence is that there were two or three customers in the bar in addition to Ms B and Mr M. His evidence is as follows:13
[73] On the question of a complaint, Constable Wolfe said:14
[74] According to Constable Wolfe, the incident was a source of amusement at the Police station over the next week although there was a lack of certainty as to what had actually occurred.15 What was the status of the hotel at the time of the incident? [75] In closing submissions Mr Miller stated:16
[76] And later:17
[77] Section 13 of the Police Offences Act states:
[78] No charges have been laid against Mr Gunston or Ms L. It is not of course for this Commission to determine whether criminal conduct is involved. It is nonetheless desirable to review the evidence as to whether or not the hotel was open for business at the time of the incident. [79] Section 3 of the Police Offences Act defines a "public place" as including:
[80] The licence for the Empire Hotel authorises the sale of liquor between 5.00am and midnight on any day.18 There was some evidence during the hearing of additional flexibility in relation to opening hours although this was not particularised. [81] I have reviewed the evidence of Mr M, Ms B, Ms L, Mr Gunston, Constable Wolfe and Ms F. There are some minor conflicts in the evidence, as would be expected given the effluxion of time and the fact that witnesses had no particular reason at the time to commit this level of detail to memory. [82] Based on this review I conclude as follows. [83] The incident occurred some time between 1.30am and 2.00am. [84] There exists a practice of a few regular customers staying on for a drink after the bar had closed. There were probably two or three customers in the bar at the time of the incident. [85] The front door of the hotel was unlocked but the main lights had been switched off. [86] Last drinks had been called and the hotel was in the process of closing, if not officially closed. [87] It is unlikely that new customers would have been admitted at this time, although the evidence does not allow a definitive conclusion on this. [88] There were an unspecified number of houseguests booked in for the night. Alleged Drink Spiking [89] On 25 February 2002 a Queenstown resident, Ms C, approached the Queenstown Police Station concerning an incident that had occurred in the mall on 22 January. In summary Ms C said she overheard a group of youths boasting about how they had 'spiked" the drinks of both Mr Gunston and Ms L. [90] The Internal Investigation Unit interviewed Ms C extensively on 26 February.19 Ms C provided a quite detailed recollection of the overheard conversation and also provided a description of at least two of the youths who appeared to be the ringleaders. Ms C said she would recognise the youths if she saw them again but did not know their names. The interview concluded on the basis that Ms C was to contact Internals in the event that she saw the youths again. [91] Inspector Huxley and Sergeant Adams then proceeded to investigate this allegation. Sergeant Adams said that there were two lines of inquiry. One was to locate the youths as described by Ms C, and the other was to look at the information she actually overheard. A number of interviews were conducted with local shop owners, hotel patrons on the night of the Gunston incident, hospital staff and inquiries were made at the local Police Station. [92] It is clear from the evidence of Sergeant Adams that efforts to locate the youths ceased very shortly thereafter [probably on 27 February] on the basis that other aspects of the youths' story could not have been true.20 Sergeant Adams agreed that there had been no subsequent follow up with Ms C. [93] Presumably due to leave commitments, Inspector Huxley's written report was not completed until 18 April although his evidence indicates that a verbal report was provided in late February. His report said in part:21
[94] Inspector Huxley's evidence included the following exchange:22
[95] In closing submissions Mr Tree said:23
[96] I suspect Mr Tree is being overly harsh. I accept that policing involves the prioritisation of scarce resources. From my inexpert standpoint, I would accept that in a stand-alone investigation, the quite improbable, indeed impossible nature of some of the youths' claims, would lead to a reasonable conclusion that the police had higher priorities to pursue. I would however observe that aspects of this investigation, notably the identification of the youths, appeared to lack the same rigour that has attended all other aspects of the Gunston investigation, both pre and post dismissal. Mitigating Circumstances [97] A considerable amount of the evidence from both sides went to the issue of workload and associated stress. [98] Mr Gunston said that since arriving at Queenstown he had been subjected to a workload and off duty environment that gave rise to considerable stress. By implication, this led to the excessive consumption of alcohol on the evening of 12 October, which in turn led to behaviour, which he described as being "out of character". [99] The source of this stress can be summarised as follows:
[100] On 3 August 2001 Mr Gunston consulted Helen Spinks, a practising psychologist in Devonport. Ms Spinks provided a written report that reads as follows:24
[101] Mr Gunston expressed how he felt in the following terms: 25
[102] During the week commencing 8 October Mr Gunston approached Inspector Bonde with a request for a transfer out of Queenstown. He said that his voluntary transfer to Queenstown had been hasty and ill considered. Inspector Bonde subsequently supported this application. [103] A number of witnesses gave evidence relating to the issue of workload and stress. Their evidence can be summarised as follows:
[104] I am satisfied that Mr Gunston genuinely felt that he was under stress to the point where he had chosen to seek a transfer out of Queenstown at his own expense. Indeed he had raised the question of a transfer to Hobart with Commander Tully some time in September, prior to the formal application being lodged in October. [105] I am equally satisfied that, with the possible exception of the Strahan vessel during the first three months, Tasmania Police did not do anything in a management or policy sense, which might leave them open to criticism insofar as Mr Gunston's stress levels are concerned. [106] Stress may have been the driver that led to the excessive consumption of alcohol, but it is not an explanation or excuse for the behaviour that then followed on 13 October. Mr Gunston's Previous Record [107] Commissioner McCreadie said that in reaching his decision to dismiss Mr Gunston, his entire dossier had been reviewed. Nonetheless, the compelling or dominant issue that led to the dismissal was the incident on 13 October. Commissioner McCreadie denied that there was a cumulative factor, or that the dismissal was linked to any prior misconduct.26 [108] The show cause notice does however make reference to the dossier and to previous warnings. It is therefore necessary to review this material. [109] In 1987 Mr Gunston was informally counselled for an off duty incident at the Derwent Bridge Hotel. This involved a flippant, but inappropriate comment in the visitors' book. [110] In November 1989 Mr Gunston, in the course of conducting a random breath test on a female motorist, "used language suggestive of sexual connotations". He was subsequently subjected to a disciplinary hearing, fined and transferred to non-operational duties. He was also "warned that any future incident of a similar nature would raise his 'suitability' to remain a member of the force".27 [111] The six-month report submitted following this incident reads in part:28
[112] It would appear that he subsequently returned to operational duties and in 1991 successfully completed the senior constables and detective training courses. [113] In March 1992 Mr Gunston was convicted for a drink driving offence. [114] In August 2001 Mr Gunston was counselled in relation to a largely domestic incident that occurred whilst he was on King Island. This also involved the unauthorised use of a police vehicle after consuming alcohol. In the scheme of this case this counselling assumes some significance and is reviewed in greater detail below. [115] Throughout his career Mr Gunston also received a number of commendations, summarised below:
[116] On 7 July 2001 Inspector Bonde completed a "Performance Feedback" for Mr Gunston. Whilst this document contained a number of unremarkable comments on aspects requiring attention, it did contain a number of positive observations including:30
[117] On 21 February 2002 Internals interviewed Inspector Bonde. Relevant to Mr Gunston's performance record, the following exchange took place:31
[118] In his evidence Inspector Bonde said under cross-examination:32
[119] And later when commenting on the Performance Feedback, the inspector said:33
]120] Leaving aside the status of the counselling in August 2001 [see next] the picture emerges of a competent operational police officer, well regarded by his subordinates and the public. [121] There have, however, been a number of skirmishes with authority of which at least the November 1989 incident was particularly serious. He was unquestionably given a serious, perhaps final, warning as a consequence. His penalty included a transfer to non-operational duties, at the end of which he received an extremely positive review from his supervisory officer. [122] This incident and warning was specifically referred to in the Commissioner of Police's show cause notice. There can be no doubt that this incident remains a relevant part of Mr Gunston's dossier. The reality is however, that it is now 12 years on. He paid a price at the time and responded positively. Subsequently Mr Gunston has been promoted to Sergeant and appointed to positions of responsibility. [123] In all the circumstances the relevance of this incident and warning in the context of alleged serious misconduct in October 2001 is significantly diminished. Was There a Final Warning? [124] On 24 August 2001 Commander Tully counselled Mr Gunston in relation to allegations made by Mr Gunston's former de facto partner whilst he was stationed on King Island. Internals had investigated these allegations. The more serious allegations relating to assault and damage to property were found not to be substantiated. [125] The requirement for the counselling had been conveyed to Commander Tully by correspondence dated 15 August 2001 from the Acting Deputy Commissioner. Relevantly, the letter said:34
[126] Mr Gunston said that he contested the allegations, even those that Internals had found to be sustained:35
[127] Later, Mr Gunston said that he signed the form as an acknowledgement that counselling had taken place, not as an endorsement of the contents of the form. This was confirmed in Commander Tully's evidence. [128] Commander Tully said the counselling session took "no longer than five minutes" to complete. [129] Mr Gunston was not shown or given a copy of the correspondence from the Acting Deputy Commissioner. He was given a Counselling Report, which contained the two allegations that had been found by Internals to be substantiated. There is no reference in the document to a warning of any description.36 [130] The Commander's evidence on the counselling session is as follows:37
[131] Following the counselling session the completed form was returned to headquarters for inclusion in Mr Gunston's dossier. [132] There is clearly a conflict in the evidence as to whether a warning was given. This same conflict emerged when Commander Tully was asked to comment on Mr Gunston's response to the "show cause" notice.38 [133] I am not in a position to prefer one version of events to the other. I can only conclude that there was a misunderstanding of some sort. I would observe, however, that if Commander Tully's version is to be accepted, then he exceeded the direction given to him. The letter from the Acting Deputy Commissioner states:39
[134] Clearly this expression contemplates the prospect of demotion and in my view it was neither open nor appropriate for the Commander to elevate the warning to a higher level. [135] I also note that there is no documented record of any warning being given, whether it be in the counselling report or even a diary note by the Commander. This can be contrasted with the very clear written record of the warning that followed the 1989 incident. For an organisation that is quite meticulous on documentation, such an omission seems extraordinary. [136] It would also appear that Mr Gunston's immediate supervisor, Inspector Bonde, was unaware that a final warning had been given.40 [137] I am satisfied that, had Mr Gunston understood the counselling session to constitute a final warning, he would have taken steps to contest the veracity of the allegations made against him. [138] In all the circumstances I am unable to conclude that the counselling session on 24 August included the issue of a final warning, upon which Tasmania Police could rely in the event of subsequent misconduct. [139] There is one further aspect arising from the King Island incident. [140] On 15 August 2001 Commander Wild forwarded a report to the Acting Deputy Commissioner concerning the outcome of the Internals investigation. It was this report that in turn led to the instruction to Commander Tully to counsel Mr Gunston. [141] This report concludes with the following comment:41
[142] It is clear from subsequent evidence that the recommendation, initiated by Sergeant Dooley and passed on by Commander Wild, was never acted upon. Police Code of Ethics, Off Duty Behaviour, Public Perception and Confidence [143] Much has been written about standards of behaviour expected of police officers and, in particular, standards that apply for off duty behaviour. This in turn, it is argued, has a strong connection with the notion of public confidence. [144] In Police Ethics, it states:42
[145] A similar view is found in Ethics and Values Training: A Multifaceted Approach:43
[146] In relation to off duty behaviour, The Evolution of Law Enforcement's Code of Ethics states:44
[147] Turning to the law, in Rose v Telstra, Ross VP discussed in some detail the issue of out-of-hours conduct and connection with the employment contract. He said:45
[148] And later:46
[149] Ross DP went on to review a range of judgments including, Orr v University of Tasmania, Wearne, R v Teachers Appeal Board and Bercove v Hermes. He concluded:47
[150] In Roach v Qantas, Cartwright SDP reviewed a number of earlier judgments and observed:48
[151] In the context of the instant case, Commissioner McCreadie said:49
[152] During the evidence of the Commissioner of Police, reference was made to the Code Of Ethics required to be sworn by all classes graduating from the Police Academy. This reads as follows:50
[153] Commissioner McCreadie acknowledged the use of the word "desirability" in the last sentence, but suggested that the teaching around this would lead to a different conclusion. [154] From the evidence of virtually all the police witnesses, it is clear that the requirement for high standards in all facets of police life has a heavy emphasis in training and is well understood by police officers. I also accept that Inspector Bonde reinforced this teaching, particularly as it applied to off duty behaviour, for all police officers stationed at Queenstown, including Mr Gunston. [155] W hat is less clear is how these "standards" are defined. On any reasonable test, the required standard for off duty behaviour is something short of monastic teetotalism. [156] The evidence in respect of the public reaction to the 13 October incident is mixed. [157] Ms B said that immediately after the incident, the reaction of the people in the bar was that of laughter and that it was a joke.51 Constable Wolfe said that over the next week "everyone was laughing about it at the station".52 [158] Sergeant Sheahen said he had encountered a range of views during his "walk and talk" stints.53
[159] He said that a couple of members of the Neighbourhood Watch group were quite "disgusted and appalled by the situation". He said that whilst Mr Gunston had supporters in the community, they were "very much in the minority". [160] Inspector Bonde said the incident was a source of discussion amongst members of the public:54
[161] Given the nature of the incident, the range of views expressed is not surprising. Care must, however, be exercised in how this should be interpreted. With very few exceptions, those expressing a view, including police witnesses, are relying on a very second hand version of what actually occurred. [162] It is of interest that, despite the widespread level of awareness in the community, no member of the general public chose to lodge an official complaint in the 10 days following the incident. The complaint that was ultimately lodged on 23 October was, I suspect, motivated more by revenge than moral outrage. Misconduct in the Police Profession [163] In a paper titled Professionalism in Policing v Corruption, G W Crooke QC observed:55
[164] And later:56
[165] Commissioner McCreadie said in his evidence:57
[166] It is axiomatic that there are degrees of misconduct. Unfortunately little was put forward during the hearing which would enable me to form a view as to where Mr Gunston's behaviour on 13 October stands in the hierarchy of misconduct within Tasmania Police, and which has attracted penalties ranging from counselling through to dismissal. [167] It is clear however that there is a history of police officers maintaining employment notwithstanding a conviction for driving with a blood alcohol reading in excess of the prescribed maximum.58 Commissioner McCreadie did however say that he would be "disinclined to simply forgive and move on after second and subsequent [DUI] offences". [168] Whist each case must be considered on its merits, a review of the judgments relating to police misconduct is of interest: Lee v Fletcher Unnecessary force in arrest; lack of responsibility in discharging duties; consumption of alcohol whilst on duty; insubordination, indecent and threatening language directed at a superior officer; criticism by a judge and magistrate. Dismissal upheld. Commissioner of Police v Rosevear Off duty Constable, unprovoked acts of physical violence, in concert with another constable, against four members of the public. Dismissed by Commissioner; altered by Disciplinary tribunal to reduction in salary, confirmed on appeal. O'Rouke v Miller Off duty probationary constable; misuse of police badge to gain entry to a shop; obscene and insulting language to two females. Dismissal confirmed on appeal. Owens v NSW Police Service Probationary Constable; forged supervisory officer's signature on a validation document; fined and probation period extended; later when off duty refused police request to leave scene of an altercation and swore at police officer; arrested; subsequently dismissed; dismissal found to be harsh; compensation ordered. Bartlett v NSW Police Service Constable who maintained improper association with a known criminal and failed to identify conflict of interest. Dismissal confirmed. Cook v Commissioner of Police Off duty Constable who became involved in a fight, causing injury; later became involved in another fight in presence of police; directed obscene language at female police officer and female passenger in police vehicle; dismissal confirmed. Henry v Ryan Constable whilst off duty found loitering in the grounds of a girls school dressed only in underwear; convicted of misconduct; appeal rejected. Myers v Police Service of NSW Probationary constable; performance and integrity issues; failure to respond to two Performance Enhancement Programs; terminated; found to be not suited to police service and dismissal confirmed. Hartley v O'Loughlin & Anor Probationary Constable who, after consuming alcohol, was involved in a car accident; left scene with the view of avoiding breathalyser test; dismissal confirmed. Re Watson Police Constable who misused police service revolver by pointing loaded revolver at a colleague on two occasions, and cocking it on one; dismissed; penalty found not to be manifestly excessive, but observed that every misuse of firearm would necessarily cause such a drastic result. In Hollingsworth v Commissioner of Police, a student police officer was summarily dismissed for failing to reveal at the time of interview her previous activities as a stripper and a prostitute. She successfully appealed and was reinstated. [169] The following extracts from this judgement is enlightening as to off duty police behaviour, in New South Wales at least:59
[170] And later:60
Other Issues [171] There are certain other issues that need to be considered. [172] The "show cause" refers to a "complaint of misconduct" received from Ms B. Similarly the initial Internal Investigations report dated 14 November 2001 identifies Ms B as the complainant.61. From the evidence it is clear that Commissioner McCreadie was under the impression that Ms B had lodged the complaint.62
[173] This clearly is not the case. On the evidence of Constable Wolfe, no complaint was lodged on 13 October. The Chronology of Events63 submitted on the Commissioner's behalf correctly states that the complaint was lodged on 23 October, the source of which is clearly identified in the Internals report of 14 November. [174] Ms B was interviewed on 24 October. A review of the transcript of interview reveals that Ms B was most reluctant to make a statement, let alone initiate a complaint.64 [175] I understand that it is not unusual for the Deputy Commissioner to be named as the complainant, particularly when an information source does not wish to be identified. There is no evidence to suggest that this was the case in this matter, but either way, I would have no difficulty had the Deputy Commissioner been named as the complainant. [176] I raised this issue during the hearing and the response did not ameliorate my concern. Of course the identity of the complainant has no bearing on what actually occurred. Nonetheless I remain puzzled as to why Ms B was so identified. Why not Mr M?. After all, he was the first witness to the incident. [177] Given that the Commissioner of Police, even at the time of the hearing, understood the complaint to be initiated by Ms B, this assumes some significance. [178] On the question of location, Commissioner McCreadie was under the impression that Mr Gunston and Ms L would have been observable by a person moving through the foyer of the hotel:65
[179] I am satisfied on the evidence that Commissioner McCreadie's view was incorrectly held. [180] Commissioner McCreadie was also unaware that there are steps leading to the coffee lounge. 66 He was however correct in his understanding that access to the coffee lounge was in no way blocked off. The Investigation [181] On any measure the investigation conducted by the Internal Investigations Unit was thorough. The only possible exception to this description being one aspect of the drink spiking investigation. [182] Within the context of police procedures, the rules of natural justice have been observed. Mr Gunston knew what the allegations were and had the opportunity to respond. The fact that there was no face-to-face meeting between Mr Gunston and the Commissioner is unusual but certainly not fatal to a fair process. [183] Ordinarily I would have some concerns that the Commissioner accepted the show cause counter reports of Commander Tully and Inspector Bonde without reference back to Mr Gunston. However Commissioner McCreadie made it clear that, by necessity, he operated on a management, as distinct from a quasi-judicial, basis. The Commissioner acknowledged that with this approach, the veracity of the material before him might be subject to review in another forum.67 Conclusions and Findings [184] The onus of proving the existence of a valid reason falls squarely on the employer. [185] In terms of off duty conduct, the law is well summarised in Rose v Telstra, discussed earlier in this decision. In short, there needs to be sufficient connection between the conduct and the nature of the employment. [186] Consistent with the judgment in Allen v Commissioner of Australian Federal Police, conduct which amounts to a breach of the criminal law would, in the case of a police officer, very likely constitute a valid reason for dismissal. But of course in the instant case we do not have a breach of the criminal law. No charges have been laid and all we have is an assertion that the law has been broken.68 [187] This to me creates a quite unsatisfactory situation. The respondent asserts that there is criminal conduct involved but does not press charges. This Commission clearly is unable to make a finding on this question. Hence the allegation simply hangs in the air and Mr Gunston is unable to mount a defence through the lack of an appropriate forum. In Acts of Institutional Self Defence, reference is made to Allan v Commissioner of Australian Federal Police where Neaves J stated:69
[188] In the instant case it would be dangerous and indeed wrong to proceed on the assumption that criminal conduct is involved. [189] Of course a criminal element in the off duty conduct is not a prerequisite for a finding as to the existence of a valid reason for dismissal, but it would tend to put the issue beyond doubt. [190] Mr Tree submitted that the act was intrinsically private in nature and did not involve criminal behaviour. Whilst it did not occur in a bedroom, when all the circumstances are considered, it was no different to the same activity taking place out of doors, such as camping in a national park. Such circumstances, he submitted, do not comprise a valid ground for termination. [191] I accept, without hesitation, that the critical issue in this case is not the behaviour itself, but the location in which it occurred. The substance of Mr Miller's case is that the act did not take place in private and hence Mr Gunston's behaviour clearly provided a valid reason for summary dismissal for misconduct. [192] Mr Tree submitted that if it had to happen outside a bedroom, it was not a bad second option. He said:70
[193] In Sangwin v Imogen, Von Doussa J said:71
[194] In this context there could be little argument with the notion that proven and deliberate offensive behaviour by a police officer would constitute a valid reason for dismissal. [195] I have absolutely no doubt that Commissioner McCreadie had an honest belief as to what occurred on 13 October. There are however two aspects which bring in to question whether this belief was based on reasonable grounds. [196] Firstly Commissioner McCreadie was unaware that there is a flight of steps leading to the coffee lounge. He was also clearly, and indeed wrongly, under the impression that Mr Gunston and Ms L were observable from the hotel foyer. If that were the case, the likelihood of detection would have been relatively high. In actuality, the likelihood that they would be seen was low, perhaps even remote. [197] Secondly, Commissioner McCreadie was clearly under the impression that it was Ms B who first drew Police Headquarters' attention to the incident, and lodged the complaint. This was not the case. [198] It is also clear that Commissioner McCreadie continued to hold these views at the time of the hearing, despite the review process that had been undertaken. [199] Whether a better understanding of these two factors would have caused Commissioner McCreadie to modify his decision is unknown. However, as this case turns largely on the issues of 'location' and 'public confidence', the misunderstandings on Commissioner McCreadie's part assume considerable significance. [200] In North v Television Corporation Ltd, Smithers and Evatt JJ said:72
[201] Looking at the facts of this case, I am unable to conclude that the behaviour constituted a "deliberate flouting of essential contractual conditions". [202] The behaviour was not calculated to deliberately offend or confront. It did not involve a misuse of the police badge, nor can it be argued that the public was put at risk. [203] Simply stated, Mr Gunston and Ms L took inadequate steps to conceal an otherwise perfectly lawful and normal act. It was foolish, indeed stupid behaviour, which demanded severe disciplinary action. It did not, however, constitute grounds for a valid reason for dismissal. [204] Leaving aside the matter of "valid reason" there is one further aspect that causes me to conclude that dismissal is a quite disproportionate response to the behaviour in question. [205] I accept without hesitation that a duty falls to police officers to maintain "high standards" in their off duty activities. With that expectation a heavy duty also falls on the Department to protect officers and provide assistance and support for those who may be 'at risk'. Indeed Commissioner McCreadie acknowledged this in pointing to the extensive infrastructure and support services available within the Department. Dismissal should be viewed as a last resort [see Crooke p. 10]. [206] As a consequence of the investigation of the King Island incident, Sergeant Dooley made a recommendation that Mr Gunston attend Dr Ryan [Police Psychologist} concerning alcohol consumption. This was passed on to the Acting Deputy Commissioner but not acted upon. In these circumstances it strikes me as unfair that, in the first incident involving excessive alcohol consumption since the August counselling, Mr Gunston is dismissed. It is noteworthy that Mr Gunston, in his response to the show cause notice, acknowledges the desirability of professional counselling in regards to the use of alcohol. [207] I conclude that, whilst Mr Gunston's behaviour clearly called for strong disciplinary action, summary dismissal was not within the range of penalties reasonably open to the Commissioner. Remedy [208] Where a dismissal has been found to be unfair, the primary remedy available to this Commission is reinstatement or re-employment. It is only if this is found to be "impracticable", that the question of compensation may be considered. [209] Mr Miller opposed reinstatement. He said:73
[210] On the practicality of reinstatement, Commissioner McCreadie acknowledged that Mr Gunston could be placed in a non-operational area, which would not require contact with the public. There are however no areas whereby he would not be in contact with other officers and state servants. He said:74
[211] In Perkins v Grace Worldwide there is reference to Abbott-Etherington v Houghton Motors whereby Marshall J found that reinstatement of a managerial employee was not impracticable despite a claim by the principals of the respondent that they had lost confidence in her. He said:75
[212] Tasmania Police is a large organisation. Apart from the statement above from Commissioner McCreadie, there is no direct evidence that other officers would not cooperate should Mr Gunston be returned to the workplace. [213] The behaviour of Mr Gunston certainly calls for a substantial disciplinary penalty. [214] I propose to order re-employment from a prospective date. In terms of lost salary, this represents a very substantial 'fine' of more than $30,000. [215] If it was within the Commission's power I would also order that Mr Gunston be demoted to the rank he held immediately prior to his promotion to a sergeant. I suspect however that such an order might constitute an "appointment" and thus be beyond power. I note, however, that this option remains open to the Commissioner of Police. [216] The future role and location of Mr Gunston is of course a matter entirely for the Commissioner within the bounds of normal police procedures. [217] In conclusion I observe that Mr Gunston has in the past responded positively to a reallocation of duties and there is reason to believe that this would occur again. ORDER Pursuant to s.31 of the Act I hereby order that Andrew Scott Gunston be re-employed by Tasmania Police at the rank and salary applicable immediately prior to his termination, such re-employment to take effect from 8 July 2002. I further order that Mr Gunston's solicitor initiate discussions with the Commissioner of Police, or his delegate, with the view of securing an orderly return to the workplace.
Tim Abey Appearances: Date and Place of Hearing: REFERENCES Judgments and Decisions Texts, Articles and Papers -oooOOOooo- 1 Exhibit R1 tab 8 |