WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES WAYNE RUSSELL MCGRATH

APPELLANT

-v-

COMMISSIONER OF POLICE

RESPONDENT

CORAM CHIEF COMMISSIONER A R BEECH

 COMMISSIONER P E SCOTT

 COMMISSIONER S WOOD

DATE FRIDAY, 8 JULY 2005

FILE NO. APPL 718 OF 2004

CITATION NO. 2005 WAIRC 01989

Result Appeal dismissed

Representation 

Appellant Mr W. McGrath

Respondent Mr R. Andretich (of counsel)

Reasons for Decision

1          This is an appeal by Mr McGrath against his removal from the WA Police Force pursuant to s.8 of the Police Act 1892 on 28 April 2004.  The reasons for the Commissioner of Police making the decision are set out in the letter to the Minister for Police and Emergency Services of 15 April 2004 which in turn was approved by the Minister on 28 April 2004 (AB 5).  This followed an investigation commenced by the South West District Police after information was received from Senior Constable Frank Castle involving himself and Mr McGrath who was then a Senior Constable attached to the Bunbury Traffic Office. 

The Commissioner of Police’s Reasons

2          The Commissioner of Police noted that on 1 August 2001 both officers were on duty involved in traffic patrol in a marked police vehicle.  They agreed, for their own amusement, to activate a multanova in Blair Street, Bunbury.  They therefore both returned to the Bunbury traffic office to deposit the marked car and to drive an unmarked car from which they removed the rear number plate and obscured the front number plate with a piece of paper on which the words “F… you” had been printed with a computer in the Bunbury office.  Both men then fashioned hoods out of material, either cloth or paper towel, which they placed over their heads and uniform for the purpose of avoiding detection. 

3          Senior Constable Castle then drove the unmarked vehicle accompanied by Mr McGrath as passenger to Blair Street where the vehicle was monitored and photographed passing the multanova at 8:55pm at a speed of 126km per hour, 66kms above the speed limit at the point on Blair Street.  Mr McGrath admits that when the vehicle passed the multanova he held up one of his fingers in a gesture of defiance which was captured by the multanova’s photograph.  Mr McGrath admitted that he knew it was necessary to exceed the speed limit to trigger the multanova, that he was a willing party to the commission of the offence and that the measures taken in respect of the vehicle used and the hoods was for the purpose of avoiding detection.  The officers then drove back to the traffic office where the unmarked vehicle was restored to its original condition and they continued with their duty. 

4          The Commissioner of Police noted that Mr McGrath’s summary of response commenced with a complete admission except for the material used to fashion the hood.  Mr McGrath stated he could not recall being responsible for producing the sheet of paper which was used to obscure the front number plate.  The Commissioner of Police noted that Mr McGrath described the conduct as “nothing more than a foolish attempt of humour, then serving as a catalyst to a form of stress relief”.  The Commissioner of Police provided extracts from Mr McGrath’s summary of response to provide some insight why the behaviour was engaged in.  Mr McGrath acknowledged that the incident was exposed in November 2003 only after differences arose between himself and Senior Constable Castle.  The Commissioner of Police stated that it seemed Mr McGrath regretted the behaviour having been exposed rather than having engaged in it at all.  The Commissioner of Police believed that Mr McGrath lacked an appreciation of the seriousness of the conduct he had engaged in. 

5          The incident generated a large amount of publicity and concern in the Bunbury area.  When it became known that officers acting in the course of their duty were responsible for the commission of an offence it was unsurprising that there were calls for the removal of both officers.  The Commissioner of Police stated that it is fundamental that an on-duty police officer who deliberately engages in the commission of an offence which he or she is on duty to detect or prevent demonstrates a complete incapacity for service as a police officer. 

6          The Commissioner of Police noted that everyone at some time does something foolish particularly when acting impulsively without thinking carefully about implications and consequences.  Provided the resulting actions are not so serious as to prohibit such a cause, isolated errors of judgement do not end an individual’s career, even for police officers from whom the community expects high standards. 

7          The Commissioner of Police noted he had carefully weighed all the information before him to consider whether this was such an occasion.  He had carefully considered whether a disciplinary charge, demotion and resulting substantial drop in salary would meet community expectations; this certainly would have been open if the officers had been off duty, using a privately owned car and the incident was an impulsive prank undertaken in a moment of foolishness.  The Commissioner of Police noted that, however, this was a well planned, carefully thought-out sustained series of steps based on deceit which culminated only after they had restored the unmarked police vehicle to its original condition.  Worse, it occurred whilst they were on duty and tasked with traffic enforcement: in essence they swapped roles and became offenders in an area of police enforcement for which they were being employed to prevent and detect. 

8          In doing so they breached the trust the public places in every officer and acted in defiance of their oath of service.  As a law enforcement agency their actions struck at the heart of the Police Service’s efforts in road traffic enforcement and ultimately denigrated its mission of making a safer and more secure community.  The behaviour of both clearly amounted to serious improper conduct inconsistent with the behaviour expected of members of the police service.  The Commissioner of Police was therefore of the view that the matter could not be adequately dealt with under the internal discipline system and believed that the most appropriate resolution for the matter was by way of s.8 of the Police Act 1892. 

9          The Commissioner of Police stated that he evaluated Mr McGrath’s conduct and integrity and did not consider he met the high standard required and expected of a member of the Police Service and accordingly he lost confidence in Mr McGrath’s suitability to remain as a member of it. 

Mr McGrath’s appeal

10       Mr McGrath’s appeal is on the following grounds.  He said that it is wrong to hold him equally responsible for the incident which occurred because he was a passenger and essentially passive.  Further, the incident was meant to be a practical joke and that it is an excessively harsh penalty to be dismissed when taking into account his 16 years of dedicated and disciplined service and his personal efforts to educate himself for the benefit of his career in the police service.  He is progressing towards an undergraduate university degree in justice studies.  His removal has caused him significant financial detriment; he stated that his financial loss was $25,000 to date. 

11       He stated that it is harsh that he was removed when the alternative option was to deal with his conduct by way of a disciplinary charge where a reduction in rank and or transfer from the district would have been a fair and adequate penalty.  The effect of such a penalty would result in a substantial drop in salary of $9,000 per year which would satisfy public expectations.  He also submitted that it was harsh, oppressive and unfair to be dismissed due to adverse publicity which was generated by the respondent in circumstances where the same conduct would not have resulted in his removal if the publicity had not occurred.  Finally, Mr McGrath submitted that since his removal the former Senior Constable Castle has made public comments to the media that should be taken into account as new evidence and information which might have caused disciplinary proceedings rather than removal proceedings to have occurred.

12       At the conclusion of his case Mr McGrath sought leave to tender new evidence.  This was not opposed by the Commissioner of Police.  For the Reasons set out in a decision which issued on 1 April 2005 (2005 WAIRC 00843), leave was granted to Mr McGrath to tender some, but not all, of the new evidence he sought to tender; the new evidence which was not allowed was that which was not permitted under the legislation largely because it was not new at all but had been known at the time he made his appeal: s.33R(4).  The hearing then re-convened on 13 June 2005 to receive further submissions on the new evidence which was tendered.

13       In his initial submissions to the WAIRC, Mr McGrath stated that while he did not dispute that he was the passenger in the vehicle, he played a minor and reluctant role.  He only reluctantly agreed to Mr Castle’s suggestion regarding the joke.  He recognised in hindsight that the incident was very serious but it had not been his idea.  In the re-convened hearing, Mr McGrath went further: he stated that the whole idea had been Mr Castle’s idea.  Mr McGrath said that he did not remove the number plates of the vehicle used and he did not produce the paper to cover the number plate; his own involvement had been only as a “reluctant, stupid passenger”.  He had not said this at the time he had been interviewed because he had not wanted to “drop in” a fellow officer.

14       In his submissions Mr McGrath acknowledged that he did not stop the incident or even try to stop the incident.  He stated that his holding up his finger was not an act of defiance at all, it was actually only ever meant to be a joke.  In response to a question from the WAIRC, he also said that holding up his finger did not show someone who was a reluctant participant.  Mr McGrath submitted that he did not know the speed of the vehicle at the time it triggered the multanova.  He asked the WAIRC to note that it could have been triggered by driving at 62km per hour and there is no evidence that he knew the actual speed of the vehicle because he had not been the driver.

15       Mr McGrath also referred to the details of his personal history as contained in his summary of response to the Commissioner of Police and the references in support of him.  He drew the WAIRC’s attention to the many distressing and dangerous situations he had encountered as a police officer and of his present personal circumstances.  He apologised to the WAIRC, his friends, family and former colleagues and stated that he would certainly be a far better police officer now than he had been at that time. 

16       He informed the WAIRC that it was conduct that cannot be condoned and he regretted engaging in the incident at all.  He acknowledged that it was conduct unbecoming a police officer although he acknowledged that at the time he was laughing pretty hard about the incident. 

17       In his further submissions Mr McGrath submitted that newspaper articles showed that his removal was pre-determined.  He stated that a newspaper article on 13 January 2004 stated that the two Bunbury police officers “will not be charged but are likely to be sacked”; this could possibly have influenced the decision of the Commissioner of Police.  Another newspaper article of 22 April 2004 contained a report of Mr Castle’s motives.  The newspaper article stated that Mr Castle had played the prank because he was frustrated at the way the police hierarchy treated him after complaints about his conduct at a Southwest festival.  Mr McGrath stated that his circumstances were different: Mr McGrath did not have “an axe to grind”; he was studying and attempting to better himself and he had plans for promotion.  He had therefore no reason to have done what he did, he just got “caught up in it all”. 

18       Mr McGrath also referred to a press report regarding an incident where nine off-duty police officers apparently taunted and humiliated American students from the University of Notre Dame.  Mr McGrath referred to reports that only one of the accused officers had been dismissed and submitted that his conduct compared with the six who had not been dismissed showed that his dismissal had been too severe a penalty.  Mr McGrath maintained that his conduct should have been dealt with under s.23 of the Police Act 1892. 

The Response of the Commissioner of Police

19       The Commissioner of Police submitted that the first newspaper article referred to was prior to the decision of the Commissioner of Police and did not show any pre‑judgement on the part of the Commissioner.  The second article had not been relied upon by Mr McGrath at the time that was most relevant to him, that is in his reply to the Commissioner of Police.  As to the comparative treatment of Mr McGrath compared to the incident at the Notre Dame University, the reason why the Commissioner of Police exercises his power under s.8 of the Police Act 1892 does not depend upon how misconduct is dealt with in other circumstances, it depends upon the assessment of the Commissioner of Police whether an officer is suitable to remain an officer. 

20       The Commissioner of Police also pointed out that it is only on this appeal that Mr McGrath has stated that he was an unwilling participant; when he had been interviewed, Mr McGrath stated that he could not remember who had initiated the idea or who had printed-off the notice to cover the front number plate.  The relevant issue is what both officers had agreed to do and what they participated in. 

Conclusions

21       Although from the point of view of Mr McGrath his removal from the Police Service pursuant to s.8 has the same effect as if he had been dismissed under that Act, he has in fact not been dismissed.  The removal of a Police Officer under s.8 is not a dismissal even if the consequence is the same for the officer concerned.  The essential difference between a dismissal and the removal of the officer is seen in the reason why each is done:  a dismissal is the ultimate penalty in a scale of penalties for conduct unbecoming or misconduct; a removal is where the Commissioner of Police, having regard to the officer’s conduct and integrity, loses confidence in the officer’s suitability to remain an officer.

22       That essential difference means that when an officer challenges his or her removal, the focus is not whether the penalty was too severe for the conduct or misconduct which occurred; it is whether the fact that the officer committed the conduct or misconduct can fairly lead to the conclusion that the officer is not suitable to be a police officer.

23       Conduct which is destructive of the mutual trust between a police officer and the Commissioner of Police is more likely to mean that removal under s.8 is more appropriate than a disciplinary charge under s.23 of the Police Act 1892.  It may justify the removal of an officer pursuant to s.8 having regard to the public interest which, by s.33Q of the Police Act 1892, is taken to include —

(i) the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force; and

(ii) the special nature of the relationship between the Commissioner of Police and members of the Force.

24       Whether the removal of an officer is harsh, oppressive or unfair will depend upon a consideration of all of the circumstances.  It is only then that the question can answered: has the Commissioner of Police’s right to remove Mr McGrath been exercised so harshly or oppressively against him as to amount to an abuse of that right?

25       This question is the same whether an employee has been dismissed by an employer and claims the dismissal is harsh, oppressive or unfair (it being the question stated by Brinsden J in Undercliffe Nursing Home v Federated Miscellaneous Workers Union (1985) 65 WAIG 385 and applied since that time), or whether an officer has been removed under s.8 by the Commissioner of Police (as the WAIRC has stated in the appeal taken by Mr Carlyon against his removal ((2004) 84 WAIG 1395 at [183]).

26       Therefore although Mr McGrath was removed, not dismissed, the question to be asked is the same.  In answering the question, the essential difference between a removal and a dismissal means that the WAIRC must not only have regard to the effect upon Mr McGrath; it must also have regard for the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of members of the Police Force and the special nature of the relationship between the Commissioner of Police and members of the Force.

27       We find the relevant facts to be these.  Mr McGrath, as a serving police officer of senior constable rank with 16 years’ experience, when he was on duty, amongst other things, to detect or prevent speeding and reckless driving, in company with another officer, for no reason:

(a) stopped doing the work he was there to do and returned the marked car to the traffic office yard;

(b) either assisted in disguising an unmarked car or, as he now says, did not assist but reluctantly participated in disguising it, including by the use of an obscenity over the front number plate and removing the rear number plate;

(c) disguised himself with paper or cloth over his head and shoulders;

(d) sat as a passenger in the car while it was deliberately driven at 66kms faster than the speed limit past a multanova in order to activate it;

(e) raised his finger at it when it activated;

(f) returned the unmarked car, assisted in restoring it to its original condition, removed his disguise and returned to duty;

(g) either at the time or soon after, laughed about having done so;

(h) did not act to dissuade Mr Castle or prevent the incident from occurring;

(i) did nothing about it for approximately two years.

28       The material before the WAIRC shows that Mr McGrath did not disclose the incident to any senior officer.  Indeed, it was not until Mr Castle informed a senior officer some two years after the event that the involvement of Mr McGrath in the incident came to light.

29       We conclude that the incident was a most serious incident because it occurred during the course of shift and it involved a deception on the part of Mr McGrath regarding his participation in the very conduct that he was on shift to prevent or detect.  As the Commissioner of Police observed, Mr McGrath and Mr Castle “swapped roles and became offenders in an area of police enforcement for which they were being employed to prevent and detect”. 

30       While we appreciate the sincerity with which Mr McGrath has now presented his case, we have not been persuaded that he was the reluctant participant that he now suggests.  Mr McGrath raising his finger when the camera flashed shows otherwise.  He did not say at the time that he was interviewed that he had been a reluctant participant; he had seen the incident as a joke to be laughed about later; he took deliberate steps to disguise his own appearance and, even if he was not the person who printed the obscenity off the police computer to place over the front numberplate of the car, and even though he was not the driver, he did not try to persuade Mr Castle not to do it.  Further, after the event, when he must have known that the speed of the vehicle passing the multanova was a speed significantly in excess of the speed limit, he did nothing to show that he then recognised the action was a serious conflict with his duties as a sworn officer.

31       Mr McGrath submitted that unlike Mr Castle, who had a grievance against an incident which had occurred earlier, Mr McGrath had no reason for doing what he did.  We consider, however, that makes Mr McGrath’s conduct much harder to explain.  Mr McGrath had 16 years’ service, he held a senior constable rank and it is not unreasonable to assume that he would understand what conduct was acceptable or unacceptable in a police officer.  The fact that he then without any reason participated in a reckless act unacceptable in a police officer, did nothing about it for approximately two years, and only admitted his participation after someone else disclosed it, does call into question his judgment and suitability to be a police officer.  We consider that in doing what he did, Mr McGrath’s unexplained actions must affect the confidence reposed in him by the Commissioner of Police as the Commissioner has stated.  In that event, a disciplinary charge is not likely to be appropriate.

32       We accept that Mr McGrath is now regretful and apologises for his actions.  That is, of course, all too late:  the appeal is against the decision of the Commissioner of Police on 15 April 2004 that Mr McGrath be removed from the Police Service.  It is the task of Mr McGrath to show that the decision made by Commissioner of Police, at the time the Commissioner made it, was harsh, oppressive or unfair.  The task of the WAIRC is to consider the circumstances of the decision as it was at the time the decision was made, subject to any new evidence which may be admitted. 

33       In his submissions, Mr McGrath insisted that his conduct was a single act of stupidity and did not justify dismissal.  We have given consideration to this submission.  In an ordinary employment relationship, a single act of misconduct will not ordinarily warrant a summary dismissal; a single act of carelessness or negligence can provide grounds for summary dismissal only if it, or the circumstances surrounding it, show that there has been a deliberate flouting of the essential contractual conditions.  The question whether that has occurred is a question of fact and degree.  However conduct destructive of the mutual trust between the employer and employee can justify dismissal.  Applying that to the facts of this case, we consider that for a senior constable of 16 years’ service who is on duty to prevent and detect traffic offences to deliberately and with planning participate in committing the very offence he is on duty to prevent is a clear example of a deliberate flouting of the essential contractual conditions between him and the Commissioner of Police.  It is conduct destructive of the mutual trust between them.

34       The incident cannot be passed off as a “practical joke” as Mr McGrath submits in the second ground of appeal.  There is no suggestion that anyone other than Mr Castle and Mr McGrath considered the incident a joke.  Certainly, the multanova operator did not consider it a joke because, on Mr McGrath’s evidence in the interview, the multanova operator called up the traffic office to report the incident and requested, we think ironically, whether there were any police vehicles in the area.   

35       The Commissioner of Police has exercised the power given to him under s.8 of the Police Act 1892 to remove Mr McGrath because he had lost confidence in him.  To put the matter another way, the Commissioner of Police lost confidence in a police officer of Senior Constable rank with 16 years’ experience, who was held in reasonable regard within the community as well as the Police Service (based upon the references given on his behalf), for the very reason that notwithstanding that rank, seniority and standing Mr McGrath had failed to appreciate at the time he did it the grave seriousness of his conduct.  Had he shown the judgment expected of a police officer of that rank, seniority and standing, Mr McGrath would not have participated in the event even as a passive or reluctant participant. 

36       Mr McGrath also appeals on the basis that his dismissal was because of adverse publicity generated by the Commissioner of Police or his authorised representatives in circumstances where the same conduct would not have resulted in his removal if the publicity had not been received.  With this in mind, we have re-examined the reasons given by the Commissioner of Police for his decision to remove Mr McGrath. 

37       We note that the Commissioner of Police refers to the publicity generated some six weeks after the incident by Superintendent Watson in the local newspaper with the multanova photograph being published.  We pause to note that the action of Superintendent Watson and the resulting publicity is a measure of how serious the incident was in fact.  It reinforces, in our view, that the failure on the part of Mr McGrath to appreciate that seriousness prior to his participation in the event, is telling against him.

38       We do not see any other part of the reasons of the Commissioner of Police as being based upon any resulting publicity from the public exposure that the persons in the photograph were in fact on-duty police officers. 

39       The newspaper extract of 13 January 2004 corresponds in time to the completion of the internal investigation.  The article states that the constables would be required to show cause why they should not be dismissed.  Commander Balchin stated that the investigation had cast serious doubts on their suitability to remain in the Police Service.  We consider those comments to be factually correct on the chronology given to us.  We do not see the comment within the article that the constables are “likely to be sacked” as capable of generating an expectation that could have influenced the eventual decision of the Commissioner of Police.  This latter comment appears to be merely speculation on the part of the journalist given the then current state of affairs, rather than any official statement made by any person involved in the decision making process.

40       The newspaper report of 22 April 2004 notes that “the two officers will almost certainly be sacked from their jobs”.  We note that this article was two days before the Commissioner of Police wrote to the Minister for Police.  We see this article in similar vein to the earlier article referred to: they are both comments relating to the progress of the move to have them removed following the completion of the internal investigation. 

41       The final issue raised by Mr McGrath concerns the statement that only one police officer in the Notre Dame incident was dismissed while other officers involved in the incident were not dismissed.  Mr McGrath invited us to compare what is understood about the actions of the other police officers with his own actions to support a proposition that his removal was harsh by comparison. 

42       As we observed during the hearing, the WAIRC has no detail before us of the Notre Dame incident.  This makes Mr McGrath’s attempt to draw a comparison somewhat difficult.  Where comparative unfair treatment is alleged, as Mr McGrath does in relation to the Notre Dame incident (and wished to do in relation to a number of other incidents which occurred well before he responded to the s.8 Notice but to which he did not refer in his response) it is not appropriate to assume that punishment which appears more lenient on one occasion is the standard by which punishment in a different circumstance on a later occasion should be measured.  To put it another way, the punishment that may have been given on the earlier occasion may have been due to particular circumstances not revealed or have been simply too lenient.  It cannot be safely used for comparative purposes unless all the facts are the same. 

43       Ultimately, the fairness or otherwise of the removal of Mr McGrath will depend upon Mr McGrath’s circumstances in the context of the incident which occurred rather than what may, or may not have in a different incident (or which may have occurred on an earlier, and on considerably earlier, press reports of previous events). 

44       We consider that the integrity, honesty and conduct of members of the police force was called into question by Mr McGrath’s action in company with Mr Castle.  The consequences for Mr McGrath have indeed been dire: he has lost his job with its attendant income and standing in the community; this has materially affected him in his personal life as well as directly financially.  We find however that the need to maintain public confidence in the conduct and standard of performance of members of the Police Force and the special nature of the relationship between the Commissioner of Police and members of the Force are factors which must outweigh those consequences.

45       We therefore conclude that Mr McGrath has not been able to show that his removal was harsh, oppressive or unfair and accordingly the appeal is dismissed.