TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Andrew Scott Gunston
(T9986 of 2002)

and

Commissioner of Police

STATEMENT

In this matter the applicant, Mr Gunston, alleges that his termination from Tasmania Police was unfair and he seeks reinstatement.

The catalyst for the termination was an incident involving oral sex in the coffee lounge of the Empire Hotel at Queenstown in the early hours of 13 October 2001. Mr Gunston was off duty at the time.

The Commissioner of Police submitted that the Commission lacked the jurisdiction to hear and determine the matter. This preliminary application is rejected.

This matter raised the issue of the standards of behaviour that are expected of off duty police officers. There can be no doubt in my mind that there is a well-understood expectation that police officers are required to maintain high standards in both their public and private lives. Further, because of the special and unique position that police officers hold in the community, this expectation is much higher than would apply to most other occupational groupings.

It is equally true that a duty falls to Tasmania Police to assist and support officers who may be 'at risk'. Termination of employment should be seen as very much a last resort.

There can be no question that the behaviour of Mr Gunston on 13 October was quite unacceptable and demanded disciplinary action. The question to be determined is whether the misconduct was sufficiently serious as to constitute a repudiation of an essential term of the contract of employment, thus rendering termination a disciplinary option reasonably available to the Commissioner of Police.

Having reviewed the entirety of the evidence, I have reached the following conclusions.

The investigation carried out by the Internal Investigations Unit was, with the possible exception of one aspect of the drink spiking investigation, extremely thorough. Mr Gunston was also afforded procedural fairness, in that the allegations were clearly put him and he was given adequate opportunity to respond.

I have no doubt that Mr Gunston genuinely felt that he was under stress arising from a combination of workload issues together with the difficulties of living in an isolated community with limited opportunities for relaxation. I am also satisfied that Tasmania Police did nothing in a management or policy sense which might leave them open to criticism. Stress may be an explanation for the excessive consumption of alcohol on the evening in question, but it is not an excuse for the behaviour that followed.

I do not accept that the counselling given to Mr Gunston in August 2001 amounted to a final warning upon which the Department could reasonably rely in any subsequent instance of misconduct. Similarly, the warning that followed the serious incident in 1989, is now so dated as to be of limited impact. This is particularly so given that Mr Gunston has, in an operational sense, subsequently performed satisfactorily, been promoted and appointed to positions of responsibility.

The investigation, which led to the August counselling, included a recommendation from the investigating officer that Mr Gunston be given professional assistance relating to alcohol consumption. This was not acted upon. In this context there is an element of unfairness, in that the very next incident that involved excessive alcohol consumption led to his dismissal.

Whilst I am satisfied that the Commissioner of Police honestly believed that he had a clear understanding of what occurred on 13 October, he did hold a mistaken belief that the incident could have been witnessed by anyone who happened to walk through the hotel foyer. As 'location' was a critical element in this case, this misapprehension is of particular significance.

I am also satisfied that the Commissioner of Police was under a misunderstanding as to who initially brought the matter to the attention of Tasmania Police, and who should properly have been identified as the complainant.

Despite assertions that criminal behaviour was involved, charges have not been laid. In the circumstances it would be dangerous and inappropriate to assume that the behaviour was criminal in nature, and I have not done so.

But for the location, the behaviour complained of is of course perfectly legal. In this case the participants took, what transpired to be, inadequate precautions to avoid detection, notwithstanding that it occurred at a time and place when detection was unlikely. The behaviour was not calculated to deliberately offend or confront. There was no deliberate exhibitionism involved.

Unlike many of the cases that were referred to, this incident did not involve the misuse of the police badge, dishonesty, or behaviour that might put public safety at risk.

It is possible that the behaviour might damage the standing in which Tasmania Police is held by the community. The evidence on this is mixed. Certainly the incident was seen in a number of quarters as a source of amusement. There were also second-hand accounts that some in the community were quite disgusted and appalled. Whilst I have no doubt that in some cases the latter is true, I did not get a sense of widespread moral outrage likely to cause lasting damage to the standing of Tasmania Police.

Having regard to the totality of the circumstances surrounding this case, I am of the view that termination is a quite disproportionate response, and one not reasonably open to the Commissioner of Police.

It is however a serious matter which calls for a strong disciplinary response. I reject the application for reinstatement. I propose to order re-employment from a prospective date [8 July 2002]. In terms of lost salary, this represents a very substantial fine in excess of $30,000.

If it were within my power I would have coupled this with demotion to the rank Mr Gunston occupied immediately prior to his promotion to sergeant. I suspect, however, that such an order may be beyond jurisdiction and I refrain from doing so. I note that such action remains open to the Commissioner of Police. The role and location to be assigned to Mr Gunston is of course a matter for the Commissioner consistent with normal police procedures.

This statement is released because of the widespread media and public interest in this case. It does not form part of the decision.

My detailed Reasons for Decision accompany this statement.