TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1)(b) Appeal against an Order

Commissioner of Police
(T10313 of 2002)
and
Andrew Scott Gunston

Andrew Scott Gunston
(T10316 of 2002)
and
Commissioner of Police

Appeal against a decision handed down by Commissioner T J Abey arising out of T9986 of 2002 - Appeal dismissed in respect to findings that termination was unfair and no valid reason existed for the termination; matter of remedy subject to further hearing.

REASONS FOR DECISION

[1] In a decision issued on 27 June, 2002, in Matter T9986 of 2002, Commissioner Abey determined 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 June, 2002."

[2] The Commissioner of Police lodged an appeal against Commissioner Abey's decision pursuant to s.70(1) of the Industrial Relations Act, 1984 (the Act) (T10313 of 2002).

[3] An appeal was also lodged, pursuant to s.70(1) of the Act, on behalf of Mr Gunston (T10316 of 2002).

[4] In this decision we deal with appeal grounds 1 to 22 of the Commissioner of Police's appeal. The two (2) appeals were listed for programming on 10 October, 2002, where it was determined that the Full Bench would deal with each appeal and, in the event that Commissioner Abey's decision is upheld, the Full Bench would then deal with the matter of remedy. This unusual course of action was adopted to allow the appeals to be dealt with as quickly as possible and to then allow a consideration of the application by the Commissioner of Police to admit fresh evidence in respect to the re-employment/reinstatement (remedy) issue. Both parties agreed to that procedure.

[5] It has become evident that the issue of re-employment/reinstatement (remedy) is subject to a consideration of appeal grounds 23 to 27 of the Commissioner of Police's appeal and the three (3) grounds of appeal on which Mr Gunston relies. Accordingly we will deal with all of those grounds of appeal when we hear the parties in respect to the re-employment/reinstatement (remedy) issue.

[6] We note that the grounds of appeal inter-relate in a number of instances and rely on the same evidence and references. We have separately addressed, as far as is possible, each appeal ground however some repetition has been unavoidable.

[7] Commissioner Abey said at paragraph 58:

[8] We adopt the same approach.

Appeal by the Commissioner of Police

[9] The Commissioner of Police appealed the decision on grounds that Commissioner Abey:

"(1) erred in finding that Mr Gunston had been unfairly dismissed;

(2) erred in finding that that Mr Gunston's conduct at the Empire Hotel in Queenstown on the night of 12/13 October 2001 did not constitute a valid reason for his dismissal by the Commissioner of Police;

(3) erred in finding that dismissal of Mr Gunston was not a course of action reasonably open to the Commissioner of Police in respect of his conduct at the Empire Hotel on the night of 12/13 October 2001;

(4) erred in characterising the dismissal of Mr Gunston in response to his conduct at the Empire Hotel on the night of 12/13 October 2001 as the imposition of a penalty by the Commissioner of Police upon Mr Gunston;

(5) erred in finding that the conflict between the evidence of Mr Gunston and the evidence of Commander Tully as to the issue of whether on 24 August 2001, whilst counselling Mr Gunston in respect of a complaint made against him by Ms Heather Bell, the Commander warned Mr Gunston that future misconduct by him could lead to his dismissal from Tasmania Police resulted from a misunderstanding between Mr Gunston and the Commander;

(6) erred in finding that it was neither open nor appropriate for Commander Tully on 24 August 2001 to give Mr Gunston a warning that future misconduct by him could lead to his dismissal from Tasmania Police;

(7) erred in finding that the Commissioner of Police could not rely on the warning given by Commander Tully to Mr Gunston on 24 August 2001 as a final warning when making the decision to dismiss Mr Gunston;

(8) erred in failing to give sufficient weight to Mr Gunston's misconduct prior to the conduct which led to his dismissal when considering whether his dismissal was unfair;

(9) erred in failing to give sufficient weight to the standards of conduct required of members of Tasmania Police both whilst on duty and off duty when considering whether Mr Gunston's dismissal was unfair;

(10) erred in failing to give sufficient weight to the special nature of the relationship between police officers and the Commissioner of Police and the necessity for the Commissioner of Police to maintain confidence in his police officers when considering whether Mr Gunston's dismissal was unfair;

(11) erred in giving any or undue weight to his perception that there was no widespread moral outrage concerning the conduct which led to Mr Gunston's dismissal which was likely to cause lasting damage to the standing of Tasmania Police when considering whether Mr Gunston's dismissal was unfair.

(12) erred in finding that the Empire Hotel was in the process of closing if not officially closed at the time Mr Gunston engaged in the conduct which led to his dismissal;

(13) erred in finding that it was unlikely that new customers would have been admitted to the Empire Hotel at the time Mr Gunston engaged in the conduct which led to his dismissal;

(14) erred in finding that the likelihood that the conduct of Mr Gunston which led to his dismissal would be observed was "low, perhaps even remote";

(15) erred in finding that it was unlikely that either Mr M or Ms B witnessed Mr Gunston performing oral sex on Ms L;

(16) erred, when considering whether Mr Gunston's dismissal was unfair, in giving undue weight to his finding that when performing oral sex upon Ms L at the Empire Hotel on the night of 12/13 October 2001 Mr Gunston was not intending to deliberately offend or confront;

(17) erred in misstating the extent of the concerns of Ms B in respect of the conduct of Mr Gunston at the Empire Hotel on the night of 12/13 October 2001;

(18) erred, when considering whether Mr Gunston's dismissal was unfair, in failing to give any or sufficient weight to the belief of the Commissioner of Police that Mr Gunston's performance of oral sex on Ms L at the Empire Hotel on the night of 12/13 October 2001 constituted a breach of Section 13(1)(a) of the Police Offences Act 1935;

(19) erred, when considering whether Mr Gunston's dismissal was unfair, in failing to give any or sufficient weight to the evidence suggesting that Mr Gunston's performance of oral sex on Ms L at the Empire Hotel on the night of 12/13 October 2001 did in fact constitute a breach of Section 13(1)(a) of the Police Offences Act 1935;

(20) erred in failing, when considering whether Mr Gunston's dismissal was unfair, to give any or sufficient weight to the concerns of the Commissioner of Police in relation to:

(a) the inappropriate sexual conduct of Mr Gunston witnessed by Sergeant Whitwam and others at the Queenstown Police Station on 21 May 2001;

(b) the misleading report, dated 23 June 2001, submitted by Mr Gunston to Inspector Bonde concerning the issue of who was driving a Queenstown police vehicle detected speeding on 20 May 2001;

(c) misleading statements in Mr Gunston's response to the show cause notice served upon him as to his recollection of whether Ms L slept at his residence on the night of 12/13 October 2001 and the extent to which his conduct at the Empire Hotel on that night had become public knowledge in Queenstown;

(d) the evidence of Mr Gunston concerning events leading up to the domestic incident between himself and Ms Heather Bell at her residence on 27 March 2002 which led to police being called to attend her residence;

(21) erred, when considering whether Mr Gunston's dismissal was unfair, in placing any or undue weight on the mistaken belief of the Commissioner of Police as to:

(a) whether in the position that Mr Gunston performed oral sex on Ms L at the Empire Hotel on the night of 12/13 October 2001 he could have been observed by persons in the foyer of the Hotel;

(b) whether Ms B was the first person to lodge a complaint with Tasmania Police concerning the conduct of Mr Gunston which led to his dismissal;

(22) erred, when considering whether Mr Gunston's dismissal was unfair, in placing undue weight on the failure of Tasmania Police to implement the recommendation contained in Sergeant Dooley's report of 3 July 2001 to Commander Wild (referred to in Commander Wild's report of 15 August 2001 to the Acting Deputy Commissioner of Police) that Mr Gunston attend a counselling session with Dr Ryan to assess his level of alcohol consumption and the impact (if any) such consumption may have on his work performance;

(23) erred in placing insufficient weight on the evidence given by the Commissioner of Police at the hearing of Mr Gunston's application concerning the practicability of his reinstatement or re-employment;

(24) erred in failing, when considering whether reinstatement or re-employment of Mr Gunston was impracticable, to give any or sufficient weight to the concerns of the Commissioner of Police in relation to:

(a) the inappropriate sexual conduct of Mr Gunston witnessed by Sergeant Whitwam and others at the Queenstown Police Station on 21 May 2001;

(b) the misleading report, dated 23 June 2001, submitted by Mr Gunston to Inspector Bonde concerning the issue of who was driving a Queenstown police vehicle detected speeding on 20 May 2001;

(c) misleading statements in Mr Gunston's response to the show cause notice served upon him as to his recollection of whether Ms L slept at his residence on the night of 12/13 October 2001 and the extent to which his conduct at the Empire Hotel on that night had become public knowledge in Queenstown;

(d) the evidence of Mr Gunston concerning events leading up to the domestic incident between himself and Ms Heather Bell at her residence on 27 March 2002 which led to police being called to attend her residence;

(25) erred in failing to give sufficient weight to Mr Gunston's misconduct prior to the conduct which led to his dismissal when considering whether reinstatement or re-employment of Mr Gunston was impracticable;

(26) erred in failing to give sufficient weight to the standards of conduct required of members of Tasmania Police both whilst on duty and off duty when considering whether reinstatement or re-employment of Mr Gunston was impracticable;

(27) erred in failing to give sufficient weight to the special nature of the relationship between police officers and the Commissioner of Police and the necessity for the Commissioner of Police to maintain confidence in his police officers when considering whether reinstatement or re-employment of Mr Gunston was impracticable."

Appeal by Andrew Gunston

[10] Mr Gunston also lodged an appeal pursuant to s.70(1) of the Act against the decision of Commissioner Abey upon the grounds that Commissioner Abey:

"(1) Erred in that, having, found that Mr Gunston's termination of employment was unfair, failed to order the reinstatement of Mr Gunston's employment with Tasmania Police.

(2) Erred in law in that having found that Mr Gunston's termination of employment was unfair, failed to give any or any adequate reasons why reinstatement of Mr Gunston's employment by Tasmania Police was not ordered.

(3) Alternatively, having found that Mr Gunston's termination of employment was unfair and ordering his re-employment by Tasmania Police, failed to order re-employment on terms which were reasonable and just."

Considerations:

[11] In considering the appeals it was agreed by the parties that the Commission would rely on the principles established in the decision of the High Court in House v The King (1936) [55 CLR 499, at 504-505 per Dixon, Evatt and McTiernan JJ] which provides:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

[12] We now deal with the grounds of appeal relied upon by the Commissioner of Police.

Appeal Ground 1:

That Commissioner Abey erred in finding that Mr Gunston had been unfairly dismissed.

[13] The Commissioner of Police submitted that the Act provides two burdens of proof and referred to s.30(5) which states:

"Where an employer terminates an employee's employment, the onus of proving the existence of a valid reason for the termination rests with the employer."

and s.30(6) which states:

"Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant."

[14] It was submitted by the Commissioner of Police that if an employer does not satisfy the Commission that there existed a valid reason for the termination then the termination "will be found to be unfair". If the employer can demonstrate a valid reason for the termination the onus then rests with the applicant to satisfy the Commission that the termination was unfair.

[15] The Commissioner of Police argued that the authorities "stress that a dismissal should not be regarded as unfair just because a court or tribunal might view dismissal as a harsh response to conduct. It is not for a court or tribunal to substitute its own view for the reasonably held view of the employer". Some reliance was placed on the following passage from the Full Bench decision of the South Australian Industrial Commission in Bi-Lo Pty Ltd v Hooper [(1992) 53 IR 224] (Bi-Lo) which was repeated in a decision of Deputy President Johnson in McKenzie v Chubb Protective Services in T6816 of 1997:

"Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable."

[16] It was claimed by the Commissioner of Police that the decision of Commissioner Abey should not stand as he did not consider whether Mr Gunston had established that his termination was unfair and further that Commissioner Abey could not be satisfied that the termination was unfair on the evidence presented to him. As such, Mr Gunston had not discharged the onus imposed on him by s.30(6) of the Act. Further, it was noted at paragraphs 181 and 182 Commissioner Abey found "that the process leading to Mr Gunston's dismissal was fair." Commissioner Abey said:

"[181] On any measure the investigation conducted by the Internal Investigation 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 [of Police] is unusual but certainly not fatal to a fair process."

[17] The evidence before Commissioner Abey revealed that a significant consideration for the dismissal was, according to the Commissioner of Police, that the behaviour had occurred in a place where it was able and likely to be observed. The transcript reveals Commissioner McCreadie's response to the following question:

Q. "Now what was the basis or reason for your decision to dismiss Mr Gunston?

A. Well, I think the act as described was such a significant breach of standards. It was such a significant attack on the responsibilities around the oath of office of constable. It was compounded to some extent by the fact it was committed by a sergeant, but in coming to the conclusion of course, I considered other matters and looked right through his dossier, in fact looked - as I'm required, I guess, to do - looked at his whole career, but the compelling issue to deal with was that breach."1

[18] And further:

".........the basis was clearly the act and the lack of standards and inappropriate - and the fact that people were exposed to the behaviour."2

[19] It was submitted on behalf of Mr Gunston that there was sufficient evidence before Commissioner Abey for him to make the finding that he did and there was no error in his finding. It was submitted that Commissioner Abey had referred to the decision of North v Television Corporation Ltd [11 ALR 615] (North), and had quoted in his decision, at paragraph 200, the following passage from the decision of Smithers and Evatt JJ:

"[200] For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle [Indicator Newspapers] Ltd [1959] 2 All ER 285 at 287 and 289, are in point. He said:-

'To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.

I do, however, think [following the passages which I have already cited] that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show [in effect] that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful'; it does [in other words] connote a deliberate flouting of the essential contractual conditions.' "

[20] Commissioner Abey concluded, having referred to the findings in North, that the behaviour of Mr Gunston did not constitute a "deliberate flouting of essential contractual conditions."

[21] We agree with the findings in Bi-Lo, but note that in this matter the decision to dismiss took into account incorrect information in respect to issues of some significance according to Commissioner Abey. The fact that a reliance on incorrect information led to a decision to dismiss is very relevant, in our view, to a finding that the termination was harsh, unjust or unreasonable.

[22] The Commissioner of Police concluded that Mr Gunston was guilty of misconduct inasmuch as the behaviour took place in the public view or in a place where it was likely to be observed. This conclusion is inconsistent with the evidence and it was not established that the Commissioner of Police had reasonable grounds for such conclusion. As noted previously, reliance on incorrect information is a significant issue when considering whether there existed a valid reason for the termination and whether that termination was fair.

[23] The test in Bi-Lo requires that before a termination is effected the employer "will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances;" and further "and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable." [our emphasis]

[24] In our view that test has not been met.

[25] Further, the decision in Selvachandran v Peteron Plastics [(1995) VI 1322R of 1994] (Selvachandran) provides that ".....it has been held that a valid reason exists where the employer had a sound, defensible or well founded reason for termination of the applicant's employment."

[26] In this matter we are not satisfied that there was a valid reason for the dismissal and that the Commissioner of Police has not demonstrated that his decision was sound, defensible or well founded. Commissioner Abey has found that there was no valid reason for the termination and that it was unfair.

[27] We detect no error and agree with the finding of Commissioner Abey that Mr Gunston has been unfairly dismissed.

[28] We reject appeal ground 1.

Appeal Grounds 2 and 3:

(2) That Commissioner Abey erred in finding that Mr Gunston's conduct at the Empire Hotel in Queenstown on the night of 12/13 October 2001 did not constitute a valid reason for his dismissal by the Commissioner of Police.

(3) That Commissioner Abey erred in finding that the dismissal of Mr Gunston was not a course of action reasonably open to the Commissioner of Police in respect of his conduct at the Empire Hotel on the night of 12/13 October 2001.

[29] These two grounds were dealt with together and they also relate to appeal ground 1. It was submitted that the Act does not define what constitutes a valid reason for termination but prescribes at s.30(3) that a valid reason for termination must be connected with:

[30] It was noted by the Commissioner of Police that Commissioner Abey had found that the behaviour of the applicant had been "foolish, indeed stupid behaviour, which demanded severe disciplinary action. It did not, however, constitute grounds for a valid reason for dismissal."3

[31] As previously noted in Selvachandran it was said that ".....it has been held that a valid reason exists where the employer had a sound, defensible or well founded reason for termination of the applicant's employment."

[32] Commissioner Abey, at paragraph 207, said:

"[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."

[33] Whilst Mr Gunston claimed no recollection of the behaviour for which he was dismissed he does not dispute that the behaviour occurred. The detail of that behaviour has been well canvassed in Commissioner Abey's decision and we do not need to allude to it here. It is not in dispute that the behaviour occurred and it is the submission of the Commissioner of Police that the location of the behaviour was such to warrant termination. In his evidence before Commission Abey, the Commissioner of Police had stated that he had formed the view that Mr Gunston was "no longer a fit and proper person to serve as a police officer." A number of other police officers had testified that they would also have expected to be terminated if caught engaging in similar behaviour. Further, it was submitted that Mr Gunston's behaviour was a breach of s.13(1)(a) of the Police Offences Act 1935 (Police Act) which prescribes that:

"(1) A person shall not, in a public place:

(a) behave in a violent, riotous, offensive, or indecent manner...."

[34] The Police Act defines a "public place" as including "any park, garden, reserve, or other place of public recreation or resort ..."

[35] Accordingly, it was argued by the Commissioner of Police that such breach by itself constituted a valid reason for the dismissal.

[36] Counsel fro Mr Gunston relied on his submission provided in respect to appeal ground 1 which, he submitted, is also relevant to appeal ground 15, and said that the evidence of Mr M and Ms B was contradictory and did not support the assertion made by the Commissioner of Police. Further he dismissed the evidence provided by a number of police officers as tainted by the question asked by counsel for the Commission of Police. Commissioner Abey considered the evidence of the witnesses, including police officers, and recorded as follows:

"[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."

[37] We concur with his comment.

[38] On behalf of Mr Gunston it was also submitted that the claim by the Commissioner of Police that Mr Gunston's behaviour constituted a breach of the Police Act is not supported by the evidence. The response to appeal grounds 18 and 19 also address the submission by the Commissioner of Police in respect to appeal grounds 2 and 3, he said.

[39] Commissioner Abey noted that no charge had been made against Mr Gunston in respect to the Police Act.

[40] We find no error in Commissioner Abey's findings that there was no valid reason for the dismissal of Mr Gunston, and reject appeal ground 2. We find no error in the finding of Commissioner Abey that dismissal was not a course of action reasonably open to the Commissioner of Police and reject appeal ground 3.

Appeal Ground 4:

That Commissioner Abey erred in characterising the dismissal of Mr Gunston in response to his conduct at the Empire Hotel on the night of 12/13 October 2001 as the imposition of a penalty by the Commissioner of Police upon Mr Gunston.

[41] At paragraph 207 of Commissioner Abey's decision he said:

"[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 [of Police]."

[42] It was submitted that such finding was inconsistent with the evidence of the Commissioner of Police where it was said that the decision to dismiss was not made as a punishment or penalty but because the Commissioner of Police had formed the view that Mr Gunston was not a fit and proper person to serve as a police officer. Reference was made to a lengthy paper (which we note is marked as a draft document) by Assistant Commissioner Smith of the Northern Territory Police Service titled "Acts of Institutional Self Defence, Maintaining Ethical Standards, Integrity and Discipline in, and the Public Reputation and Standing of, the Northern Territory Police Force." In that paper reference is made to many decisions from a number of jurisdictions; the Commissioner of Police relied on Assistant Commissioner Smith's particularisation of the decision in Downs v Blizzard (Misconduct Tribunal, Appeal No. 3 of 1990, 7 February, 1992), where it was stated that:

"The legal nature of disciplinary sanctions, as distinct from criminal penalties and civil compensation, is not entirely clear. Generally, but not unequivocally, the courts see disciplinary action as `protective' rather than punitive, designed to protect the integrity of the organisation concerned and the interests of members of the wider community who may be within its sphere of influence: Skinner v Beaumont [1974] 2 NSWLR 106 at 109, 113; Ex parte Attorney-general for the Commonwealth; re a Barrister and Solicitor (1972) 20FLR 234 at 224; Thompson v British Medical Association (NSW Branch) (1924) AC 764 at 769; MacMillan v Pharmaceutical Council of WA (1983) WAR 166 at 174. But the courts sometimes slip into quasi-criminal language of `penalties': Chan v Medical Board of South Australia (Unrep., SASC, FC, 16 October 19187 per Jacobs and Millhouse JJ); R v Blizzard; ex parte Downs (Unrep., QSC, FC, 7 August 1991, per MacPherson SPJ). The protective theory, to my mind, is the more appropriate, and where (as here) the interests of the community are involved, there is also a question of deterrence. As I understand their reasons for judgement, other members of this Tribunal have taken this view.

But appropriate `protective' action may well be more onerous than any penalty that the courts would impose for the same or similar conduct. Many serious breaches of discipline, potentially very harmful to an organisation, or to the public interest are trivial offences against the general law, if they are offences at all. Disciplinary sanctions are often appropriate although they are more severe that any order which a court of law could or would impose."

[43] Further, the paper states that "therefore, as we made clear in Re Bowen (OSC No. 651 of 1994) by Demack J., the purpose of discipline within the Police Force is:

[44] It was submitted by the Commissioner of Police that "If, as Commissioner Abey has done, one views Mr Gunston's dismissal from Tasmania Police as a penalty imposed in respect of his conduct ... it is understandable that the penalty would be considered extremely harsh and probably disproportionate to the conduct being punished." The decision to dismiss was due to the Commissioner of Police losing confidence in Mr Gunston's fitness to continue to serve as a police officer. Accordingly, it was submitted that the appropriate question to be answered is not was the dismissal "too harsh a penalty?" but in all the circumstances, is the view of the Commissioner of Police that Mr Gunston is unfit to continue to serve as a police officer unreasonable "as to render his dismissal unfair?" The Commissioner of Police referred to the decision of the Industrial Court in Cooke v Commissioner of Police - Decision 129/96, where it was said:

"Whereas a civilian employee might successfully argue that fighting out of work hours is not relevant to their employment, that argument is not, in my view, available to a police officer. I accept that such conduct on the part of a police officer while he or she is off duty is relevant because it is likely to bring the Police Force into disrepute and it indicates a deficiency in the personal qualities required in a police officer."

[45] On behalf of Mr Gunston it was submitted that the characterisation of the dismissal as a penalty was appropriate inasmuch as the use of the word `penalty' refers to an adverse outcome for Mr Gunston. Further, that Commissioner McCreadie referred to an aspect of the dismissal of Mr Gunston as a `penalty' in the following extract from transcript:

"And whilst I say it's not about punishment, there is significant penalty of course in dismissal."4

[46] We have considered the references relied upon by the Commissioner of Police from the paper titled "Acts of Institutional Self Defence, Maintaining Ethical Standards, Integrity and Discipline in, and the Public Reputation and Standing of, the Northern Territory Police Force." We agree with the findings in Cooke, but do not think that the issues raised in that matter are relevant to the grounds of appeal relied upon by the Commissioner of Police. Mr Gunston was not doing anything illegal, there was no deliberate intent to offend and, the evidence suggests, the behaviour was unlikely to be detected in the location where it occurred. The interest in the incident was as a result of the "gossip mill" and the relating of the incident by Ms B and then, it would seem, treated only as a "bit of a laugh". In fact, it was the evidence of the police officers who attended the hotel on the night of the incident that "they had a bit of a laugh" and that "at the time we found it fairly funny" and that over the next week "everyone was laughing about it at the station."

[47] We are of the view that, by any definition, the termination of employment by an employer is a "penalty" imposed on an employee.

[48] The Macquarie dictionary definition of a penalty is:

"penalty - a punishment imposed or incurred for a violation of law or rule; a loss or forfeiture to which one subjects himself by non-fulfilment of an obligation; that which is forfeited as a sum of money; consequence or disadvantage attached to any action, condition, etc."

[49] We concur that the Commissioner of Police effected the dismissal on the basis that he had formed the view that Mr Gunston was not a fit and proper person to serve as a police officer however by so doing he did impose a severe penalty and conceded as much in evidence.

[50] We find no error in the characterisation by Commissioner Abey that the dismissal was a penalty. Even if we did find error such a finding would not, in our view, be fatal to his decision.

[51] We reject appeal ground 4.

Appeal Ground 5:

That Commissioner Abey erred in finding that the conflict between the evidence of Mr Gunston and the evidence of Commander Tully as to the issue of whether on 24 August 2001, whilst counselling Mr Gunston in respect of a complaint made against him by Ms Heather Bell, the Commander warned Mr Gunston that future misconduct by him could lead to his dismissal from Tasmania Police resulted from a misunderstanding between Mr Gunston and the Commander.

[52] Commander Tully testified that he had been asked by the Acting Deputy Commissioner to inform Mr Gunston that a recurrence of any similar behaviour (this related to an incident on King Island in August 2001), would result in him being asked to show cause why the Commissioner of Police should retain confidence in him to perform the duties at the rank of sergeant. Commander Tully said that the terminology used by the Acting Deputy Commissioner was a "term, I suppose, that's a legal or a technical term.....I decided to give it some emphasis and I am absolutely satisfied that I got that same message across."5

[53] It was Commander Tully's evidence that he exceeded the instruction given to him by the Acting Deputy Commissioner but that he was satisfied that he had indicated to Mr Gunston that "he may be dismissed in the future for similar conduct. He may have been demoted, he may have been simply counselled, nothing may have happened to him. I chose to explain those range of options."6

[54] It was submitted by counsel for Mr Gunston that where there was a conflict in the evidence, Commissioner Abey had the benefit of observing the witnesses at first instant, and as such, was best placed to make an assessment of that evidence. He submitted that Mr Gunston's evidence was clear and unequivocal and that he was familiar with the disciplinary processes of Tasmania Police. He said that Commander Tully exceeded his instructions and made no contemporaneous notes during the counselling.

[55] The comment by counsel for the Commissioner of Police that Mr Gunston "had a motive for being untruthful" was rejected by his counsel as not being supported by the evidence. We also are of the view that it is not supported by the evidence and we find the comment unnecessary.

[56] Commissioner Abey found that there was a conflict in the evidence as to whether a final warning was given, and concluded that "there was a misunderstanding of some sort." We agree with his finding in that respect and are of the view that, having considered the evidence before him, such a finding was reasonably open to him. We are of the view that no final warning which could lead to dismissal, in the terms suggested by the Commissioner of Police, had been given by Commander Tully. In that respect we note the comment of Commissioner Abey which states:

[57] We reject appeal ground 5.

Appeal Ground 6:

That Commissioner Abey erred in finding that it was neither open nor appropriate for Commander Tully on 24 August 2001 to give Mr Gunston a warning that future misconduct by him could lead to his dismissal from Tasmania Police.

[58] At paragraph 133 Commissioner Abey said:

"[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."

[59] The letter from the Acting Deputy Commissioner states:

"Please inform him that a recurrence of any similar behaviour will result in him being asked to show cause why the Commissioner should retain confidence in him to perform the duties at the rank of sergeant."

[60] Commissioner McCreadie, in his sworn evidence, said that there was "counselling and there's wise counsel" and that he was not surprised that Commander Tully had a "fairly good heart to heart" with Mr Gunston at the time of implementing the direction of the Acting Deputy Commissioner.

[61] Counsel for Mr Gunston submitted that Commander Tully went beyond the parameters of the warning he was required to give to Mr Gunston and it was the Commander's evidence that:

"I told him his future in the job depended on (a) keeping his nose clean; keeping his head down keeping out of strife and proving that he could perform as a sergeant at Queenstown."8

[62] Accordingly, counsel for Mr Gunston said, there could well be a conflict in relation to the accounts given by Commander Tully and Mr Gunston as to the type of warning given and as such it was open to Commissioner Abey to come to the conclusion he did.

[63] We do not accept that the evidence suggests that a final warning had been given to Mr Gunston. If a final warning is to be given to an employee it must be clear and concise and not subject to any misunderstanding, in this case there was no such type of warning. Further, for an organisation which relies heavily on discipline and procedure "wise counsel" or a "heart to heart" which exceeds the instruction given and is not recorded in any documentation, in our view, cannot be relied upon as evidence that Mr Gunston was on notice that dismissal was likely in the event of any further misdemeanour. Commander Tully's evidence does not support such a conclusion.

[64] Commissioner Abey, in our view, has made no error, if Commander Tully exceeded his instructions that is a matter for the Commissioner of Police and we have no difficulty, in fact would encourage the approach adopted by Commander Tully as being a good and sensible human resource practice, however we do not accept that "wise counsel" or a "heart to heart" constitute a formal warning and can be relied upon as such.

[65] We reject appeal ground 6.

Appeal Ground 7:

That Commissioner Abey erred in finding that the Commissioner of Police could not rely on the warning given by Commander Tully to Mr Gunston on 24 August 2001 as a final warning when making the decision to dismiss Mr Gunston.

[66] On behalf of Mr Gunston it was submitted that it was not open to the Commissioner of Police to consider the warning given by Commander Tully as a final warning. It was noted that at page 538 of transcript that Commissioner McCreadie said:

"The reality is, that even if he hadn't been properly warned, that wasn't the issue that was critical to his dismissal."9

[67] We have addressed appeal ground 7 in our consideration of appeal ground 6, and as noted therein we are of the view that "wise counsel" and a "heart to heart" do not constitute a formal warning under a disciplinary process. The extent to which any reliance could be placed on the process is found in the instruction issued by the Acting Deputy Commissioner. Commissioner McCreadie said in evidence that the issue of whether Mr Gunston had been warned by Commander Tully was a factor in his consideration, it was his evidence that "I wasn't compelled to decide one way or the other whether the warning was complete or in the form that either person said that it might have been. But it was a factor."10

[68] The finding by Commissioner Abey that Commander Tully had not given Mr Gunston a final warning was one that was open to him on the evidence and we detect no error.

[69] We reject appeal ground 7.

Appeal Ground 8:

Commissioner Abey erred in failing to give sufficient weight to Mr Gunston's misconduct prior to the conduct which led to his dismissal when considering whether his dismissal was unfair.

[70] The Commissioner of Police referred to a number of incidents of misconduct from 1987 onwards and submitted that Commissioner Abey's description of those incidents "understate their seriousness." Commissioner Abey has recorded all of the incidents to which he was referred and noted that in respect to the incident in 1989 that Mr Gunston had been "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." Following that incident Mr Gunston's six-month report recorded the following:

"Constable GUNSTON is an extremely well presented and well spoken young member, who has carried out his duties at the Information Bureau in an efficient manner. He is enthusiastic and works on shift without any direct supervision.

The Constable gets along very well with the staff at the Bureau, both police and State Service.

This members' conduct has been excellent and although a number of females are employed in the Bureau there has not been the slightest hint of misconduct on the Constables' (sic) part."

[71] Commissioner Abey noted at paragraph 112 that:

"[112] It would appear that he subsequently returned to operational duties and in 1991 successfully completed the senior constables and detective training courses."

[72] Since that time there had been a conviction for a drink driving offence and counselling in respect to a "largely domestic incident."

[73] Counsel for Mr Gunston submitted that Commissioner Abey had weighed up all of the evidence presented and had balanced the incidents of misconduct with the positive aspects of Mr Gunston's performance and, that it was open to him to conclude that Mr Gunston was a "competent operational police officer, well regarded by subordinates and the public." Appeal ground 20 also relates to this appeal ground.

[74] Whilst the appeal ground claims error on the part of Commissioner Abey for not applying sufficient weight to those incidents we note that Commissioner McCreadie himself did not rely on them in any cumulative way, he conceded that the "disciplinary problems - that have beset Mr Gunston's career over the period"11 weren't the dominant factors and the dismissal was not linked to that prior misconduct.

[75] We do not accept that Commissioner Abey failed to accord sufficient weight to that prior conduct, he addressed it all, noted Mr Gunston's performance record since those incidents, recorded a number of commendations received by Mr Gunston during his career and concluded at paragraph 120 that, other than counselling in respect to the incident of August, 2001, that "the picture emerges of a competent operational police officer, well regarded by his subordinates and the public."

[76] He further noted that the 1989 incident was "particularly serious" but that it was "now 12 years on" and Mr Gunston had paid a price at the time and responded positively. We are of the view that if the purpose of counselling and disciplinary action is to change behaviour and performance, it would seem that Mr Gunston has, as Commissioner Abey found, responded positively.

[77] We reject appeal ground 8 as we are satisfied that Commissioner Abey has considered the relevance of the previous incidents of misconduct and has applied sufficient weight to that evidence and submission. We agree with Commissioner Abey that the incidents referred to may have some historical relevance, however they were dealt with at the appropriate time and are mostly long past.

[78] We reject appeal ground 8.

Appeal Ground 9:

That Commissioner Abey erred in failing to give sufficient weight to the standards of conduct required of members of Tasmania Police both whilst on duty and off duty when considering whether Mr Gunston's dismissal was unfair.

[79] Commissioner Abey found at paras 154 and 155 that:

"[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] What 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."

[80] In dealing with the application before him Commissioner Abey was required to deal with matters relevant to Mr Gunston's termination in accord with the provisions of the Act, the evidence and submissions of the parties and any authorities upon which reliance was placed.

[81] Commissioner Abey found that the matter before him which he accepted, "without hesitation," was not the behaviour itself but the location in which it occurred.12

[82] Counsel for Mr Gunston submitted that the relevant test to apply was that cited in Rose v Telstra [AIRC 1444/98 Print Q9292] (Rose) and that Commissioner Abey had given sufficient weight to the standard of behaviour expected of employees. Commissioner Abey had cited each of the authorities relied upon by the Commissioner of Police even though, it was submitted, many of those authorities can be distinguished from this case.

[83] Whilst there was a deal of evidence and submissions presented about the standards of conduct required of members of Tasmania Police it was not necessary for Commissioner Abey to consider that evidence and submission in any moralistic way. He did recognise the high standards of behaviour expected of police officers and noted such recognition in his decision. We are satisfied that he applied sufficient weight to the evidence and submissions in considering the application before him and took into account all relevant factors.

[84] Commissioner Abey was required to consider whether the termination of Mr Gunston was fair and for a valid reason not to determine what are acceptable moral standards and behaviour required of members of Tasmania Police. He has applied the tests found in the decisions in Bi-Lo and Selvachandran.

[85] We detect no error and reject appeal ground 9.

Appeal Ground 10:

That Commissioner Abey erred in failing to give sufficient weight to the special nature of the relationship between police officers and the Commissioner of Police and the necessity for the Commissioner of Police to maintain confidence in his police officers when considering whether Mr Gunston's dismissal was unfair;

[86] It was submitted by the Commissioner of Police that Commissioner Abey failed to give sufficient weight to the relationship between police officers and the Commissioner of Police and the necessity for the Commissioner of Police to maintain confidence in his officers. Reference was made to a paper by Mr GW Crooke QC, "Professionalism in Policing Corruption" where he observed:

"It is beyond question that the leader of the police service, the police commissioner, must be a person of the highest integrity. The buck stops with him or her. How is a police commissioner going to fulfil his or her duty to the community to ensure that a professional service is delivered if there are members who do not practise with the dedication and integrity of professionals."

and further

"....it is only appropriate that the police commissioner should be able to select his or her team and not have to take the field carrying those in whom he or she has no confidence. Stated differently, the police commissioner, who bears ultimate responsibility for delivery of policing services, should not have to take an unacceptable risk. To add another important, and often overlooked dimension, nor should the community."

[87] Counsel for Mr Gunston submitted that the claim that the Commissioner of Police alone determines whether a police officer continues to serve is contrary to the evidence where the Commissioner of Police indicated that he did not act in a quasi judicial capacity.

[88] The paper from which the above extracts were drawn discussed issues related to corruption rather than the type of behaviour the subject of these proceedings - behaviour which breached no law, was done without any intention to offend and was performed in private between consenting adults.

[89] Parliament has now given jurisdiction to this Commission to hear and determine "matters and things arising from, or relating to, industrial matters..." for employees being: "private employee or a State employee, and includes (d) a person appointed under section 9, 9A, 10 or 12 of the Police Regulation Act 1898." An industrial matter is defined as including: "(iii) the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed."

[90] The Commissioner of Police submitted that he has a responsibility to the community to ensure that any police officer whom he believes is not fit to serve as a police officer is dismissed. That is not an unfettered right and a police officer has a right under the terms of the Act to challenge a dismissal. That was the matter heard and determined by Commissioner Abey.

[91] That process, in our view, does not in any way diminish the responsibility of the Commissioner of Police, but provides a right of review to any decision he may make based on his belief that a particular individual is not a fit and proper person to serve as a police officer. The paper by Crooke QC, relied upon by the Commissioner of Police, considers the right of review is an important one but states that such review should not abandon the essence of the managerial nature of the process to introduce a formal legal process. In simple terms, Commissioner Abey has determined that the decision to dismiss Mr Gunston was, in all the circumstances, made on incorrect information.

[92] The right to review ensures that proper process is undertaken and any decision is well founded and based on factual and defensible criteria.

[93] We are satisfied that Commissioner Abey gave sufficient weight to the relationship but balanced that relationship with the rights of Mr Gunston and we detect no error.

[94] We reject appeal ground 10.

Appeal Ground 11:

That Commissioner Abey erred in giving any or undue weight to his perception that there was no widespread moral outrage concerning the conduct which led to Mr Gunston's dismissal which was likely to cause lasting damage to the standing of Tasmania Police when considering whether Mr Gunston's dismissal was unfair.

[95] Commissioner Abey found that there was no evidence of widespread moral outrage. The direct evidence is that the episode was a "bit of a joke", and one of the on duty police officers at the hotel on the night in question testified that "they had a bit of a laugh" about the incident. It is not the role of this Commission to make determinations about standards of morality and we find no error with Commissioner Abey's finding, particularly as he notes that those expressing an opinion, including police witnesses, were doing so relying on a "very second hand version" of events. He noted further at paragraph 162 that:

"[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."

[96] Commissioner Abey was required to consider the application before him in terms of the legislation, the evidence and submissions presented.

[97] It is our observation that some sections of the media have reported these proceedings in excessively sensationalist, prurient and, at times, inaccurate terms. If there is any "widespread moral outrage," and we are not convinced that such is the case, then it has more to do with the public hearing, and the manner of the reporting of that public hearing, rather than the facts of the case.

[98] We do not detect any error on the part of Commissioner Abey and reject appeal ground 11.

Appeal Ground 12:

That Commissioner Abey erred in finding that the Empire Hotel was in the process of closing if not officially closed at the time Mr Gunston engaged in the conduct which led to his dismissal.

[99] Commissioner Abey found at paragraph 86 of his decision that:

"[86] Last drinks had been called and the hotel was in the process of closing, if not officially closed."

[100] It was claimed by the Commissioner of Police that the evidence presented to Commissioner Abey established that the hotel was definitely still open at the relevant time.

[101] It was submitted by counsel for Mr Gunston that the evidence supports Commissioner Abey's finding that the hotel was closed or was in the process of closing. It was submitted that Ms B testified that "we were closing"13 and that Constable Wolfe assumed the hotel was shut.14

[102] The evidence of Mr M is that the hotel was either closing or was closed. Mr M said "....we were closing the hotel at the end of the night," and "yes, well like I said before it was closing time," and again "... I can't recall who was in the bar, I think at that stage the bar was basically empty as far as I can remember, like everyone was basically leaving."15 It would seem to us that the finding by Commissioner Abey that the hotel "was in the process of closing, if not officially closed" was reasonably open to him on the evidence presented and we can find no error with that finding.

[103] We reject appeal ground 12.

Appeal Ground 13:

That Commissioner Abey erred in finding that it was unlikely that new customers would have been admitted to the Empire Hotel at the time Mr Gunston engaged in the conduct which led to his dismissal.

[104] Commissioner Abey found at paragraph 87 that:

"[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."

[105] The Commissioner of Police submitted that the finding by Commissioner Abey was "nothing more than speculation" and that the evidence did not permit such inference be drawn.

[106] Counsel for Mr Gunston relied on the same extracts from transcript referred to in appeal ground 12 in support of the finding of Commissioner Abey that it was unlikely that new customers would be admitted to the hotel.

[107] We note that it was the evidence of Mr M that "... I wasn't too worried at that stage because I knew everyone else was left you see, so I knew no-one was going to witness it so I wasn't overly worried about it."16 Mr M responded in the negative to the question "Do you know if anyone else was in the vicinity of the coffee lounge at the time you went there?"17

[108] It would seem to us that the evidence, albeit not definitive, would support the finding of Commissioner Abey which was reasonably open to him and we find no error.

[109] Appeal ground 13 is rejected.

Appeal Ground 14:

That Commissioner Abey erred in finding that the likelihood that the conduct of Mr Gunston which led to his dismissal would be observed was `low, perhaps even remote.'

[110] In Commissioner Abey's decision he said at paragraph 196:

"[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.

[111] The Commissioner of Police argued that the finding by Commissioner Abey was not open to him on the evidence. It was submitted that the evidence of Ms L, Mr M and Ms B suggested that there was a high probability of Mr Gunston and Ms L being observed. The Commissioner of Police relied in part on the record of Ms L's interview where she expressed some apprehension about the location as there was no guarantee she and Mr Gunston would not be disturbed as she thought it was a "public place", there was no door and anyone could have access to the area. We note that Ms L denies having used the words "public place",although they appear in her record of interview, however nothing hangs on the apparent misunderstanding as to the actual words used.

[112] In response it was submitted by counsel for Mr Gunston that the evidence does not support a finding as proposed by the Commissioner of Police. Reliance on the transcript extracts referred to in appeal grounds 12 and 13 support the finding that the likelihood of the conduct being observed was "quite low, perhaps even remote." There was no evidence to suggest that patrons in the bar would venture to the area, and although there were house guests in the hotel, there was no evidence to suggest that they were likely to observe the conduct.

[113] The following is recorded in transcript:

"Q. So irrespective of whatever views you had about the privacy of the area, it's true to say that you were worried about being disturbed there?'

Ms L responded:

A. Not overly because it was late and I knew there weren't many people around."18

[114] It was Mr M's evidence also that he was not overly worried as no-one was going to witness what had happened as there was no-one in the vicinity. Ms B said that it was closing time and that when she had observed that Mr Gunston and Ms L had left the bar the hotel was "preparing to close, there were still people finishing off their drinks".19 Further it was her evidence that "I walk through the pub all night and make sure no-one goes up that area at all because I'm against it."20 She said that "We were closing" and that there were "still people in the hotel but there was only like five people left in there."21 Ms B noted that the area did not have a door but said "Well, normally no one goes out in that area. We like to keep that closed down because of the staircase."22 In her record of interview when discussing whether the area was easily located and whether people would notice it she said that "They do if they're gonna go upstairs, but other than that you don't really - people don't take any notice that it's there actually."

[115] We have carefully reviewed the evidence in respect to this issue and we are of the view that Commissioner Abey was correct when he said that the likelihood that the conduct would be observed was "low, perhaps even remote." It is apparent that, for whatever reason, the Commissioner of Police formed a different view but the evidence clearly supports Commissioner Abey's finding.

[116] We detect no error and reject appeal ground 14.

Appeal Ground 15:

That Commissioner Abey erred in finding that it was unlikely that either Mr M or Ms B witnessed Mr Gunston performing oral sex on Ms L.

[117] It was submitted by the Commissioner of Police that both Mr M and Ms B had witnessed the behaviour.

[118] According to counsel for Mr Gunston the evidence of Ms B is contradictory and there were inconsistencies between her record of interview and sworn testimony. Neither Ms B or Mr M had observed the behaviour and both had made a presumption, Mr M had told Ms B what he thought was taking place, and Ms B proceeded to investigate for herself, maybe twice. Ms B's sworn evidence was that she saw "movement that looked like it could have been..." and that in her record of interview she "wasn't looking at that....." It was also her evidence that "I can't really remember, only bits and pieces of it" when being examined about her responses in the record of interview.

[119] Ms L testified that Mr M had interrupted she and Mr Gunston but that when Ms B arrived on the scene "... we weren't doing what we had been doing."23 The evidence of Ms B does not support the submission of the Commissioner of Police that she had witnessed the behaviour, albeit her evidence was inconsistent, but in any case Commissioner Abey found only that it was unlikely that Ms B and Mr M had witnessed the behaviour. Mr M testified that he "didn't see an act of it. It was only presumption ...".24 In consideration of the evidence we are unable to find any error in the finding of Commissioner Abey and confirm that finding.

[120] We reject appeal ground 15.

Appeal Ground 16:

That Commissioner Abey erred, when considering whether Mr Gunston's dismissal was unfair, in giving undue weight to his finding that when performing oral sex upon Ms L at the Empire Hotel on the night of 12/13 October 2001 Mr Gunston was not intending to deliberately offend or confront.

[121] At paras 201 to 203, Commissioner Abey found:

"[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."

[122] The Commissioner of Police claimed that Commissioner Abey placed `great' weight on the above findings arguing that he failed to have regard to a number of issues which in general terms were related to Mr Gunston's position in the community as a police officer, that Mr Gunston should have been aware that anybody witnessing the behaviour would have been offended and that it was apparent that there was a real risk that he and Ms L may be found. Reliance was placed on a decision of the Full Court of the Supreme Court of South Australia in Police v Pfeifer [(1997) SASC 6172 at paragraph 55] (Pfeifer).

[123] That decision is an appeal against a decision of a single Judge and deals with mens rea in statutory offence whether it is necessary to prove intent or knowledge to obtain a conviction for the statutory offence of behaving in an offensive manner. The matter related to s.7(1) of the Summary Offences Act, 1953, which provides:

"A person who, in a public place or a police station - (a) behaves in a disorderly or offensive manner; or (b) fights with another person; or (c) uses offensive language, is guilty of an offence."

[124] It would seem that Pfeifer is a matter about a person subject to a complaint of behaving in an offensive manner. In the matter the subject of appeal, there was no complaint raised, so the relevance of the reference, which deals with the question of mental element, if any, to be established to obtain a conviction for the statutory offence of behaving in an offensive manner, is somewhat diminished.

[125] Commissioner Abey referred to the following extract from the decision of Von Doussa J in Sangwin v Imogen [26 No. SA 95/1161IR (Decision No. 73/96)] (Sangwin):

"It has been held that a 'valid' reason exists where the employer had a 'sound, defensible or well founded' reason for termination of the applicant's employment ... these dictionary definitions for the word 'valid', whilst wide enough to include a reason based on an honest belief held on reasonable grounds ..."

[126] And at paragraph 194 said

"[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."

[127] On behalf of Mr Gunston it was submitted that there was no intention to offend, he had consumed a large amount of alcohol and there is the possibility that he may have also consumed a drug without his knowledge - that claim relates to the allegations about drink spiking which were raised but were not a determinative factor in Commissioner Abey's decision.

[128] We agree with the finding of Commissioner Abey that Mr Gunston was not intending to deliberately offend or confront by his behaviour, accordingly we find no error and reject appeal ground 16.

Appeal Ground 17:

That Commissioner Abey erred in misstating the extent of the concerns of Ms B in respect of the conduct of Mr Gunston at the Empire Hotel on the night of 12/13 October 2001.

[129] Commissioner Abey noted at paragraph 14 that the incident between Mr Gunston and Ms L was a matter of discussion between two on-duty police officers and bar staff, but that "No formal complaint was lodged and there is evidence that suggests that the incident was the source of some amusement." At paragraph 68 Commissioner Abey referred to the evidence of Ms B which related to her being angry that there were people in the coffee lounge area around closing time where she said "... I hate anyone being up there because it frightens me." She agreed that was the only reason she was angry. Her evidence generally reveals that the incident was seen to be "fairly funny," and "but God you gotta have a bit of a laugh" and "it pisses me off cos they've both got homes to go to."25 Her alleged concerns were in respect to the location rather than the conduct.

[130] Mr M testified that he thought at one stage that Ms B was irate or angry but said "... I mean my recollection of it now was - well, she would have been initially, I guess pissed - or upset but it was more - I mean after that it was just a big joke in her eyes"26 and further "She'd gone and kicked them out and she came back and it was - yes - she seemed to think it was quite funny and she was like glad it had happened almost."27

[131] In respect to the behaviour in the hotel lounge the evidence was contradictory as Mr M said that, although Mr Gunston and Ms L were kissing, he couldn't "Recall him having his arms around her or anything like that. It wasn't that passionate I don't think."28 Whereas Ms B said that she saw them kissing and that it was "passionate" but that she "just took one look and sort of just kept on going." She said that they "....were mauling each other, you know, arms around each other," and that the incident was the subject of some comment in the bar where people "... were just laughing and - have a look at that."29 Ms B's sworn evidence and the record of her interview are not contradictory in fact but are contradictory as to degree. She testified on a number of occasions that she could not remember details and agreed that if she had said something in her record of interview then it must be correct.

[132] In response, counsel for Mr Gunston relied in part on his submissions in response to appeal ground 11 and submitted that Ms B was not offended but angry because she did not like patrons being in the area late at night.

[133] The evidence suggests that any concerns held by Ms B were more to do with her being angry that anyone was in the coffee lounge area rather than the behaviour of Mr Gunston and Ms L.

[134] We are of the view that Commissioner Abey made no error and that his findings were reasonably open to him on the evidence placed before him.

[135] Appeal ground 17 is rejected.

Appeal Ground 18:

That Commissioner Abey erred, when considering whether Mr Gunston's dismissal was unfair, in failing to give any or sufficient weight to the belief of the Commissioner of Police that Mr Gunston's performance of oral sex on Ms L at the Empire Hotel on the night of 12/13 October 2001 constituted a breach of Section 13(1)(a) of the Police Offences Act 1935.

Appeal Ground 19:

That Commisioner Abey erred, when considering whether Mr Gunston's dismissal was unfair, in failing to give any or sufficient weight to the evidence suggesting that Mr Gunston's performance of oral sex on Ms L at the Empire Hotel on the night of 12/13 October 2001 did in fact constitute a breach of Section 13(1)(a) of the Police Offences Act 1935.

[136] The two grounds of appeal are dealt with together.

[137] It was claimed by the Commissioner of Police that he believed that Mr Gunston's behaviour had in fact constituted indecent or offensive behaviour within the terms of the Police Act and as such that belief, if reasonably held, constituted a valid reason for dismissal. Further it was submitted that the conduct was offensive or indecent within the meaning of s.13(1)(a) of that Act.

[138] Counsel for Mr Gunston submitted that it was inappropriate for the Commissioner of Police to assert that Commissioner Abey should give any weight to what is only an allegation of a breach of the Police Act. The authorities on which the Commissioner of Police relied relate to criminal behaviour, where charges had been laid, and are distinguishable from this matter.

[139] Commissioner Abey found that, consistent with the decision in Allen v Commissioner of Australian Federal Police [Federal Police Disciplinary Tribunal (1983) 78 FLR 21] (Allen), where it was found that "a breach of the criminal law would, in the case of a police officer, very likely constitute a valid reason for dismissal" but noted that Mr Gunston had not been charged with a breach of s.13(1)(a) of the Police Act and "all we have is an assertion that the law has been broken."30

[140] Commissioner Abey made no finding in relation to the submissions that there had been a breach of the Police Act and neither he should. He noted that it was an assertion or belief only of the Commissioner of Police that there was any breach and no charges had ever been laid. As such we do not detect any error on Commissioner Abey's part and are of the view he has applied the appropriate weight to that submission.

[141] Appeal grounds 18 and 19 are rejected.

Appeal Ground 20:

That Commissioner Abey erred in failing, when considering whether Mr Gunston's dismissal was unfair, to give any or sufficient weight to the concerns of the Commissioner of Police in relation to:

(a) the inappropriate sexual conduct of Mr Gunston witnessed by Sergeant Whitwam and others at the Queenstown Police Station on 21 May 2001;

(b) the misleading report, dated 23 June 2001, submitted by Mr Gunston to Inspector Bonde concerning the issue of who was driving a Queenstown police vehicle detected speeding on 20 May 2001;

(c) misleading statements in Mr Gunston's response to the show cause notice served upon him as to his recollection of whether Ms L slept at his residence on the night of 12/13 October 2001 and the extent to which his conduct at the Empire Hotel on that night had become public knowledge in Queenstown;

(d) the evidence of Mr Gunston concerning events leading up to the domestic incident between himself and Ms Heather Bell at her residence on 27 March 2002 which led to police being called to attend her residence.

[142] Appeal ground 20(d) is not being pursued as it relates to allegations raised after the decision of Commissioner Abey had been issued.

[143] In appeal ground 20(a) the Commissioner of Police claims that Commissioner Abey did not place sufficient weight on the evidence of Sergeant Whitwam about an incident at a social function at the Queenstown Police Station in May, 2001.

[144] On behalf of Mr Gunston it was submitted that the incident discussed by Sergeant Whitwam was not known at the time of the termination, no complaint was ever raised and Mr Gunston was never informed of the complaint or counselled about the incident.

[145] The evidence of Sergeant Whitwam suggested some embarassment about the claimed behaviour of Mr Gunston. The evidence also indicates that when Mr Gunston was requested to cease doing what it was that Sergeant Whitwam found embarasssing he did so. No complaint was made at the time of the incident and Mr Gunston was not counselled or disciplined about the alleged behaviour.

[146] Counsel for Mr Gunston said that in respect to appeal ground 20(b), which refers to Mr Gunston having been spoken to by Inspector Bonde, there was no evidence that he was counselled about that incident or that it was investigated at the time.

[147] The transcript would indicate that there was a difference of opinion between Mr Gunston and Inspector Bonde, but there is no evidence of counselling or formal complaint.

[148] On behalf of Mr Gunston it was submitted that appeal ground 20(c) is misconceived as it was only after it was suggested by Sergeant Dooley that Mr Gunston could be mistaken was any doubt put in his mind.

[149] In respect to ground 20(c), the responses given to the show cause notice are not misleading in our view, they do reveal some doubt or confusion about the events of 12/13 October, 2001, for the reason stated, also Mr Gunston is doing no more than expressing a view as to his knowledge of the extent to which the incident would become "broad public knowledge." Commissioner Abey has looked "at the facts of this case" and we are satisfied that his findings were reasonably open to him,

[150] The incidents referred to in this ground of appeal were not known to the Commissioner of Police at the time of the dismissal but were matters raised during the hearing of Mr Gunston's application.

[151] They are allegations and hearsay which seem to us to be somewhat trivial and for which no complaint has been made. We do not detect any error on the part of Commissioner Abey, and it is our view that he has dealt with the evidence in an appropriate manner.

[152] Appeal ground 20 is rejected.

Appeal Ground 21:

That Commissioner Abey erred, when considering whether Mr Gunston's dismissal was unfair, in placing any or undue weight on the mistaken belief of the Commissioner of Police as to:

(a) whether in the position that Mr Gunston performed oral sex on Ms L at the Empire Hotel on the night of 12/13 October 2001 he could have been observed by persons in the foyer of the Hotel;

(b) whether Ms B was the first person to lodge a complaint with Tasmania Police concerning the conduct of Mr Gunston which led to his dismissal.

[153] It was submitted that Commissioner Abey placed undue weight on the fact that the Commissioner of Police was mistaken in his belief in respect to two aspects of the incident upon which he relied for the dismissal of Mr Gunston. Commissioner Abey said that "the misunderstandings on Commissioner McCreadie's part assume considerable significance."31

[154] On behalf of Mr Gunston it was submitted that it was appropriate for Commissioner Abey to place weight on the mistaken belief of the Commissioner of Police as the Commissioner of Police had conceded that it was not the conduct of Mr Gunston which gave rise to the decision to dismiss but the location of the conduct.

[155] In respect to the mistaken belief of the Commissioner of Police that Ms B had lodged the complaint and that she had observed the behaviour, those issues did impact on the decision of the Commissioner of Police to dismiss Mr Gunston.

[156] It would seem to us that the fact that the Commissioner of Police acted on incorrect information when deciding to dismiss Mr Gunston is a significant factor to take into account when considering a claim of unfair dismissal. Particularly in respect to ground 21(a) which is in contradiction of the evidence as to the events of the night in question which suggest that it was unlikely, "perhaps even remote," that Mr Gunston and Ms L would be observed, according to Commissioner Abey. The hotel was closing or closed, there were few people left in the bar, none of whom ventured beyond the bar area, those in the bar were finishing their drinks prior to departing the hotel, it was not an area frequented by patrons late at night and was regularly patrolled by the bar staff. The area was in darkness, was up a flight of stairs and not able to be seen from the hotel foyer.

[157] Mr M's evidence was that he had not gone specifically looking for Mr Gunston, he said "I wouldn't say actually - what happened is, we were closing the hotel at the end of the night and I'd noticed that he wasn't there and I couldn't recall seeing him leave so I wondered where he was. Now sometimes we get people that go up to the coffee lounge and they'll just sit up there because it's a lot quieter out of the bar and that type of thing and I just noticed he wasn't there and I was wondering where he was and part of your duties at the end of the night is to always check the coffee lounge to make sure people haven't gone up there; you know, they might get drunk and they might fall to sleep or something like that and you don't want to lock anyone in because you've got to set the alarm so we always check it. At that stage when I went up there the light was off in the coffee lounge and that's why I thought it was a bit strange because we're the only one who are supposed to turn the lights on and off."32

[158] The evidence of Mr M supports the finding of Commissioner Abey that it was unlikely, or perhaps even remote, that Mr Gunston and Ms L were able to be observed. We detect no error in Commissioner Abey's finding.

[159] In respect to the Commissioner of Police believing that Ms B lodged the complaint it was recorded by Commissioner Abey and remains unchallenged that:

"[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."33

[160] At paragraphs 172 to 176 of Commissioner Abey's decision he refers to the issue of the Commissioner of Police being of the understanding that Ms B was the complainant. We record those paragraphs below:

"[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. From the evidence it is clear that Commissioner McCreadie was under the impression that Ms B had lodged the complaint.

"Your notice refers to a complaint received from Ms B. Was that your understanding?............ Yes.

That she was - ?............ She was actual person who brought it to our attention in the first place, is my understanding."

[173] This clearly is not the case. On the evidence of Constable Wolfe, no complaint was lodged on 13 October. The Chronology of Events 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.

[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."

[161] At page 527 of transcript the Commissioner of Police said:

"I guess I'm here in this environment to justify that decision but up until then, I've got to satisfy people that I've considered very, very carefully and that I've considered all the factors we've talked about over the last few hours."34

[162] The findings of Commissioner Abey in respect to both grounds 21(a) and 21(b) were properly based and the appropriate weight applied on a consideration of the evidence before him, were reasonably open to him and we can detect no error.

[163] We have previously said that a decision to terminate based on incorrect information or a mistaken belief is fundamental to whether the termination was for a valid reason or was unfair.

[164] We reject appeal ground 21.

Appeal Ground 22:

That Commissioner Abey erred when considering whether Mr Gunston's dismissal was unfair, in placing undue weight on the failure of Tasmania Police to implement the recommendation contained in Sergeant Dooley's report of 3 July 2001 to Commander Wild (referred to in Commander Wild's report of 15 August 2001 to the Acting Deputy Commissioner of Police) that Mr Gunston attend a counselling session with Dr Ryan to assess his level of alcohol consumption and the impact (if any) such consumption may have on his work performance.

[165] Commissioner Abey recorded his concern that the recommendation by Sergeant Dooley that Mr Gunston receive counselling about alcohol consumption was not acted upon by the Commissioner of Police. The Commissioner of Police submits that the evidence would suggest that had the recommendation been implemented it would not have prevented the incident at the Empire Hotel as it was not due to any alcohol problem.

[166] On behalf of Mr Gunston it was said that Commissioner Abey was entitled to place significant weight on the fact that no action was taken in respect to the recommendation referred to in Commander Wild's report. The issue of Mr Gunston's alcohol consumption on the night in question played a significant role in the conduct resulting in the decision to terminate.

[167] The evidence certainly suggests that the incident was as a result of excessive alcohol, Mr Gunston's evidence confirms that view and his transcript of interview records that "I had quite a bit to drink that night." Bar staff at the hotel were able to say what he had been drinking, how long he had been in the hotel, how much he had consumed and there were views expressed as to his state of sobriety. It would seem to us, as it did to Commissioner Abey, that if alcohol was a problem, as it appeared to be, then the recommendation should have been implemented and we agree with Commissioner Abey's finding on that matter, he made no error and was entitled to apply significant weight to that issue.

[168] Counsel, on behalf of the Commissioner of Police alleged that "If Mr Gunston were prepared to give false evidence on oath to the Commission concerning his alcohol consumption, it would be probable he would mislead Dr Ryan concerning same." We are uncertain as to the intent of the preceding comment and agree with counsel for Mr Gunston that the submission cannot be sustained. It seems to us that there is no basis for such submission and it is little more than a gratuitous comment and an unnecessary slur on Mr Gunston's integrity supported by no evidence.

[169] We reject appeal ground 22.

[170] In consideration of our statutory responsibilities, and having considered the submissions before us in these appeal applications, we have found that Commissioner Abey did not act on any wrong principle, did not allow extraneous or irrelevant matters to guide or affect his decision, he did not mistake the facts and has taken into account all material considerations. Further, we are of the view that the decision reached by Commissioner Abey was reasonably open to him and he has properly exercised his discretion in reaching his decision. Accordingly, we confirm the decision of Commissioner Abey as to his finding that there was no valid reason for the termination of Mr Gunston and that the termination was unfair.

[171] As noted earlier in this decision, we have addressed appeal grounds 1 to 22 of the appeal lodged by the Commissioner of Police. We will now list for hearing the appeal lodged by Mr Gunston, appeal grounds 23 to 27 of the Commissioner of Police's application and to also hear argument in respect to the application by the Commissioner of Police as to the admission of further evidence which relates to the matter of `remedy' and Commissioner Abey's determination that Mr Gunston be re-employed by Tasmania Police.

[172] The applications will be listed for hearing and determination of the remaining issues in Hobart at 9.30am on Wednesday, 19 March 2003.

P L Leary
PRESIDENT

Appearances:
Mr M Miller with Mr F Ogle for the Commissioner of Police
Mr C Green of Page Seager, Barristers and Solicitors for Mr A Gunston

Date and place of hearing:
2002
August 14
December 4
Hobart

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