2014 WAIRC 00302
APPEAL AGAINST A DECISION OF THE COMMISSIONER OF POLICE TO TAKE REMOVAL ACTION
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00302

CORAM
: CHIEF COMMISSIONER A R BEECH
COMMISSIONER S J KENNER
COMMISSIONER S M MAYMAN

HEARD
:
THURSDAY, 5 DECEMBER 2013, TUESDAY, 28 JANUARY 2014

DELIVERED : MONDAY, 14 APRIL 2014

FILE NO. : APPL 27 OF 2013

BETWEEN
:
MARK ANTONINO POLIZZI
Appellant

AND

COMMISSIONER OF POLICE
Respondent

CatchWords : Removal of Police Officer – Loss of confidence by Commissioner of Police – Appeal against removal – Whether removal harsh, oppressive or unfair – On and off-duty behaviour – Unprofessional conduct towards members of public – Proper storage of ammunition – Unauthorised access to WA Police computer system – Appeal dismissed
Legislation : Police Act (WA) 1892 s 8, s 33K, s 33P(1), s 33Q(4), s 33R(1)-(3), (5)-(8) & (11), s 33L(1)-(5), s 33N(1), s 33W
Industrial Relations Commission Regulations 2005 r 20(1), r 91(a)(ii) & (iv)
Result : Appeal dismissed
REPRESENTATION:
1

APPELLANT : MS K VERNON, OF COUNSEL AND WITH HER, MR D JONES, OF COUNSEL
RESPONDENT : MS R SIDDIQUE, OF COUNSEL

Case(s) referred to in reasons:
AM v Commissioner of Police [2009] WAIRC 01285; (2009) 90 WAIG 276
Applicant v Respondent [2013] FWC 7421
Carlyon v The Commissioner of Police [2004] WAIRC 11428; (2004) 84 WAIG 1395
and [2004] WAIRC 11966; (2005) 85 WAIG 708
Concut v Worrell (2000) 75 ALJR 312; 103 IR 160
CSA v DG Dept for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845
Fire Brigade Employees Union of New South Wales v Fire and Rescue [2013] NSWIRC 57
Jones v The Commissioner of Police [2006] WAIRC 05858; (2006) 87 WAIG 1099
McGrath v Commissioner of Police [2005] WAIRC 00843; (2005) 85 WAIG 2005
Minister for Police & Anor v Smith (1993) 73 WAIG 2311
R v Miller; ex parte Parker (Unreported, WASC, Lib No 980249B, 8 May 1998)
Wells v the Commissioner of Police (2000) 100 IR 106

CONTENTS

PRELIMINARY MATTERS 5
Conciliation 5
Mr Polizzi – Application to Tender New Evidence - Withdrawn 5
The Hearing on 5 December 2013 – New Evidence 5
Summary of Submissions of the Commissioner of Police 7
Summary of Submissions of Mr Polizzi 8
Consideration 8
The Hearing on 28 January 2014 – New Evidence in Response – s 33R(5) 9
Summary of Submissions by Mr Polizzi 10
Summary of Submissions by the Commissioner of Police 10
Consideration 10
The Hearing on 28 January 2014 – Further New Evidence – s 33R(2) 10
Summary of Submissions by the Commissioner of Police 11
Summary of Submissions by Mr Polizzi 11
Consideration 11
THE HEARING OF THE APPEAL 12
The Commissioner of Police’s Reasons for Deciding to Take Removal Action 12
Mr Polizzi’s Case why the Decision to Remove was Harsh, Oppressive or Unfair 15
Appeal Ground 10 16
Ground 10. 1 16
– Mr Polizzi’s Request for Extension of Time 16
– Mr McKenna’s Request for Extension of Time 17
Consideration 18
Ground 10.2 18
Grounds 10.3 and 10.4 20
Grounds 10.3 and 10.4 – Further Issues 20
Summary of Submissions of Mr Polizzi 21
Summary of Submissions of the Commissioner of Police 22
Consideration 23
The First Sub-ground in Grounds 1, 3, 4, 5, 6 and 7 25
The Second Sub- ground in Grounds 1, 3, 4, 5, 6 and 7 26
Ground 1.3 26
Ground 1.4 28
Appeal Ground 2 28
Summary of Submissions by Mr Polizzi 28
Summary of Submissions by the Commissioner of Police 29
Consideration 29
Appeal Ground 3 30
Appeal Ground 4 30
Appeal Ground 5 30
Appeal Ground 6 31
Summary of Submissions for Mr Polizzi 31
Summary of Submissions for the Commissioner of Police 31
Consideration 32
Appeal Ground 7 32
Appeal Ground 8 33
Appeal Ground 9 34
Summary of Submissions by Mr Polizzi 34
Summary of Submissions by Commissioner of Police 35
Consideration 35
The Remaining Sub-grounds 35
CONCLUSION 36
Reasons for Decision

1 This is our unanimous decision. The Commissioner of Police removed Senior Constable Polizzi as a Police Officer on 4 April 2013. Mr Polizzi appeals that decision to the Commission under s 33P of the Police Act 1892 (the Act) on the basis that it is harsh, oppressive or unfair.
PRELIMINARY MATTERS
Conciliation
2 On 29 April 2013 the Commission requested Mr Polizzi and the Commissioner of Police to advise whether they wished to endeavour to resolve the appeal by conciliation. Mr Polizzi’s legal advisors replied that the appeal will involve medical evidence and Mr Polizzi was in the process of getting a second opinion and asked that the appeal not be listed until such time as medical reports could be supplied to the Commissioner of Police. The Commission subsequently listed the appeal for mention on 23 May 2013, however, at the request of both parties the hearing did not proceed so that they could make an informed decision regarding the possibility of conciliation.
3 On 8 August 2013, the Commissioner of Police advised that he was of the view that conciliation would not be possible and requested that the matter be listed for programming. Mr Polizzi’s counsel, Ms Vernon however, advised that in her view conciliation was appropriate and indeed necessary, and accordingly the appeal was set down for conciliation. A conciliation conference was convened on 2 September 2013, however no agreement was reached and there was no prospect of settlement.
Mr Polizzi – Application to Tender New Evidence - Withdrawn
4 On 19 August 2013, an application was made on behalf of Mr Polizzi for leave to tender two medical reports. On 17 September 2013, the Commissioner of Police advised that he did not oppose the application. However, on 18 September 2013 Ms Vernon advised that the application was withdrawn, and the Commission dismissed it (3 October 2013, [2013] WAIRC 00839).
5 The appeal was then set down to be heard on 5 December 2013 and the parties were directed to exchange submissions and relevant documents.
The Hearing on 5 December 2013 – New Evidence
6 At the commencement of the hearing, Ms Vernon objected to parts of the submissions of the Commissioner of Police being before the Commission, in particular the documents at tabs K, L and M, because, she submitted, they are new evidence as that is defined in s 33R(11) of the Act, being documents which postdate the decision of the Commissioner of Police to remove Mr Polizzi and material that is not in the list of material considered by the Commissioner of Police when making the decision. Ms Vernon stated that she did not have notice that the Commissioner of Police sought to rely on material that was not considered by him.
7 In response, Ms Siddique submitted that the documents at tabs K, L and M were taken into account by the Commissioner of Police in the full decisionmaking process which ends with the Notice of Removal signed by him on 3 April, and served on Mr Polizzi on 4 April 2013. Therefore, ‘new evidence’ does not apply to any material that the Commissioner of Police considered up to the signing of the Notice; until the Commissioner of Police signs the Notice of Removal, he can change his mind and come to another decision. Further, when filing the documents required in r 91 of the Industrial Relations Commission Regulations 2005 (the IR Regulations), the Commissioner of Police believed he was not required to file documents which he believed to be Mr Polizzi’s documents.
8 The Commission heard the submissions of both parties and at the conclusion of the submissions ruled that the decision of the Commissioner of Police to remove Mr Polizzi was made on 22 February 2013. Our reasons for doing so are as follows.
9 Section 33R(11) defines new evidence, relevantly, as follows:
(11) In this section —
new evidence means evidence other than evidence of —
(a) any document or other material that was examined and taken into account by the Commissioner of Police in making a decision to take removal action…
10 It becomes important therefore to determine the point in time when the Commissioner of Police makes the decision to take removal action because any document or other material that was examined and taken into account by the Commissioner of Police up to and including making the decision to remove is not new evidence; correspondingly, any document or material after that point in time will be new evidence.
11 Section 33L draws a distinction between the Commissioner of Police making a decision to take removal action and the removal action itself. After s 33L(1), which speaks of the Commissioner of Police not having confidence in a member’s suitability which then causes him to give a written notice, and s 33L(2) which requires there to be a period of 21 days after the notice is given or such longer period that is allowed for the officer to respond, s 33L(3), (4) and (5) provide as follows:
(3) After the end of the period referred to in subsection (2), the Commissioner of Police shall —
(a) decide whether or not to take removal action; and
(b) give the member written notice of the decision.

(4) The Commissioner of Police shall not decide to take removal action unless the Commissioner —
(a) has taken into account any written submissions received from the member under subsection (2) during the period referred to in that subsection; and
(b) still does not have confidence in a member’s suitability to continue as a member, having regard to the member’s integrity, honesty, competence, performance or conduct.

(5) If the Commissioner of Police decides to take removal action —
(a) the notice under subsection (3)(b) shall advise the member of the reasons for the decision;
(b) except to the extent that the regulations otherwise provide, the Commissioner shall, within 7 days of giving the notice of the decision under subsection (3)(b), provide to the member a copy of any documents and make available to the member for inspection any other materials that were examined and taken into account by the Commissioner in making the decision; and
(c) the removal action may be taken when, or at any time after, the notice under subsection (3)(b) is given.
12 ‘Removal action’ relevantly is defined in s 33K as follows:
(a) a recommendation by the Commissioner of Police that the Minister advise the Governor to remove a commissioned officer under section 8.
13 In this case, the Commissioner of Police made the decision to take removal action on 22 February 2013 when he gave written notice of the decision to Mr Polizzi and advised him of the reasons he had done so and provided a list of copies of any documents. After doing so, the Commissioner of Police then took the removal action.
14 It follows that we are of the view that the documents at tabs K, L and M which post-date 22 February 2013 cannot be documents the Commissioner of Police took into account in making the decision to take removal action. Rather, they were documents which the Commissioner of Police considered during the almost five weeks between him making the decision to take removal action and signing the Notice of Removal on 3 April 2013.
15 The legislative distinction between the Commissioner of Police making a decision to take removal action and the removal action itself means that the documents at tabs K, L and M must be considered to be new evidence as that is defined in s 33R(11)(a) of the Act.
16 Further, we do not accept Ms Siddique’s submission that r 91(1)(a)(ii) of the IR Regulations should be interpreted so that the words ‘all documents, as defined in r 20(1), that the Commissioner of Police considered before making the decision’ can be read down to mean only documents that the Commissioner of Police considers relevant to the appeal grounds. We note that r 91(1)(a)(iv) refers to the Commissioner of Police replying to matters ‘in relation to the appellant’s case’, but these words do not appear in r 91(1)(a)(ii) and we therefore consider the words ‘all documents, as defined in r 20(1), that the Commissioner of Police considered before making the decision’ in r 91(1)(a)(ii) mean literally all documents that the Commissioner of Police considered.
17 Consequent upon the Commission giving this ruling at the conclusion of the submissions, Ms Siddique made an application that the documents at tabs K, L and M be admitted as new evidence. Ms Vernon, on instructions from Mr Polizzi, then consented to documents K and M being admitted as new evidence. The Commission admitted those documents by consent pursuant to s 33R(2)(a) of the Act.
18 Ms Vernon did not, however, consent to the document at tab L, which is an email from Gerard Erasmus, the Executive Manager of the Psychology Unit attached to Health and Welfare Services (HWS), to the Commissioner of Police’s staff officer sent on 27 March 2013, being admitted as new evidence. Accordingly, the Commission adjourned the hearing in order to receive the written submissions of the parties whether pursuant to s 33R(2)(b) it is in the interests of justice for the Commission to admit the document.
19 On 23 December 2013 the Commission informed the parties that it did admit the documents. Our reasons for doing so are as follows.
Summary of Submissions of the Commissioner of Police
20 Ms Siddique submitted that the words ‘in the interests of justice’ should be given their ordinary interpretation of ensuring a fair and balanced proceeding, and also be read within their context, that is whether the evidence is directed to the appeal, or relates to an appeal ground or grounds.
21 Appeal ground 10 relates to whether or not the Commissioner of Police had proper regard to Mr Polizzi’s mental health issues. The Commissioner of Police will in due course submit that he considered all the material and medical reports that were put before him relating to Mr Polizzi’s alleged mental health issues before deciding to take removal action on 22 February 2013. Correspondence from Dr Fitch dated 20 March and 25 March 2013 was not received by the Commissioner of Police until after the removal decision was made, however, until the removal action of 4 April 2013 the Commissioner of Police could have taken into consideration additional material and could have come to a different decision and revoked the removal action: s 33N(1) of the Act.
22 Dr Fitch’s correspondence and preliminary report dated 25 March 2013 at tab K, which has now been tendered as new evidence and accepted by consent, relates directly to paragraph 13.17 of Mr Polizzi’s outline of submissions. The Commissioner of Police’s written response to Dr Fitch at tab M, which has also now been admitted by consent as new evidence, makes it clear in the final sentence that the Commissioner of Police did indeed consider Dr Fitch’s correspondence but that this did not alter the Commissioner of Police’s decision to take removal action. The document at tab L was in response to a request by the Commissioner for Mr Erasmus to review Dr Fitch’s report in order to assist the Commissioner in deciding whether he should reconsider his decision to take removal action against Mr Polizzi or delay the removal action.
23 Further, the Commissioner of Police’s letter at tab M must be read in conjunction with the document at tab L and the only logical assumption that can be drawn is that the Commissioner has considered Dr Fitch’s 25 March 2013 report along with the document at tab L when reaching his final decision not to revoke the removal action or delay the removal process. It is necessary for the Commission to consider all of the material at tabs K, L and M particularly when considering appeal ground 10 and it would not be in the interests of justice to only consider the material at tabs K and M and exclude tab L.
Summary of Submissions of Mr Polizzi
24 In reply, Ms Vernon submitted that the Commissioner of Police’s application invites the Commission to go behind the document at tab L and make certain assumptions, however it is not for the Commission to make assumptions favourable to a party’s case. In any event, the Commissioner of Police’s submissions are not themselves evidence of the alleged facts underlying the assumptions referred to in them. The document at tab L must stand on its own in that regard.
25 Ms Vernon submits that the right of appeal in s 33P(1) of the Act is restricted to the decision of the Commissioner of Police to take removal action in accordance with s 33L. Therefore, if the document at tab L postdates the decision to take removal action, it is not relevant to the decision to take removal action and it cannot be relevant to the appellant’s grounds of appeal. There is no authority supporting the Commissioner of Police’s contention that the document at tab L should be admitted as new evidence at this time during the hearing of the appeal.
Consideration
26 The relevant power in 33R of the Act to admit new evidence tendered by the Commissioner of Police is as follows:
(1) New evidence shall not be tendered to the WAIRC during a hearing of an appeal instituted under this Part unless the Commission grants leave under subsection (2) or (3).
(2) The WAIRC may grant the Commissioner of Police leave to tender new evidence if —
(a) the appellant consents; or
(b) it is satisfied that it is in the interests of justice to do so.
27 We consider that the words ‘during a hearing of an appeal’ in s 33R(1) are sufficiently wide to mean that an application to tender new evidence is able to be made at any stage of an appeal once it is filed, including during the hearing of the appeal.
28 We recognise that the document at tab L is a document which postdates the decision to take removal action, however s 33R does not limit the material which may be admitted as new evidence to documents which predate the decision to remove. Evidence of the subsequent conviction, and the appeal against that conviction, of an officer subsequent to his removal from the WA Police is admissible as new evidence under s 33R (AM v Commissioner of Police [2009] WAIRC 01285 at [78]; (2009) 90 WAIG 276 at 277. See too McGrath v Commissioner of Police [2005] WAIRC 00843 at [11] and [16]; (2005) 85 WAIG 2005 at 2006, Jones v The Commissioner of Police [2006] WAIRC 05858 at [3]; (2006) 87 WAIG 1099 at 1099 and Carlyon v The Commissioner of Police [2004] WAIRC 11428 at [23]; (2004) 84 WAIG 1395).
29 The task of the Commission is to decide according to equity, good conscience and the substantial merits of the case whether the removal of Mr Polizzi was harsh, oppressive or unfair. In that context, the phrase ‘interests of justice’ must be given a wide meaning in the context of determining what new evidence should be considered (and see also Carlyon v The Commissioner of Police (op. cit. at [19]).
30 In the circumstances of this matter, we consider that Dr Fitch’s report at tab K having been admitted, the document at tab L, which provides a critique of Dr Fitch’s report, should be able to be considered by the Commission when it in turn considers what weight to give to the document at tab K in its consideration of the substantive matter.
31 Further, appeal ground 10 raises the issue of medical evidence supporting Mr Polizzi’s alleged medical condition known as Asperger Syndrome (AS) and in particular ground 10.4 alleges that the Commissioner of Police failed to properly consider whether any health and welfare issues contributed to Mr Polizzi’s behaviour. The Commissioner of Police’s response to this (28 October 2013 at 3) states that Mr Polizzi had raised ‘an alleged medical condition’ for the first time after he had been informed the Commissioner of Police was considering removing him, but had failed to provide sufficient medical evidence to support this. We consider that the document at tab L may go to the credibility of Mr Polizzi’s position that he has AS and be relevant to appeal ground 10.
32 We therefore conclude that it is in the interests of justice to admit the document at tab L as new evidence.
33 The appeal was then re-listed to be heard on 28 January 2014.
The Hearing on 28 January 2014 – New Evidence in Response – s 33R(5)
34 On 22 January 2014, two working days prior to the resumption of the hearing, Ms Vernon forwarded to the Commission a document to be tendered pursuant to s 33R(5) of the Act as new evidence in response to the admitting of the document at tab L. The document is an assessment of Mr Polizzi by Ms Kate Smith, a clinical psychologist, dated 16 May 2013.
35 Section  33R(5) is as follows:
(5) If the Commissioner of Police is given leave to tender new evidence under subsection (2), the WAIRC shall give the appellant a reasonable opportunity to consider the new evidence and the appellant may tender new evidence without the leave of the WAIRC under this section in response to the new evidence tendered by the Commissioner.
On 22 January 2014 the Commissioner of Police foreshadowed an objection to the tender and therefore the Commission was obliged to give both parties an opportunity to be heard at the commencement of the re-listed hearing on 28 January 2014.
Summary of Submissions by Mr Polizzi
36 Ms Vernon noted that the document at tab L, the email from Mr Erasmus to the Commissioner of Police’s staff officer sent on 27 March 2013, concerns the issue of whether Mr Polizzi has AS but states that neither he nor Dr Piirto had considered this. Ms Smith’s assessment responds substantively to this issue and therefore is evidence not in reply to Mr Erasmus’s email, but in response to it.
Summary of Submissions by the Commissioner of Police
37 Ms Siddique stated that Mr Polizzi seeking to tender new evidence at a late stage was a recurring pattern. Ms Smith’s assessment did not form part of the documents at tabs K, L and M which had been considered by the Commissioner of Police after the decision to remove, but prior to the removal action. The assessment had been one of the two medical reports in Mr Polizzi’s much earlier application on 19 August 2013 to tender new evidence, but which had been withdrawn. Ms Smith’s assessment has no relation to Mr Erasmus’s email and was not ‘in response to’ the new evidence which has been tendered by the Commissioner of Police.
Consideration
38 We noted earlier that appeal ground 10 raises the issue of medical evidence supporting Mr Polizzi’s alleged medical condition, and in particular ground 10.4 alleges that the Commissioner of Police failed to properly consider whether any health and welfare issues contributed to Mr Polizzi’s behaviour.
39 We have not had the benefit of detailed submissions about, and due consideration of, the new evidence which has been tendered by the Commissioner of Police, however we observe that it deals with the issue of whether Mr Polizzi can be said to have AS. In turn, that issue may go to the credibility of Mr Polizzi’s position that he has AS and the Commissioner of Police failed to properly consider whether any health and welfare issues contributed to Mr Polizzi’s behaviour. Ms Smith’s assessment of 16 May 2013 can be seen as responding to that issue. We therefore accept that it can be tendered without leave pursuant to s 33R(5) and it was numbered exhibit A1.
The Hearing on 28 January 2014 – Further New Evidence – s 33R(2)
40 When the Commission announced that Ms Smith’s assessment of 16 May 2013 could be tendered without leave pursuant to s 33R(5), Ms Siddique then applied to tender as new evidence a response to Ms Smith’s assessment by Mr Erasmus dated 12 August 2013. This was objected to by Ms Vernon and therefore the Commission was obliged to give both parties an opportunity to be heard on that application.
Summary of Submissions by the Commissioner of Police
41 Ms Siddique submitted that given that the Commission has now decided that Ms Smith’s assessment is in response and therefore can be admitted, and will be considered by the Commission, notwithstanding the fact that the report postdated the removal decision and indeed the later removal action, in the interests of fairness and in accordance with s 33R(8)(b), or alternatively s 33R(2), the Commissioner of Police should be allowed to tender Mr Erasmus’ report which is in response to Ms Smith's report.
Summary of Submissions by Mr Polizzi
42 Ms Vernon stated that to give consideration now to a further application to tender new evidence will be to have an endless argument: if the Commission grants leave to the Commissioner of Police yet again under 33R(2) for him to tender the responsive report by Mr Erasmus, it in turn will trigger the operation of 33R(5) which will allow Mr Polizzi to put in something in response to the new evidence. It cannot be in the interests of justice that an appeal goes on an endless cycle of leave to admit new evidence.
43 Ms Vernon made the point that also it is not in the interests of justice that there be another response by Mr Erasmus to the effect that Mr Polizzi’s behaviour can be explained as something other than AS: there is already before the Commission an email of 27 March 2013 from him to that effect in response to Dr Fitch’s diagnosis, and this new evidence specifically takes to task an assessment made by Ms Smith for the purposes of assessing Mr Polizzi for the Disability Services Commission requirements.
Consideration
44 We observe firstly that this particular application to tender new evidence, coming as it does after new evidence has been tendered without leave pursuant to s 33R(5), cannot be considered under s 33R(8)(b) of the Act. Section 33R(8) is part of a sequence which operates if an appellant is given leave to tender new evidence under s 33R(3): the Commissioner of Police is to be given a reasonable opportunity to consider that new evidence (s 33R(6)), he may revoke the removal action (s 33R(7)), or he may reformulate his reasons for not having confidence in the appellant’s suitability to remain a member of WA Police or may tender new evidence without leave (s 33R(8)). With Ms Smith’s assessment of 16 May 2013 having been tendered as new evidence without leave pursuant to s 33R(5), s 33R(8) can have no application.
45 However, the power given to the Commission in s 33R(2) to grant the Commissioner of Police leave to tender new evidence is not confined or restricted; neither for that matter is the power given to the Commission in s 33R(3) of the Act to grant an appellant leave to tender new evidence confined or restricted: either may make such an application at any point during a hearing of an appeal (s 33R(1)). We recognise that the rather regimented procedure s 33R obliges us to follow might mean a succession of adjournments when an application to tender new evidence is made and leave is granted. That is undesirable, and time consuming, and whether leave would be granted will depend upon the circumstances when an application is made.
46 Therefore, this particular application to tender new evidence, coming as it does after new evidence has been tendered without leave pursuant to s 33R(5), is to be considered under s 33R(2) of the Act: in the absence of consent, the Commission is to be satisfied that it is in the interests of justice to grant leave.
47 In the circumstances of this matter, we consider that Ms Smith’s assessment of 16 May 2013 having been tendered, a response to Ms Smith’s assessment by Mr Erasmus should be able to be considered by the Commission when it in turn considers what weight to give to Ms Smith’s assessment in its consideration of the substantive matter. We therefore conclude that it is in the interests of justice to admit the response to Ms Smith’s assessment by Mr Erasmus dated 12 August 2013 as new evidence. It was numbered exhibit R1.
48 Mr Erasmus’s response having been admitted as new evidence under s 33R(2), the Commission then asked whether pursuant to s 33R(5) Mr Polizzi wished to be given a reasonable opportunity to consider it and to tender new evidence without leave in response to it. Ms Vernon advised that he did not wish to do so.
49 All issues of new evidence having been dealt with, and there being no further preliminary matters, the hearing on 28 January 2014 resumed to hear Mr Polizzi’s appeal.
THE HEARING OF THE APPEAL
50 The Act sets out the procedure the Commission is to follow:
33Q. Proceedings on appeal
(1) On the hearing of an appeal instituted under this Part, the WAIRC shall proceed as follows —
(a) first, it shall consider the Commissioner of Police’s reasons for deciding to take removal action;
(b) secondly, it shall consider the case presented by the appellant as to why that decision was harsh, oppressive or unfair;
(c) thirdly, it shall consider the case presented by the Commissioner in answer to the appellant’s case.
(2) The appellant has at all times the burden of establishing that the decision to take removal action was harsh, oppressive or unfair.
(3) Subsection (2) has effect despite any law or practice to the contrary.
(4) Without limiting the matters to which the WAIRC is otherwise required or permitted to have regard in determining the appeal, it shall have regard to —
(a) the interests of the appellant; and
(b) the public interest which 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.
The Commissioner of Police’s Reasons for Deciding to Take Removal Action
51 The Commissioner of Police’s response (COP Response) of 28 October 2013 gives a summary of what he understood to have been Mr Polizzi’s conduct. It commences on Friday 30 March 2012 when Mr Polizzi attended the Telstra shop in the Morley Galleria shopping complex where he spoke with a female staff member and negotiated a contract of sale for a 32 gigabyte iPhone. In completing the application for the contract he made staff aware he was a police officer by using his identification to verify his credentials.
52 On Saturday 31 March 2012, Mr Polizzi returned to the store and proceeded directly to the same female staff member who was serving another customer. He was visibly upset and shouting. He was told to wait and he would be served in due course. He was upset, questioning the terms of the contract. He argued the point, believing he had been tricked by staff at the time of sale and wanted a new phone. He continued arguing his point and demanded the manager of the store speak to him regarding his contract, stating he ‘no longer wished to speak to a woman’. He continued in an irrational manner and was ordered to leave the store by an employee.
53 On Monday 2 April 2012, the assistant manager of the store, who is female, spoke with the initial female staff member and as a result she phoned Mr Polizzi to discuss the issues he raised the previous day in an attempt to resolve the matter. During the conversation he was aggressive and rude. The assistant manager ended the call.
54 About ten minutes later Mr Polizzi again contacted the store and spoke with the assistant manager. During the call he forcefully advocated his case in an agitated and irrational manner. During the conversation he became abusive towards her, referring to her as a ‘bitch’ and made note of the fact that he was sick of dealing with a female.
55 On the morning of Tuesday 3 April 2012, the assistant manager made a complaint to WA Police via the WA Police internet site regarding his conduct. On the afternoon of Tuesday 3 April 2012, Mr Polizzi entered the Telstra shop to return the iPhone after issues he had raised about the terms of the purchase. He returned the iPhone to an employee who informed him his contract with Telstra was cancelled. In resolution of Mr Polizzi's complaint, he was advised arrangements had been made with another store to supply him with a new contract and iPhone.
56 The iPhone was placed in the rear office which is out of bounds to customers and secured with a coded door lock. In an attempt to retrieve the handset Mr Polizzi walked past the counter and made an attempt to open the office door by randomly punching codes on the key pad without success. He was told by staff that he was not permitted to access the office area but remained in the vicinity arguing his case.
57 The rear staff office door was opened by a staff member exiting. At this time Mr Polizzi approached the open door and attempted to enter the room. A staff member was standing in the doorway to prevent his entry and ordered him away. Mr Polizzi pushed her in attempt to move her out of his way to facilitate entry into the office. A brief ‘stand off’ occurred where he displayed his police identification, asserting his right to enter the office as a police officer.
58 He managed to push past her into the office area where he approached the assistant manager and demanded the return of his phone. A concerned male employee assisted and after a short verbal confrontation with Mr Polizzi ushered him out of the office. Police were called to the incident.
59 Later that same day, Tuesday 3 April 2012 at 9.20 pm, detectives from Internal Affairs Unit (IAU), with the assistance of Mirrabooka Detectives, attended Mr Polizzi's home in Mt Lawley to conduct inquiries in relation to the Telstra shop incident, including the execution of a search warrant. Mr Polizzi was arrested by IAU investigators, given his rights under the Criminal Investigations Act (CIA) and advised of the items sought. Mr Polizzi advised he would enter his house and locate the items and that no search warrant was required. He became agitated and would not listen to the instruction of attending senior officers, insisting he would enter his house and retrieve the items sought.
60 Contrary to instructions not to enter the house, Mr Polizzi turned, entered the house and walked to his bedroom. He was followed by detectives. Inside his house Mr Polizzi retrieved his identification, however he continued to behave in an erratic manner, demanding that the search cease as the warrant was effectively redundant due to him retrieving the sought items. He continued to robustly verbalise his disdain towards attending police, essentially obstructing officers in the course of their lawful duty. Mr Polizzi was subsequently handcuffed to prevent potential loss of evidence, injury to attending police, escape from custody and to prevent him harming himself, given his demeanour.
61 Officers executing the search warrant located a drug smoking utensil in the lounge. Police subsequently conducted a search of the house under Misuse of Drugs Act 1981 provisions and Mr Polizzi was removed due to his continued erratic behaviour. A number of items were located, including over 1,381 rounds of unsecured ammunition, synthetic cannabis and a used drug smoking utensil.
62 Later that evening Mr Polizzi was interviewed at IAU, where he declined a criminal interview, however he participated in a managerial interview. In the conduct of the investigation, a number of witnesses were interviewed by investigators. As a consequence of the investigation conducted by IAU, Mr Polizzi underwent a loss of confidence review. Following examination of the relevant materials and consideration of the summaries of investigation and supporting documents by the Commissioner of Police, on 6 December 2012 the Commissioner of Police issued a Notice of Intention to Remove (NOITR) to Mr Polizzi as he had lost confidence in Mr Polizzi’s suitability to remain a member of the WA Police.
63 The issues put to Mr Polizzi in the NOITR are as follows:
1. On 3 April 2012 at the Telstra shop in Morley you:
· identified yourself as a police officer and behaved in an abusive, threatening and unprofessional manner;
· unlawfully assaulted a female Telstra employee;
· trespassed upon the Telstra shop staff office; and
· used your position as a police officer for personal gain.

2. On 3 April 2012 at Mount Lawley you:
· failed to ensure proper storage of ammunition;
· were in possession of synthetic cannabis, albeit not a prohibited substance at the time;
· were in possession of a smoking implement used for smoking synthetic cannabis;

3. In 1995 whilst at the WA Police Academy your training records indicate a number of issues that are reflective of poor behaviour and inappropriate conduct;

4. In 1996 a number of comments were recorded in your Probationary Reports indicating that the conduct and behaviour identified during your Police Academy training had continued;

5. In 2006 and 2007 whilst attached to Infringement Management and Operations you had four sustained matters directly relating to unprofessional conduct. All of the matters related to rude and aggressive behaviour towards members of the public;

6. On 3 December 2011 whilst off duty you were involved in an incident with a female whom you shared a house with. The subsequent investigation resulted in all of your firearms being seized and you being charged with 1 x Common Assault and 1 x Failing to ensure safe keeping of your firearms. These matters are currently being dealt with by the court;

7. You attended Health and Welfare on a number of occasions, since the 3 December 2011 incident;
· During a visit on 4 January 2012 you became angry and abusive towards Acting Assistant Director Wayne Bryan;
· On 27 January 2012 and 22 March 2012 you abused staff and acted in an unprofessional and irrational manner;

8. In February 2012 an audit of your computer accesses revealed a number of unauthorised accesses relating to your own personal details and IR's that you were directly linked to. You were the subject of a Managerial Notice and received verbal guidance in relation to these matters; and

9. Evidence given by you under oath at your trial on 12 November 2012 in the Perth Magistrates Court was not consistent with and contradicted evidence you gave during your managerial interview under disciplinary demand on 4 April 2012 with internal investigators.

64 On 22 February 2013 the Commissioner of Police wrote to Mr Polizzi saying that after considering his response and having regard to all of the information before him, there is sufficient evidence to sustain the issues put to him in the NOITR.
65 The Commissioner of Police concluded that Mr Polizzi’s conduct was in clear contravention of the WA Police Code of Conduct with respect to his honesty, conduct and ethics, and that it significantly undermines the integrity, credibility and reputation of WA Police.
66 The Commissioner of Police said that he had regard to the context of Mr Polizzi’s response including his personal circumstances and previous service history. However, given the nature of the information concerning Mr Polizzi’s conduct, together with the unconvincing response he had provided to these allegations, his personal circumstances and service history had not ameliorated his concerns about Mr Polizzi’s suitability to remain a member of the WA Police.
67 The Notice of Removal is dated 3 April 2013. It states that the Minister approved Mr Polizzi’s removal on 27 March 2013. Mr Polizzi was removed from the WA Police on 4 April 2013 when the Notice of Removal was served on him (Vol 1 tab N).
Mr Polizzi’s Case why the Decision to Remove was Harsh, Oppressive or Unfair
68 For each of the nine issues set out above which the Commissioner of Police put to Mr Polizzi in the NOITR, there are nine corresponding grounds of appeal. Grounds 1, 3, 4, 5, 6 and 7 contain a common sub-ground that, in general terms, Mr Polizzi’s conduct in each issue was not a basis for the Commissioner of Police to have lost confidence in his suitability to continue as a member of the WA Police having regard to his honesty, integrity and conduct because such conduct:
1. Occurred whilst he was suffering from stress, fatigue and an undiagnosed medical condition known as AS, a characteristic of which is impaired social interaction;
2. Is unlikely to reoccur since Mr Polizzi has now been diagnosed with and treated for AS.
69 In addition, there is a tenth ground of appeal in which Mr Polizzi says he was denied a fair go all around by the Commissioner of Police because:
10.1. The Commissioner of Police unreasonably refused requests by Mr Polizzi (and his representatives) to extend the date for his response to the NOITR until after Mr Polizzi had undergone a comprehensive medical examination by his treating specialist;
10.2. The Commissioner of Police's opinion that Mr Polizzi does not suffer from AS is contrary to medical evidence obtained by Mr Polizzi after the Commissioner of Police's letter to him dated 15 January 2013 pursuant to s 33L(3) of the Act;
10.3. The Commissioner of Police disregarded medical evidence supporting Mr Polizzi's medical condition known as AS; and
10.4. The Commissioner of Police therefore failed to properly consider whether any health and welfare issues, namely Mr Polizzi's undiagnosed and mistreated medical condition known as AS, contributed to his behaviour as required by WA Police Service Managerial Intervention Model HR-31 and specifically HR-31.1.5.
70 Together, the common sub-grounds and ground 10 go to the central issue in his appeal. It is convenient to commence the consideration of that issue with ground 10.
Appeal Ground 10
Ground 10. 1
– Mr Polizzi’s Request for Extension of Time
71 Mr Polizzi’s response to the NOITR was due on 8 January 2013. On 24 December 2012 Mr Polizzi requested ‘an extension to the allocated 3 week response’ (Vol 1 tab F) stating that:
· Two months earlier he had contacted the Employee Assistance Program but had been told there was nothing which could be done to help him.
· He then had seen a clinical psychologist (Ms Herbert) on 1, 8 and 22 December 2012;
· He was served with the NOITR on 18 December 2012 and given the time of year, Ms Herbert will be unavailable from 23 December to 7 January 2013.
72 His request concluded with:
I have scheduled appointments as per attached business card. To show my commitment to fixing my problem I wanted to propose that my accrued annual leave be used to cover me whilst I seek treatment. I also enquired if I could utilize any accrued long service leave, however that is not possible. However annual leave for next year could be used to cover the gap until my long service leave is due.
I realise this is an unorthodox request, however having perused my file for the very first time I am left feeling absolutely ashamed, disgraced and disgusted. I acknowledge that there is a serious behaviour issue here and I need to get it addressed and will do whatever is required. My Commissioner should not have to have someone working for him with this continuing problem, hence why I am seeking your help and patience as I know that I can be the officer you expect to have.
73 The Commissioner of Police replied the same day noting that Mr Polizzi had sought an extension of a further three weeks, his desire to engage with his psychologist prior to providing a response, and that Mr Polizzi had appointments scheduled for 8 and 12 January 2013. The Commissioner of Police allowed an extension of one week to 14 January 2013 (Vol 1 tab F). Mr Polizzi duly submitted his response to the NOITR on 14 January 2013 (Vol 1 tab G).
– Mr McKenna’s Request for Extension of Time
74 On 15 January 2013 Mr McKenna, the principal solicitor for the WA Police Union, wrote to the Commissioner of Police (Vol 1 Analysis of Response tab 15) attaching Mr Polizzi’s response to the NOITR saying it is evidence Mr Polizzi is suffering from ‘some kind of psychiatric disorder’ which Mr Polizzi says has been misdiagnosed. Mr McKenna wrote that Mr Polizzi says he believes his symptoms are most likely attributable to AS and Mr McKenna has instructed Mr Polizzi to:
‘1. obtain a report from his psychologist to confirm this;
2. obtain a report from either his psychologist or his general practitioner, at this stage, to explain whether the medication he was prescribed, when he was misdiagnosed, would have been a contributing factor to his behaviour;
3. how his present psychological problems affect his behaviour;
4. how his present psychological problems can be addressed; and
5. whether or not his current psychological condition can be treated to the extent that he will be able to conduct his duties as a police officer to the satisfaction of yourself without the possibility of bringing the agency into disrepute.’
75 Mr McKenna’s letter concluded:
In the circumstances I think it is only fair that you allow Mr Polizzi an extension so that he can obtain these reports so that you can make an informed decision as to whether or not you can, or cannot, retain confidence in Mr Polizzi. Please find attached a synopsis of AS which certainly accords with the behaviour displayed by Mr Polizzi on these occasions.
76 Any reply to Mr McKenna’s request for an extension for Mr Polizzi to obtain reports from his psychologist apparently is not before the Commission; an email from the staff officer to the Commissioner of Police dated 17 January 2013 (Vol 1 tab 16) indicates it was declined.
77 In written submissions dated 22 November 2013 (paragraphs 11.7, 11.8), Ms Vernon criticised Ms Siddique’s submission that Mr Polizzi did not provide sufficient medical evidence confirming a diagnosis of AS or that he was suffering from it on 3 April 2012, saying that this was because the Commissioner of Police refused to grant him an opportunity to do so when:
· The one week extension granted by the Commissioner of Police was two days after Mr Polizzi’s last scheduled appointment with Ms Herbert;
· Mr McKenna had requested an extension of time, and even Mr Erasmus had believed Mr Polizzi should have a two week extension to allow Ms Herbert to finalise a report, however it was not granted.
78 The submission is that Mr Polizzi therefore was not afforded a proper opportunity to address matters relevant to the determination of the reasons for the removal before they were acted upon to remove him from office.
Consideration
79 The Commissioner of Police’s reply incorrectly said that Mr Polizzi had sought an extension of a further three weeks when in fact Mr Polizzi had not specified the length of the extension he sought. Mr Polizzi had sought an extension of time until after he had undergone a comprehensive medical examination by his treating specialist. The Commissioner of Police’s extension of one week was based upon the dates of Mr Polizzi’s medical appointments.
80 In Mr Polizzi’s request, his treating specialist was Ms Herbert, a psychologist, and Mr McKenna’s request was to enable Mr Polizzi to obtain reports from his psychologist. Ms Herbert’s report was sent to the Commissioner of Police on 17 January 2013 (Vol 1 Analysis of Response tab 3) which was two days after Mr McKenna had written his request to the Commissioner of Police. The reason for requesting an extension of time given by both Mr Polizzi and Mr McKenna, that is to obtain a report from Ms Herbert, therefore had been satisfied. Ms Herbert’s report is complete and did not itself request an extension of time. Therefore the Commissioner of Police’s extension of one week was one day short of the time Mr Polizzi needed. It is a relatively short time, and there was no disadvantage to Mr Polizzi in that one day. Declining Mr McKenna’s request for an extension was not unreasonable because Ms Herbert’s report to which his request related arrived two days after he had made his request. Ground 10.1 is not made out.
Ground 10.2
81 Ground 10.2, properly understood (see t 37), is that the Commissioner of Police's opinion that Mr Polizzi does not suffer from AS is contrary to Ms Herbert’s report. The background to this subground is that Mr Polizzi responded to the NOITR by addressing each of the issues and he stated his belief that his behaviour was attributable to prescribed medication and, at the conclusion of his response, Mr Polizzi set out matters relating to his personal life and, in an addendum, matters relating to the medicines he had been prescribed and the medical practitioners he had attended.
82 It is sufficient for these reasons merely to note that these included his understanding that he had symptoms attributable to AS from the age of seven. He considers that he has ‘attributable symptoms to AS’ and he is following a therapy path to determine and manage it. Under the heading ‘Treatment’ he said he was obtaining treatment for low frustration tolerance and that a formal diagnosis takes time and personal resources. He has had to endure two incorrect diagnoses which included incorrect medication that were a contributing factor to a short change in his character and personality.
83 He said in conclusion that he has been made aware that he should be able to excel with appropriate therapy and support, and having now discovered his symptoms he can treat the problem in the best interests of everyone. He has permanently ceased any type of medication, he is feeling the difference, he has noticed a definite change in himself and a desire to keep going.
84 The Commissioner of Police in his reply on 22 February 2013 stated that he did not accept AS as well as misdiagnosis and prescribed medication as an explanation for Mr Polizzi’s conduct. On page 4 of his reasons for removing Mr Polizzi (Vol 1 tab J), the Commissioner of Police rejected any claim of informal diagnosis at the age of seven because the first time the term AS was publically referred to and used was in a 1981 academic paper; that before a proper diagnosis could be made of him he changed psychiatrists; that Ms Herbert only raises the possibility of an AS diagnosis ‘probably suggested to her by you’; and that the most Ms Herbert can say is that the use of both prescription and nonprescription medication led to psychological issues that can account for Mr Polizzi’s ‘emotional dysregulation, low frustration tolerance and challenging interpersonal behaviours’.
85 Ms Herbert had written whether Mr Polizzi has a psychiatric/psychological condition, saying that there is ‘a possible Asperger’s diagnosis’. This was said in the context of ‘an untreated trauma history, a possible Asperger's diagnosis and use of both prescription and nonprescription drugs’ which together led to psychological issues which may account for his conduct.
86 Turning to ground 10.2, that the Commissioner of Police's opinion that Mr Polizzi does not suffer from AS is contrary to Ms Herbert’s report, Ms Herbert wrote in relation to whether Mr Polizzi has traits consistent with an Asperger’s diagnosis only that ‘it would be sensible therefore for this to be formally assessed by a psychiatrist as it would certainly explain at least some of Mr Polizzi's direct relational style which has perhaps caused him problems in the workplace’.
87 In our view, Ms Herbert’s report falls short of stating that Mr Polizzi suffers from AS. (We record that Ms Herbert, quite properly, acknowledges that she is not a psychiatrist and has seen Mr Polizzi for treatment purposes only; she indicates that in providing treatment it is essential to formulate a working hypothesis of some kind of assessment).
88 However the Commissioner of Police’s rejection of Mr Polizzi’s behaviour as attributable to AS necessarily rejects Ms Herbert’s view that it is possible Mr Polizzi had AS and that it would be sensible for this to be formally assessed by a psychiatrist.
89 The Commissioner of Police’s reasons for reaching this view included the following sentence:
It should be noted that when you saw Dr Piirto (Health and Welfare psychiatrist) she was certainly not of the view that you were suffering from the disorder.
90 In submissions, Ms Vernon made the point that in the materials relied on by the Commissioner of Police and provided to Mr Polizzi, and to this Commission, there is no reference to a report by Dr Piirto, or reports or assessments or letters by Dr Piirto (t 5, 6).
91 Ms Siddique confirmed that the Commissioner of Police was not provided with, and did not feel he needed to read, Dr Piirto’s reports but rather was satisfied after taking into account all that Mr Erasmus had said and reported, including Dr Piirto’s view and her diagnosis as communicated by her to Mr Erasmus (t 40).
92 The Commissioner of Police’s statement that ‘Dr Piirto was certainly not of the view that Mr Polizzi was suffering from AS’ is not supported by the evidence. Mr Erasmus, who is a clinical psychologist, had said in an email to Inspector Schorer on 17 January 2013 (Vol 1 Analysis of Response tab 16) that Dr Piirto was certainly not of the view that he was suffering from AS and this, it seems, was incorporated into the Commissioner of Police’s reasons for deciding to remove Mr Polizzi. It was an error to do so.
93 Ms Vernon correctly points out that in the recording of the interview of Mr Erasmus (Vol 3 tab 42), Mr Erasmus is asked if there has been a diagnosis of Mr Polizzi by Dr Piirto, and Mr Erasmus’ answer is that Dr Piirto has not assessed him and made a diagnosis. Therefore, the Commissioner of Police was incorrect to say that Dr Piirto was certainly not of the view that Mr Polizzi was suffering from AS.
94 Ground 10.2 is made out to the extent that the view of the Commissioner of Police that Mr Polizzi’s unprofessional and volatile behaviour is not attributable to AS depended upon his misunderstanding of Dr Piirto’s position and that he disregarded Ms Herbert’s view that it is possible Mr Polizzi has AS and that it would be sensible for this to be formally assessed by a psychiatrist.
Grounds 10.3 and 10.4
95 Grounds 10.3 and 10.4 together raise the issue from a different direction. Ms Vernon submitted (t 142) that as Ms Herbert indicated support for a possible diagnosis of AS as a possible explanation, either complete or in part, for Mr Polizzi’s conduct, it deserved more than the paragraph it received in the Commissioner of Police’s reasons; without more, it is not possible to know how the Commissioner of Police came to his view, which leads to the conclusion that Mr Polizzi was denied a fair go all round.
96 Ms Siddique submitted that in relation to all matters concerning the medical conditions and the alleged medical conditions raised by Mr Polizzi, the Commissioner of Police received all of his advice and guidance from Mr Erasmus.
97 In the email to Inspector Schorer on 17 January 2013 mentioned above (Vol 1 Analysis of Response tab 16), Mr Erasmus had said that Mr Polizzi had called him on 1 December 2012; Mr Polizzi was anticipating the NOITR and mentioned to Mr Erasmus he was diagnosed with AS as a 16 year old, that he had never disclosed this for fear of humiliation and thus it was left untreated. In Mr Erasmus’ view, this raised a few important issues. One of the issues was Mr Erasmus’ understanding of Dr Piirto’s position set out above, and which has been dealt with.
98 The other issues Mr Erasmus raised were that he assumed Mr Polizzi did not declare this during the recruitment process; and most importantly, AS was only included in the Diagnostic and Statistical Manual of Mental Disorders 4th edition (DSM-IV) in 1994, therefore Mr Polizzi could not have been formally diagnosed with AS as a 16 year old. In another email on the same day (Vol 1 Analysis of Response tab 14) Mr Erasmus said that the term AS would not have been publicly known, let alone used as a diagnosis, in 1975 when Mr Polizzi was seven years old when he was reportedly ‘informally diagnosed’ with it.
99 These comments by Mr Erasmus are used by the Commissioner of Police in his reasons for reaching the view that Mr Polizzi’s unprofessional and volatile behaviour is not attributable to AS. In my view, Ms Vernon’s submission that it is not possible to know how the Commissioner of Police came to his view is not accepted; it is evident that he came to his view accepting Mr Erasmus’ information.
Grounds 10.3 and 10.4 – Further Issues
100 The balance of grounds 10.3 and 10.4 are that the Commissioner of Police disregarded medical evidence supporting Mr Polizzi's medical condition and therefore he failed to properly consider whether any health and welfare issues, namely Mr Polizzi's undiagnosed and mistreated AS, contributed to his behaviour as required by WA Police Service Managerial Intervention Model HR-31 and specifically HR-31.1.5. This refers to two reports admitted as new evidence, being the documents created after 22 February 2013 when the Commissioner of Police had made the decision to take removal action but before Mr Polizzi was removed.
101 The first report is a letter from Dr Fitch, a consultant psychiatrist, on 20 March 2013 to the Commissioner of Police saying she had been requested to provide a psychiatric medico-legal report regarding Mr Polizzi (Vol 1 tab K). She wrote that she is preparing a very comprehensive psychiatric report, however if it is to be provided by 26 March 2013, it will not contain the biological and neuropsychological testing, and she requested an extension of time of 42 days ‘for SC Polizzi to show reason as to why the loss of confidence motion should be withdrawn’. There is no record of a response to this letter.
102 On 25 March 2013 Dr Fitch sent a fax to the Commissioner of Police saying that as she did not hear from him, and that her comprehensive report is only 90% completed, she has prepared an executive summary which she attached. For the purpose of grounds 10.3 and 10.4, it is sufficient to note Dr Fitch’s conclusion that Mr Polizzi has clear evidence of AS. Her concluding comment on page 5 is that:
With appropriate treatment as outlined in Question Five, SC Polizzi is capable of being a competent police officer who can make a strongly positive contribution to the Police service in his limited field of task engagement.
103 The Commissioner of Police sought advice from Mr Erasmus (Vol 1 tab L) and replied to Dr Fitch on 27 March 2013 (Vol 1 tab M). The reply informed Dr Fitch that nothing in her correspondence caused him to alter his view that he has lost confidence in Mr Polizzi or to delay action in this regard.
104 The second report is dated 16 May 2013 from Ms Smith, a clinical psychologist to whom Mr Polizzi had been referred by Dr Fitch because of concerns that Mr Polizzi ‘probably had AS’ (exhibit A1). Ms Smith’s opinion, in her summary at p 10, is that Mr Polizzi meets the criteria for a diagnosis of Asperger's Disorder; however he also has a history of hyperactivity which is a common co-occurring trait; he has had some social difficulties from time to time that he has got through, with recent events causing a major issue, possibly largely because of misunderstanding. She set out a number of recommendations.
105 The Commissioner of Police sought, and on 12 August 2013 received, a response to Ms Smith’s report from Mr Erasmus (exhibit R1).
Summary of Submissions of Mr Polizzi
106 Ms Vernon’s submission is that the WA Police Service Managerial Intervention Model HR-31 requires the Commissioner of Police to consider whether any health and welfare issues have contributed to Mr Polizzi's behaviour, and he cannot do so unless he takes steps to ensure that the officer himself is actually assessed by somebody in the HWS or assessed externally.
107 The essence of Ms Vernon’s submission is that in the absence of an independent report the Commissioner of Police could not have properly considered whether any health and welfare issues contributed to Mr Polizzi’s behaviour. In the absence of a psychiatric report confirming Mr Polizzi’s diagnosis (or lack thereof) the Commissioner of Police was required to consider the evidence that was available as supportive of Mr Polizzi suffering from mental health issues, either stress, ‘psychological overwhelm’ or AS or otherwise ([13.16] of submissions ). If the Commissioner of Police did receive information which he considered might have explained Mr Polizzi’s conduct it may mean that he may have to be reconsidered for whether he could continue to be a member, but it might not be, for the purposes of s 8 of the Act, a loss of confidence in his suitability to continue as a member having regard to his honesty, integrity or conduct.
108 Ms Vernon submitted that the decisions in Wells v The Commissioner of Police (2000) 100 IR 106 and the Fire Brigade Employees Union of New South Wales v Fire and Rescue [2013] NSWIRC 57 articulate a process where there is a question of someone’s mental health there is a requirement to give active consideration not only to whether there is such an issue but what part, if any, it played in the impugned conduct. Ms Vernon also referred to Applicant v Respondent [2013] FWC 7421 in which the Fair Work Commission held at [36] that it would appear to be indefensible to dismiss an employee who has a mental disorder for conduct which occurred when the employee was unaware that he had a mental disorder and for which he had not yet received any treatment.
Summary of Submissions of the Commissioner of Police
109 Ms Siddique says that it is extremely significant that the first time Mr Polizzi raised AS is when he was faced with the likelihood of losing his job. When he joined the Police Force in 1995, he did not declare any medical condition. He showed alarming behaviour in 1995 and 1996, and ten years later he again showed worrying, rude and aggressive behaviour; a pattern formed including rude and aggressive behaviour, it would seem, directed towards women. Mr Polizzi denied anything was wrong with him and he was encouraged to attend for therapy. He did not cooperate and eventually, as a result of an incident in December 2011 which involved violence as well as a firearms offence, he was directed to go for a fitness for duty assessment. He did so but again denying that anything was wrong with him and not accepting the conclusions of Mr Erasmus.
110 Mr Polizzi’s lack of cooperation, and even his resentment, towards health and welfare is demonstrated in the incidents in January and March 2012 involving Acting Assistant Director Bryan and his staff. Ms Siddique submits that this shows an officer not only in denial of any issues that have been highlighted to him by Mr Erasmus but one who is holding the health and welfare unit that is there to assist him in contempt. Ms Siddique points out that notwithstanding his behaviour at HWS in January 2012, where he was rude and abusive to staff and where he had stormed out of the Health and Welfare office because he did not agree with their psychologist’s findings and assessment of him, WA Police agreed to refer Mr Polizzi to an external psychologist and continued to pay for his treatment.
111 After only one consultation with the external psychologist in May 2012 Mr Polizzi discontinued treatment with her. At t 152, Ms Siddique points out that he was referred to two psychiatrists by HWS who came back with diagnoses that he did not agree with and so he ‘sacked them, essentially’. The second psychiatrist was Professor Skerritt. Mr Polizzi refers to his visits to Professor Skerritt in his response to the NOITR saying that when he suggested to Professor Skerritt that he had perhaps AS, Professor Skerritt had responded that ‘he had not considered that’ but ‘believed now we may be on the right track’. Mr Polizzi said ‘at this point I advised him that it was best that I seek treatment elsewhere’ (Vol 1 tab G, response of Mr Polizzi under the title ‘Addendum’ p 20). The Summary of Investigation (SOI) notes that Professor Skerritt’s report does not support these claims made by Mr Polizzi. Neither did Mr Polizzi make mention of this in his managerial interview.
112 Ms Siddique submits that the incidents of unauthorised computer access, the significance of his evidence before the Magistrate when charged with the firearm offence in 2012 and his previous evidence to the Internal Affairs officers, calls into question his honesty and integrity. Together with Mr Polizzi’s complete denial, reluctance and unwillingness to accept that there could be anything behind that behaviour, when Mr Polizzi raised for the first time that he can explain his conduct now because he has AS, it was more than fair and reasonable for the Commissioner of Police to question his motives of raising the issue of AS, particularly given that some time was clearly taken by Mr Polizzi because he asked for extensions of time to find a psychiatrist and a psychologist that would come back with a diagnosis that he was claiming he suffered from.
113 Ms Siddique submitted that at this stage, there was a question whether the Commissioner of Police owed Mr Polizzi any further obligation in terms of health and welfare. He had already discharged his obligations under HR-31. When the Commissioner of Police received Ms Herbert’s report he asked Mr Erasmus, who is also a clinical psychologist, to look at it and to offer his opinion based upon the benefit that Mr Erasmus had of seeing and assessing Mr Polizzi on more than one occasion. The Commissioner of Police took into account all relevant information before him up to the point where he made his final decision to remove Mr Polizzi. Mr Erasmus’ opinion was that Mr Polizzi was suffering from antisocial interpersonal personality traits largely caused by a childhood traumatic event which Mr Polizzi had canvassed with Mr Erasmus back in 2011.
114 Similarly, when the Commissioner of Police received Ms Smith’s report at the end of May, a month and a half after Mr Polizzi had been removed, the Commissioner of Police took advice on that report by asking Mr Erasmus to prepare his own report in response. This is indicative and reflective of the fact that the Commissioner of Police had in mind at all times the health and welfare concerns and the medical conditions that were raised and claimed. The Commissioner of Police remained of the view that AS was not the justification for Mr Polizzi’s behaviour so he did not revoke the removal, but he did go through the exercise of getting advice and guidance through Mr Erasmus.
115 Ms Siddique further submitted that Mr Polizzi posed an unmanageable and unacceptable risk given that there is no cure for AS. It requires close therapy, counselling, treatment and medication. Given everything that Mr Polizzi had exhibited up until this time, his lack of professionalism, his lack of honesty and forthrightness, his questionable integrity, there will always be a risk that the symptoms would raise their head again. The symptom of antisocial behaviour was a constantly recurring pattern. If the Commissioner had decided to accept Mr Polizzi’s claim that he was suffering from AS, an element or symptom of which is, according to Dr Fitch, a social disability, this would suggest that Mr Polizzi has a reduced ability to engage acceptably in social interactions with others, which would not be conducive to being a police officer.
Consideration
116 There is no doubt that the Commissioner of Police is obliged to consider health and welfare issues with respect to managerial intervention. HR-31 commences ‘When considering the most appropriate form of managerial intervention to address demonstrated and/or identified unprofessional conduct, the following are to be key considerations’. There are ten considerations; the fifth consideration at HR-31.1.5 is:
If applicable, whether any Health and Welfare issues contributed in any way to the demonstrated and identified unprofessional conduct.
117 We consider that this obligation applies to the Commissioner of Police when he is deciding whether or not to take removal action under s 8 of the Act. This conclusion is consistent with the two decisions referred to by Ms Vernon. In Wells v The Commissioner of Police the unfairness of Senior Constable Wells’ dismissal was determined largely on the medical opinion of his medical condition at the time he assaulted a person attending the police station, and that he was now fit for duty.
118 In Fire Brigade Employees Union of New South Wales v NSW Fire and Rescue [2013] NSWIRC 57 the employee concerned was not a police officer, however the evidence that the Fire Brigade Commissioner did not consider the employee’s mental health to be relevant to any consideration as to what action should be taken with respect to the employee was held to be an error. In that matter, the weight of the medical evidence was that the employee’s mental condition contributed to his conduct in pushing a fellow employee in the back which caused the employee to hit a cupboard, doing damage to his face and teeth. His mental illness was not diagnosed prior to the incident.
119 The IRCNSW held:
There can be no doubt that in considering whether a dismissal from employment was harsh, mental illness may be required to be taken into account as a mitigating factor. No absolute rule can be laid down about this; it will depend on such matters as the nature of the illness, whether the illness is likely to cause a recurrence of the conduct, whether the individual has recovered from the illness and the nature of the conduct itself that led to the decision to dismiss.
120 It is apparent that the Commissioner of Police did consider whether any health and welfare issues contributed to Mr Polizzi’s conduct because he refers to Mr Polizzi raising the issue of AS as well as a misdiagnosis and prescribed medication, even though he concluded from the available evidence that Mr Polizzi’s unprofessional and volatile behaviour are not attributable to them.
121 No absolute rule can be laid down about what an employer, in this case the Commissioner of Police, must do to take into account health and welfare issues. The scope of the Commissioner of Police’s obligation to take into account whether health and welfare issues contributed to demonstrated and unprofessional conduct in considering whether he has lost confidence in a member will depend upon the circumstances of each case.
122 The evidence at the time the Commissioner of Police decided to take removal action did not include Dr Fitch’s report and Ms Smith’s assessment. Both reports support Mr Polizzi having AS which casts doubt about the conclusion of the Commissioner of Police on 22 February 2013 in his reasons for taking removal action that Mr Polizzi’s unprofessional and volatile behaviour is not attributable to AS, misdiagnosis and prescribed medication.
123 However in relation to Dr Fitch’s report of 25 March 2013, which was available to the Commissioner of Police before Mr Polizzi was removed, Mr Erasmus concludes (Vol 1 tab L p 3) that: ‘There are too many inconsistencies in [Mr Polizzi’s] behaviour over time to suggest that an unmanaged AS has debilitated him to the extent that [Dr Fitch] claims’. The Commissioner of Police had to that point chosen to accept Mr Erasmus’ views, and Dr Fitch’s report did not cause him to halt the removal action. It is apparent from the Commissioner of Police’s response to Dr Fitch that whether or not Dr Fitch was of the view that Mr Polizzi had AS was not the deciding factor.
124 In relation to Ms Smith’s assessment of 16 May 2013, which was available to the Commissioner of Police after Mr Polizzi was removed, Mr Erasmus concludes (exhibit R1 p 6) that: ‘…there will be considerable overlap between features of a neurodevelopmental disorder and personality style and traits…’.
125 While Dr Fitch’s report and Ms Smith’s assessment add weight to Mr Polizzi’s claim that he has attributable symptoms of AS, and thus provide some weight to his explanation of his conduct, Mr Erasmus’ comments provide a balance to Dr Fitch’s report and Ms Smith’s assessment. His comments provide a basis for the Commissioner of Police concluding that Mr Polizzi’s unprofessional and volatile behaviour is not attributable to AS as well as a misdiagnosis and prescribed medication.
126 The Commissioner of Police was aware of Mr Erasmus’ personal knowledge of Mr Polizzi, which included the fitness for duty assessment which indicated concern for Mr Polizzi’s mental health. The material before the Commissioner of Police included that Mr Polizzi had been assessed by psychologists and referred to an external psychologist, and that after only one consultation with the external psychologist in May 2012 Mr Polizzi discontinued treatment with her. He had been referred to two psychiatrists by HWS. In the case of the second psychiatrist Mr Polizzi himself decided not to continue even though when he suggested to the psychiatrist that he perhaps had AS, the psychiatrist had responded that he had not considered that but believed now ‘we may be on the right track’ (response of Mr Polizzi under the title ‘Addendum’ page 20). Further, when Mr Polizzi was directed to attend HWS he had shown a marked reluctance to admit he had a medical problem at all.
127 The Commissioner of Police therefore had a reasonable basis for preferring Mr Erasmus’ conclusions. Dr Fitch’s report and Ms Smith’s assessment, together with Mr Erasmus’ responses in each case, do not establish that the Commissioner of Police’s conclusion must be incorrect.
128 Grounds 10.3 and 10.4 are not made out.
The First Sub-ground in Grounds 1, 3, 4, 5, 6 and 7
129 The first subground in grounds 1, 3, 4, 5, 6 and 7, that Mr Polizzi’s conduct in each issue was not a basis for the Commissioner of Police to have lost confidence in his suitability to continue as a member of the WA Police because such conduct occurred whilst he was suffering from stress, fatigue and an undiagnosed medical condition known as AS, a characteristic of which is impaired social interaction, falls for consideration.
130 These sub-grounds proceed on the basis that Mr Polizzi’s inappropriate, abusive, threatening and completely unprofessional conduct is to be excused on the basis of either his stress, fatigue or AS. The evidence for this includes the attachment to Mr McKenna’s letter, however this describes symptoms only in a general way. Dr Fitch’s report (Vol 1 tab K at 3 and 4) describes how Mr Polizzi’s disorder and its management has contributed to the loss of confidence process and says that the loss of confidence process has proceeded because Mr Polizzi’s communications remain affected by his disorder so that he is being considered recalcitrant however his disability has not been considered in the process. Dr Smith’s report (exhibit A1 at 10) is also general, noting that Mr Polizzi has had some social difficulties from time to time that he has got through, with recent events causing a major issue possibly largely because of a misunderstanding.
131 However, Mr Erasmus (Vol 1 tab L and exhibit R1) provides a detailed response, particularly to Dr Fitch, which concludes with his opinion that Mr Polizzi’s difficulties are related to personality features. We do not overlook Ms Vernon’s submission that Mr Erasmus is not a psychiatrist, and that less weight should be given to his response than to Dr Fitch. However, in our opinion, Mr Erasmus’ comments whether Mr Polizzi’s disorder led to the loss of confidence process (being five dot points) and his concluding paragraph are to the point and must carry due weight. At the least, it is not clear that Dr Fitch’s report must be given full weight and Mr Erasmus’ response is to be given no weight.
132 It is not shown that Mr Polizzi having AS as described by Dr Fitch in her report means that Mr Polizzi’s conduct in the issues in grounds 1, 3, 4, 5, 6 and 7 was not a basis for the Commissioner of Police to lose confidence in him because such conduct occurred whilst he was suffering from stress, fatigue and an undiagnosed medical condition known as AS.
The Second Sub- ground in Grounds 1, 3, 4, 5, 6 and 7
133 The second subground in grounds 1, 3, 4, 5, 6 and 7, that Mr Polizzi’s conduct is unlikely to reoccur since Mr Polizzi has now been diagnosed with, and treated for, AS, loses most of its force given that it is not shown that his conduct is explainable by his having AS. Mr Polizzi in his response concludes that having now discovered his symptoms he can treat the problem for the best interests of everybody. Dr Fitch (Vol 1 tab K at 5) says that a comprehensive management plan should be able to address many of the Commissioner of Police’s concerns. Dr Fitch comments that Mr Polizzi has shown a capacity to voluntarily modify his behaviour.
134 However this must be balanced with the material which shows that Mr Polizzi had shown a marked reluctance to voluntarily modify his behaviour. There is nothing persuasive in the evidence to show that Mr Polizzi has been treated and the type of conduct which led to his nomination for loss of confidence would not occur again.
135 The first and second subground in grounds 1, 3, 4, 5, 6 and 7 are not made out.
Ground 1.3
136 Ground 1.3 is that Mr Polizzi’s conduct at the Telstra shop was not a basis for the Commissioner of Police to lose confidence in him because it:
1.3. involved no dishonesty, lack of integrity or impropriety in that he:
1.3.1. was not charged with either unlawful assault or trespass, being the offences alleged;
1.3.2. despite identifying himself as a police officer, did not use his position as a police officer for personal gain.
137 We note that in response to the issue of his conduct at the Telstra shop, Mr Polizzi had replied stating his understanding of his conduct on that day. He included the background to the incident and then his attendance at the shop on 3 April 2012. He said:
I must accept responsibility that my behaviour was abusive, threatening and completely unprofessional. I believe now that my behaviour was attributable to the prescribed medication I had taken which I will clarify at the conclusion of all my issues (Vol 1 tab G).
He also stated:
During my managerial interview, it was put to me that I had assaulted someone, committed burglary and trespassed. I was quite surprised and shocked to be informed of this.
He says that he ‘fully acknowledge[s]’ that his actions at the time were completely inappropriate.
138 The Commissioner of Police’s reasons for removing Mr Polizzi as they relate to this issue, took into account Mr Polizzi’s response, stating:
I note in your response that you accept that your behaviour was ‘abusive, threatening and completely unprofessional’. However you fail to accept responsibility for this behaviour but rather seek to mitigate it and blame it on a misdiagnosis, incorrect prescribed medication and a claim that you have [AS]. I do not accept this explanation for your conduct (Vol 1 tab J at 2).
139 Ms Vernon’s submission is that this does not identify what it is in relation to the incident that leads the Commissioner of Police to the conclusion that Mr Polizzi is unsuitable to remain as a member of the WA Police because not all circumstances of unprofessional behaviour result in the Commissioner of Police losing confidence in a member’s suitability to remain in their office.
140 The submission is correct looking at the Commissioner of Police’s reasons for removing Mr Polizzi in isolation. However the NOITR, to which the reasons refer, itself refers to the SOI which sets out the details alleged. Other than when Mr Polizzi referred to his surprise and shock at being informed that he had assaulted someone, committed burglary and trespassed, he did not deny any of the allegations. Nor did he indicate in his response to the NOITR that he did not understand what it was in each particular issue that led the Commissioner of Police to conclude that Mr Polizzi was unsuitable to remain as a member of the WA Police.
141 The Commission has before it the contents of the SOI and its attachments in volumes 2 and 3; the Addendum Summary of Investigation (ASOI) with its two attachments; the memorandum from the Assistant Commissioner, Professional Standards to the Commissioner of Police; the Analysis of Response with 16 attachments; and the memorandum from Acting Assistant Commissioner, Professional Standards, to the Commissioner of Police, all of which are materials taken into account by the Commissioner of Police in reaching his decision and which have been considered by us. We have watched the CCTV footage of the incident in the Telstra shop. Mr Polizzi’s response to the Commissioner of Police and the transcript and audio of his managerial interview have been taken into consideration.
142 The material we have considered includes the witness statements of employees in the Telstra shop. The female Assistant Manager in the Telstra shop had spoken to Mr Polizzi on the telephone on 2 April 2012 after he had made a complaint on 31 March 2012 about his service. His conduct during that telephone conversation prompted her to make an online complaint to the Police (Vol 2 tab 11) saying he had he made a number of discriminating comments in relation to people who have stretched ears, had been very threatening in his manner and had sworn at her telling her to ‘get off her high horse’ and ‘stop being a bitch’. In relation to his later visit to the store she said that:
When Mark entered the office and approached me I was convinced he was going to hit me, I was extremely scared and I could not stop shaking, I am really concerned about what he may do (Vol 2 tab 12, para 28).
143 Another female employee who had been present attended the Centro Medical Centre the following day, distressed and crying and has been deemed unfit for work because of the incident (Vol 2 tab 15). Another employee thought that the Assistant Manager was going to get hurt and therefore he hit the duress button which summonsed the Galleria security staff (Vol 2 tab 10, para 102).
144 While the Commissioner of Police’s reasons for removing Mr Polizzi do not set out the detail behind the reasons he gives, there is a logical and sound basis in the above for the Commissioner of Police to find that on 3 April 2012 at the Telstra shop in Morley Mr Polizzi behaved in an abusive, threatening and unprofessional manner even though he did not set out the detail.
145 It is not clear, particularly given the CCTV footage, that Mr Polizzi assaulted a female Telstra employee. That is the conclusion reached by the State Solicitor’s Office (Vol 3 tab 45, para 22). The State Solicitor was inclined to conclude that there was contact between Mr Polizzi’s upper arm/shoulder and the female employee’s arm, and Mr Polizzi’s stomach/arm and the female employee’s arm as he brushed past her, even if it does not allow the conclusion that Mr Polizzi pushed the female employee with his hands.
146 It is correct that Mr Polizzi was not charged with assault. It is correct that his conduct did not involve dishonesty. It did involve lack of integrity and impropriety. In relation to conduct going to integrity, the Macquarie Dictionary 3rd Edition defines integrity as including soundness of moral principle and character; in my view Mr Polizzi’s actions in intimidating the female staff is not consistent with sound moral principle or character. The same dictionary defines impropriety as including inappropriateness and unseemliness. In my view, Mr Polizzi’s conduct on 3 December 2011 did involve lack of integrity and impropriety on his part, even if that conduct was not sufficient to sustain a criminal charge of assault.
147 Mr Polizzi entered the office at the rear of the Telstra shop when he knew it was a private area and had been told he was not allowed to enter it. Although he was off-duty and pursuing a grievance as a private citizen, he used his police badge. This formed part of the lack of integrity and impropriety on his part even if the conduct itself did not constitute the offence of trespass. It also was using his position as a police officer for personal gain, in this case, the retrieval of what he considered his property. Ground 1.3 is not made out.
Ground 1.4
148 Ground 1.4 is that Mr Polizzi’s conduct was not sufficiently serious to warrant removal having regard to grounds 1.1 to 1.3 above. Grounds 1.1 to 1.3 not being made out, this appeal ground loses much of its force. Mr Polizzi was not removed solely in relation to the conduct at the Telstra shop on 3 April 2012. Rather, his conduct on that occasion formed only one of nine issues. As this subground is common to appeal grounds 1 to 8, it is appropriate to consider it together with those grounds after a consideration of them.
Appeal Ground 2
149 This is that Mr Polizzi's conduct at Mt Lawley on 3 April 2012 was not a basis for the Commissioner of Police to have lost confidence in his suitability to continue as a member because such conduct:
2.1. involved no dishonesty, lack of integrity or impropriety in that Mr Polizzi:
2.1.1. was acquitted of criminal conduct relating to the proper storage of ammunition;
2.1.2. did nothing wrong because synthetic cannabis was not a prohibited substance at that time; and
2.2. occurred when he was off duty in such circumstances that it had no capacity to affect the public confidence in the integrity of the WA Police Service; and/or
2.3. was not sufficiently serious to warrant removal having regard to 2.1 to 2.2 above.
Summary of Submissions by Mr Polizzi
150 Ms Vernon’s submission is that Mr Polizzi in his response to the NOITR did not accept that failure to ensure proper storage of ammunition, possession of synthetic cannabis and a smoking implement as alleged, were a demonstration of unacceptable and unprofessional behaviour. The synthetic cannabis was not at that stage a prohibited substance and Mr Polizzi explained that its use was for pain relief and to assist with sleeping. It is conduct which occurred off-duty and in the privacy of his own home. The Commissioner of Police has not identified how such conduct reflects upon honesty or integrity nor how it could be said to render Mr Polizzi unsuitable to continue as a member. Mr Polizzi accepted it as poor judgment on his part that portrays a poor image to the public, however it does not create a poor image to the public because it occurred in a private setting.
Summary of Submissions by the Commissioner of Police
151 Ms Siddique submitted that the Commissioner of Police's reasons for removal demonstrate that Mr Polizzi was removed, in part, on the basis that he was in breach of the WA Police Code of Conduct, which requires an officer to conduct themselves in their private life in a manner that will not bring discredit onto WA Police or conflict with his or her public duty. The Commissioner was of the view that, by not strictly adhering to the Firearms Act 1973 (WA) requirements for the proper storage of ammunition in his place of residence, by being in possession and conceding in his written response that he used synthetic cannabis, which, as a result of recent amendments to the Misuse of Drugs Act is now considered to be an illicit substance, and by possessing a smoking implement containing traces of that cannabis, Mr Polizzi's conduct was sufficiently serious to render his conduct likely to bring discredit on WA Police.
Consideration
152 The first issue is whether Mr Polizzi knew of the WA Police Code of Conduct (exhibit R2). Mr Polizzi was asked in his managerial interview whether he knew of the Code and he replied that he knew of it but had not familiarised himself with it. The Code makes it clear in its introduction that it applies to all persons employed under the Act. There is no suggestion in this appeal that it did not apply to Mr Polizzi. It is sufficient that he knew of it even if he had not, after 17 years as a police officer, familiarised himself with it.
153 Relevantly, under the heading ‘Your private life’ the Code states:
Your legitimate behaviour while off-duty is not of concern to the WA Police, provided it does not bring discredit to the WA Police.
You need to ensure that your personal life does not compromise you in your public role, nor conflict or appear to conflict with the impartiality that is expected of you as an employee of the WA Police.
154 The second issue is that an employee’s conduct out of hours may be of legitimate concern to his or her employer where there is on the face of it a connection between the conduct and the employment: CSA v DG Dept for Community Development [2002] WASCA 241; (2002) 82 WAIG 2845 per Anderson J at [35].
155 In relation to the proper storage of firearms, it is important to the community that the relevant legislation is adhered to. A police officer’s conduct in not observing the relevant legislation is, in my view, connected with the officer’s role as a law enforcement officer.
156 In relation to the synthetic cannabis, relevantly the SOI paragraph 225 states that substance use is a significant issue and of concern for the community as a whole, particularly for police officers due to the nature of the job, public perception and the potential for corruption. In our view this is a correct statement.
157 In our view, proper storage of firearms and substance use are connected with the nature of the work of a police officer. Whether the conduct is of legitimate concern to the Commissioner of Police will depend upon the circumstances in each case.
158 Ms Vernon submitted that the Commissioner of Police has not identified how Mr Polizzi’s conduct in his own home reflects upon his honesty or integrity, nor how it could be said to render Mr Polizzi unsuitable to continue as a member. It is incumbent on Mr Polizzi to show that his removal was unfair and to show that his conduct off-duty would not reflect upon his honesty or integrity, or lead to a conclusion that he was unsuitable to continue as a member. He has not done so. Appeal ground 2 is not made out.
Appeal Ground 3
159 Ground 3 states that Mr Polizzi’s conduct in 1995 whilst at the Police Academy is not alleged with sufficient particularity to allow him to properly answer the allegation. The weight of this ground of appeal is lessened by Mr Polizzi’s response to the NOITR. He refers to the issues listed in paragraph 145 of the SOI. There are six issues listed. Mr Polizzi does not suggest that they are not alleged with sufficient particularity. In fact he states that he accepts at the time his behaviour was unprofessional at certain times. In relation to one of the dot points he states that he has ‘absolutely no recollection of it’ but does not say it is not alleged with sufficient particularity to allow him to properly answer the allegation.
160 It is next said that his conduct in 1995 involved no dishonesty, lack of integrity or impropriety at the time of his removal in 2013, having occurred some 18 years earlier. In our view, this submission must be correct. Whatever the conduct was, it did not prevent Mr Polizzi being permitted to graduate from the Academy, confirmed as a police officer and embarking on his career. We attach little weight to any conduct in 1995 because of the length of time involved between it occurring and now, other than to the extent it may show a pattern which is relevant to current conduct. In our view, ground 3 is made out other than to the extent conduct in 1995 shows a pattern which is relevant to current conduct.
Appeal Ground 4
161 Ground 4, which refers to comments recorded on Mr Polizzi’s probationary reports in 1996 that his conduct and behaviour identified at the Police Academy had continued, raises similar issues to ground 3, with the additional reference to Mr Polizzi having been on probation at the time and subsequently promoted to Constable after the conduct referred to had occurred. Mr Polizzi did respond to these matters. In some instances, he states he does not remember the event; in other respects, the conclusions are the same as in ground 3. In our view, ground 4 is made out other than to the extent conduct recorded in Mr Polizzi’s probationary reports shows a pattern which is relevant to current conduct.
Appeal Ground 5
162 This ground refers to four matters of sustained unprofessional conduct in 2006 and 2007 relating to rude and aggressive behaviour towards members of the public, and raises similar issues to events which occurred six to seven years ago. These are more recent in time and therefore more relevant to his conduct in 2012. There is no suggestion that they were not sufficiently particularised. Mr Polizzi’s response indicates he does remember the events and he puts forward his views.
163 The conduct referred to is relevant to showing a pattern of behaviour. Of themselves, the four matters might not form a basis for the Commissioner of Police to lose confidence in Mr Polizzi’s suitability to remain a member, however they are not being used for that purpose. Ground 5 is not made out.
Appeal Ground 6
164 Issue number 6 put to Mr Polizzi in the NOITR involved two incidents: one led to him being charged with common assault and one with failing to ensure safe keeping of his firearms. The first part of appeal ground 6 is that Mr Polizzi’s conduct on 3 December 2011 when he was charged with these offences involved no dishonesty, lack of integrity or impropriety on his part as he was acquitted of assault and his conviction in relation to the storage of firearms was a spent conviction. Therefore, they do not provide a basis for the Commissioner of Police to have lost confidence in his suitability to continue as a member.
Summary of Submissions for Mr Polizzi
165 In written submissions, Ms Vernon noted that the Commission in Carlyon v The Commissioner of Police [2004] WAIRC 11428 at 26 accepted that the facts established by a conviction need to be considered to ascertain the way they revealed or reflected upon the character of the officer in terms of fitness to continue as a member (Outline of Submissions, para 44). It is submitted that the Commissioner of Police cannot conclude that he committed the offence of common assault because he was acquitted. The Commissioner of Police did not make any conclusion as to what facts he otherwise considered were established on the evidence, or at least open to be drawn, in relation to the incident which led to the charge of assault, and failed to state in the removal decision how the incident reflected upon the appellant’s character or suitability to continue as a member.
166 The submission continued that reviewing the available evidence, the Commission cannot be satisfied that the Commissioner of Police identified any evidence upon which it could be concluded, or said to have been reasonably open to conclude, that the incident involved dishonesty or lack of integrity, as opposed to poor judgment exercised in light of the stress he was experiencing at the time according to Mr Erasmus. Nor that it had the capacity to affect public confidence in the integrity of the WA Police because it occurred at a private residence between two people over living arrangements at that residence and was not sufficiently serious to warrant removal.
167 Ms Vernon’s submission continues that whilst the Commissioner of Police can rely on conduct that does not amount to criminal assault at law, he has to indicate what it is that he is relying upon by way of the conduct. It might be inferred that the Commissioner of Police could simply refer to the facts of what occurred as related in the SOI however, the allegation is that Mr Polizzi committed the criminal act of assault. It is not said that outside of that, the conduct had some other significance. If the Commissioner of Police had detailed the conduct upon which he now relies that would give Mr Polizzi an opportunity to understand that the underlying conduct is the issue and it is therefore not a question of honesty or integrity necessarily.
Summary of Submissions for the Commissioner of Police
168 Ms Siddique points to s 33W of the Act which provides that if a member has been charged with committing an offence or has been acquitted of an offence, the existence of proceedings relating to the charge or the acquittal does not preclude the Commissioner of Police from taking any action in relation to loss of confidence about any matter, act or omission relating to, or being an element of, the offence. The Commissioner of Police’s reasons for removal demonstrate that Mr Polizzi was removed in part on the basis of his conduct on 3 December 2011 where the Commissioner of Police was satisfied that his conduct was likely to bring discredit onto WA Police. The Commissioner of Police says that Mr Polizzi as much as conceded this in his written response to the NOITR.
Consideration
169 In his response on this issue, Mr Polizzi did not deny the alleged assault on 3 December 2011 of a female he shared a house with, and did not seek to excuse his behaviour. He says that at the time he was injured and was acting in self defence; he states that regardless of who was right or wrong at the time, he should not have placed himself in such a volatile situation. He states that he can remove any corporate risk he poses and can restore the integrity, ethics and respect he tarnished.
170 In relation to the issue of failing to ensure safe keeping of firearms, his response shows that he firmly believed he had not committed an offence as he was in transit.
171 In relation to ground 6.1 it is not disputed that the Commission may have regard to the facts established by the criminal charges even if the charges resulted in acquittal or a spent conviction. The background material in relation to the assault is in the SOI and ASOI and the transcript of interview with Mr Polizzi (Vol 3 tab 51, the statement at Vol 3 tab 38). It was conduct lacking integrity, and was improper, for the same reasons referred to earlier relating to ground 1.3.
172 In relation to his conviction regarding the storage of firearms, the Commissioner of Police’s Outline of Submissions at 2.15 states that after his arrest for common assault on 3 December 2011 it was ascertained that Mr Polizzi was in possession of, and was storing, numerous licensed firearms in the rear of his motor vehicle in direct breach of s 23(9)(d)(ii) of the Firearms Act 1973. The fact that he was convicted of this, even if the conviction was a spent conviction, and notwithstanding his response on this issue to the NOITR, means that his conduct if not dishonest or lacking in integrity, was improper.
173 Subground 6.4 is conditional upon 6.1 being made out; as it is not, 6.4 falls away.
Appeal Ground 7
174 In ground 7 it is said in 7.3 that Mr Polizzi’s conduct on 4 and 27 January 2012 and 22 March 2012 at the HWS is not a basis for the Commissioner of Police to have lost confidence because Mr Polizzi was frustrated at the lack of assistance from HWS from whom he had sought help and it had no capacity to affect the public confidence in the integrity of the WA Police Service.
175 Ms Siddique submitted that the Commissioner of Police considered Mr Polizzi’s conduct towards HWS staff serious and unacceptable and not defendable or excusable on the basis of any alleged frustration he was experiencing at the time. In the Commissioner of Police’s view, this was conceded by Mr Polizzi in his written response to the NOITR (COP Response at 97).
176 In his response to the NOITR Mr Polizzi wrote that he accepted his behaviour was inappropriate and unprofessional with members of HWS between December 2011 and March 2012. He would like to be given the opportunity to apologise in person to those he offended. He says he has taken on board every piece of assessment and comments made by Mr Erasmus and he acknowledges that he does have a problem and that he is addressing it. He writes that he is highly motivated to change and that he is prepared to address the issues identified.
177 The conduct of Mr Polizzi at the HWS is contained in the summaries of interview of Senior Sergeant Bryan, Mr Erasmus and Senior Constable Walker (Vol 3 tabs 41, 42, 43). There is also in those tabs the Health and Welfare running sheet. The submission is that the removal decision does not demonstrate how such conduct rendered Mr Polizzi unsuitable to continue to be a member when the Commissioner of Police does not identify evidence upon which it could be concluded, or was reasonably open to be concluded, that it involved dishonesty or lack of integrity on Mr Polizzi’s part; only poor judgement in light of the stress that he was experiencing at the time according to Mr Erasmus.
178 The submission is valid in the sense that the removal decision does not set out the conduct upon which the allegation relies. Given the material referred to in the SOI, and that Mr Polizzi’s response to the NOITR does not seek clarification of the conduct alleged, the fact that the decision to remove does not itself set out the conduct is not significant. Had Mr Polizzi disputed the conduct alleged then the submission would have greater weight.
179 It is also correct that Mr Polizzi’s conduct did not involve dishonesty or lack of integrity as such. It is, however, a gloss on his conduct to say it was only poor judgement in light of the stress he was experiencing at the time. This is because Mr Polizzi’s conduct at the HWS is part of a pattern of conduct: it is conduct which Mr Erasmus describes in his correspondence to Superintendent Flack on 30 March 2012 (Vol 3 tab 42) as confrontation, acting in what is perceived to be a threatening manner and adopting an adversarial, if not aggressive, stance towards others and being suspicious of their motives. In the context of the pattern established as set out in the SOI, Mr Polizzi’s conduct was not merely poor judgement in the light of the stress he was experiencing at the time.
180 Moreover, it had the capacity to affect public confidence in the integrity of the WA Police because even though the conduct did not occur in the presence of any members of the public, it was conduct towards at least Mr Erasmus who is not a police officer and, in the interview of Acting Sergeant Walker, he says “one of the girls is petrified of him that works at the front counter”. Also, there are two receptionists at the front counter (SOI para 191). It is not appropriate to view Mr Polizzi’s conduct at the HWS in isolation from the context in which it has been presented. Ground 7 is not made out.
Appeal Ground 8
181 This ground is that Mr Polizzi’s unauthorised computer accesses are not a basis for the Commissioner of Police to have lost confidence in his suitability to continue as a member of the WA Police having regard to his honesty, integrity and conduct because:
8.1. he only accessed his own personal details and admitted that;
8.2. the Commissioner of Police dealt with the unauthorised computer accesses by issuing him with a Managerial Notice and verbal guidance at the time in conformity with the usual outcome involving this type of conduct;
8.3. by issuing a Managerial Notice the Commissioner of Police accepted that his conduct was insufficient to warrant his removal pursuant to s 8 of the Police Act 1894 (sic) (WA) (Act); and/or
8.4. such conduct was not sufficiently serious to warrant removal having regard to 8.1 to 8.3 above.
182 In January 2012, a check of Mr Polizzi’s computer accesses revealed a number of unauthorised accesses between 2002 and January 2012 relating to his own personal details and incident reports he was directly linked to (SOI paragraph 174). Mr Polizzi was the subject of managerial intervention. These unauthorised accesses were seen as unprofessional conduct and a lack of integrity by consistent breaches of policies and statute law, which does not accord with community expectations of police officers, and undermines public confidence in the WA Police. The submission in this ground is that the removal decision does not demonstrate how that conduct renders Mr Polizzi unsuitable when there is no evidence identified that such conduct involved dishonesty or lack of integrity at the time of removal, given that the conduct was said to be on 12 January 2012 and when the circumstances were considered a decision was made not to prosecute.
183 Mr Polizzi’s response to this issue in the NOITR is an explanation of why he did what he did. He does not deny accessing the WA Police restricted computer system between January 2002 and January 2012. It is correct that Mr Polizzi only accessed his own personal details and admitted that. It was dealt with by way of a managerial notice and verbal guidance at the time. The Commissioner of Police in the reasons for removal saw the response as simplifying and understating the conduct involved and led the Commissioner of Police to believe that Mr Polizzi did not appear to appreciate the seriousness of his conduct.
184 Viewed in isolation, Mr Polizzi’s unauthorised access relating to his own details and incident reports is insufficient to warrant the loss of confidence and removal. It is a relatively minor transgression in the context of the reasons why the Commissioner of Police lost confidence in him and is not conduct of a similar nature to the conduct which led to the loss of confidence. Its capacity to affect the public confidence in the integrity of the WA Police is marginal in the context of the reasons the Commissioner of Police lost confidence in Mr Polizzi viewed in their entirety.
185 It is however an example of unprofessional conduct which is available to be considered when Mr Polizzi’s conduct overall is considered. Ground 8 is made out.
Appeal Ground 9
186 This ground is that the evidence given by Mr Polizzi at his trial on 12 November 2012 is not a basis for the Commissioner of Police to have lost confidence in his suitability to continue as a member of the WA Police Service having regard to his honesty, integrity and conduct because:
9.1. such evidence was not inconsistent with or contradicted by him during his managerial interview on 4 April 2012 and therefore involved no dishonesty, lack of integrity or impropriety on his part.
9.2. the evidence produced at the trial was not put to him in the managerial interview.
Summary of Submissions by Mr Polizzi
187 The submission in ground 9 (Outline of Submissions at 54) is that the Commissioner of Police did not particularise the inconsistent or contradictory evidence given by Mr Polizzi but did refer to the one instance admitted to by him.
188 Mr Polizzi’s response to the NOITR was that the evidence provided to the court during his trial and the evidence given in his managerial interview was correct, although it differed because the evidence he was presented with in court was different to that which he was asked about during the interview.
189 Mr Polizzi’s claim is that the ammunition that was seized as a consequence of a search warrant was not the ammunition that Mr Polizzi was presented with in court.
190 The submission continues that in the absence of the Commissioner of Police concluding precisely what was the alleged inconsistent or contradictory evidence, there is no basis for a fair minded observer to have rejected this explanation. The Commissioner of Police failed to establish by reference to any facts how Mr Polizzi’s conduct was either dishonest or lacking integrity and how it rendered Mr Polizzi unsuitable to continue in office.
Summary of Submissions by Commissioner of Police
191 Ms Siddique stated the significance of this issue is that Mr Polizzi did not say at any point in his managerial interview that which he later said in the criminal trial. This is a particular reference to Mr Polizzi saying in court that some of the ammunition that was taken from the storage box he had only removed some hours before the police arrived and executed their search warrant. In the managerial interview in April, Mr Polizzi said that the ammunition that was taken out of the storage container had been taken out days before, which is a very different version.
Consideration
192 The managerial interview is in the materials referred to by the Commissioner of Police (Vol 2 tab 26). A reading of that transcript supports Ms Siddique’s submission. In the transcript, Mr Polizzi is referred to the ammunition in the box, and the other ammunition that he talked about, and was asked when he removed it from the gun safe. He replied ‘days ago, two days ago from the main box’. Later, in reference to a big box of ammunition in the room with the gun safe, Mr Polizzi confirmed it was taken out ‘a day or two ago’ and when he was asked about ‘the ammunition in other parts of the house’ they were taken out of the gun safe ‘only a few days ago … the last day or two’.
193 This is evidence not consistent with the evidence given later in court and the ground which states that his evidence involved no dishonesty, lack of integrity or impropriety on his part is not made out.
194 The submission that the evidence produced at the trial was not put to him in the managerial interview is not made out because it presupposes that the evidence at trial is not encompassed within the scope of the answers which Mr Polizzi gave in his managerial interview. His replies had referred in particular to the big box of ammunition in the room with the gun safe and ammunition in the other parts of the house. It is difficult to conclude that the ammunition produced at trial was not part of the ammunition referred to in Mr Polizzi’s replies at the managerial interview. Ground 9 is not made out.
The Remaining Sub-grounds
195 Ground 1.4, that Mr Polizzi’s conduct was not sufficiently serious to warrant removal, is a sub-ground common to appeal grounds 1 to 8. If there had been only one incident where Mr Polizzi had been abusive, threatening and completely unprofessional, then whether his removal for that one incident was harsh, oppressive or unfair would be considered in relation to that one incident in isolation. The Commissioner of Police did not lose confidence in Mr Polizzi because of one incident; he did so because of his conduct in all of the incidents in the issues in the NOITR. Therefore it is appropriate to consider these subgrounds together by looking at all of Mr Polizzi’s conduct.
196 In relation to Mr Polizzi’s conduct at the Telstra shop on 3 April 2012 the responses of the staff referred to in these reasons show that it was conduct which brought discredit on the WA Police. Although Mr Polizzi was off-duty at the time, it was known to staff that he was a police officer and he also produced his identification when entering the rear office. On its own, and if Mr Polizzi had 17 years of unblemished service, and there was little or no likelihood that conduct would be repeated in the future, his conduct on that day could be viewed as an isolated act of negligence, incompetence or unsuitability and which would not warrant his removal (Concut v Worrell (2000) 75 ALJR 312; 103 IR 160 per Kirby J at 51).
197 However, his conduct on 3 April 2012 was not an isolated event. There is also his rude and abusive conduct towards the HWS staff on three occasions, which can be viewed together with the four matters of rude and aggressive behaviour towards members of the public in 2006 and 2007.
198 There is also Mr Polizzi’s assault in 2011 of the female he shared a house with which was conduct while he was offduty. Assaulting her whilst offduty was conduct beyond being rude and abusive. A police officer assaulting a person while off-duty has the capacity to bring discredit to the WA Police (Carlyon v Commissioner of Police [2004] WAIRC 11966 at 200; (2004) 85 WAIG 708 at 725).
199 Mr Polizzi has had two incidents involving storing of firearms. One of those incidents also led to him giving evidence inconsistent with earlier statements made to Internal Affairs investigators.
200 Taken together, and giving Mr Polizzi the benefit of any doubt in relation to the smoking of synthetic cannabis, and his conduct whilst he was at the Police Academy and on probation and accessing his own details on the police computer, his conduct is sufficiently serious to materially affect the confidence of the Commissioner of Police in his suitability to remain a police officer. Mr Polizzi did not seek to argue otherwise in his response to the NOITR. The remaining sub-grounds are not made out.
CONCLUSION
201 The Commissioner of Police is entrusted with the statutory responsibility to maintain an efficient and effective Police Force in which the public has confidence. In performing this duty he is given wide powers under s 8 of the Act to remove officers in whom he has lost confidence. Even though the Commissioner of Police has lost confidence in an officer’s suitability to remain a police officer, the officer’s removal may be harsh, oppressive or unfair.
202 The task of the Commission is to decide according to equity, good conscience and the substantial merits of the case whether the removal of Mr Polizzi was harsh, oppressive or unfair. The test against which harshness, oppressiveness or unfairness of an officer’s removal is to be judged in an industrial sense is the notion of ‘a fair go all round’ (Carlyon, cited earlier at 182). Section 33Q(4) of the Act imposes a specific duty on the Commission to have regard to –
(a) the interests of the appellant; and
(b) the public interest, which 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.
203 Mr Polizzi has the burden of establishing that the decision to remove him was harsh, oppressive or unfair.
204 Mr Polizzi has shown that the Commissioner of Police erred in stating that Dr Piirto was certainly not of the view that he was suffering from AS and had disregarded Ms Herbert’s view that it is possible that Mr Polizzi has AS and it would be sensible for this to be formally assessed by a psychiatrist. He has shown that little reliance can be placed upon the conduct in 1995 and 1996 which is referred to in the NOITR. He has 17 years’ service although it is marked by the incidents referred to in the NOITR. There is no direct criticism of his onduty police work although there is some direct criticism of his personal conduct while on-duty. He has lost his job, which must be a most significant issue for him, although there is no evidence before the Commission of its actual consequence upon him.
205 However, in relation to the public interest, his abusive, threatening and completely unprofessional behaviour in relation to the Telstra shop employees on both 2 and 3 April 2013 and towards HWS staff, in the first instance identifying himself as a police officer and in the second while in uniform, has been shown to have reduced public confidence in the integrity and conduct of a police officer. His assault of the female in 2011 is conduct below the standard expected of a member of the Police Force and contrary to the behaviour off-duty expected by the Code of Conduct. He has previously demonstrated on four occasions in 2006 and 2007 an unprofessional attitude towards the public which shows a developing pattern of conduct, however his conduct in 2011 and at the Telstra shop shows a deterioration in his conduct.
206 We do not conclude that having AS would prevent a person from serving actively as a police officer. In this case, Mr Polizzi has not shown that his conduct is explainable by him having AS, misdiagnosis and prescribed medication. Much of his conduct at HWS and at the Telstra shop is sufficiently similar to the four issues of rude and aggressive behaviour towards members of the public in 2006 and 2007 when he does not claim to have been misdiagnosed or on prescribed medicine.
207 In relation to his claim of having symptoms attributable to AS, he had the opportunity to recognise he had a problem and to address it when he was directed to attend HWS. He did not do so; on his own evidence, he raised AS with Professor Skerritt, who seemed receptive to the suggestion, but then chose not to continue seeing him. He has not shown that his abusive, threatening and completely unprofessional behaviour since 2011, when his conduct caused him to be directed to attend HWS, is attributable to AS.
208 Moreover, Mr Polizzi’s hostility towards HWS by his conduct towards them and his marked reluctance to admit he had a medical problem at all does not make his task of showing he was not given a fair go all round an easy one.
209 In any event, he does not argue that AS caused his behaviour in relation to the two firearms storage issues, nor that it was a factor in the evidence he gave at the trial which was inconsistent with his earlier evidence. Nor does he argue that AS is the reason why he smoked synthetic cannabis, why he accessed the police computer or why he showed his police badge to try to retrieve what he considered to be his property.
210 He has therefore not shown that conduct of the kind he has shown from 2011 will not occur again. It is recognised that the Commissioner of Police may remove an officer not as a punishment but in order to preserve the public confidence in the conduct of the WA Police. The purpose of the power in s 8 of the Act is not to punish police officers but to protect members of the public, to maintain standards of conduct of the WA Police and to protect the reputation of the WA Police: Minister for Police & Anor v Smith (1993) 73 WAIG 2311 at 2327. The Act entrusts the Commissioner of Police with the responsibility to act to maintain public confidence in the WA Police and its members, and to take prompt action to that end if seen by him as necessary and desirable: (R v Miller; ex parte Parker (Unreported, WASC, Library No 980249B, 8 May 1998 per Franklyn J at 11). It is the responsibility of the Commissioner to ensure that only officers who are trustworthy and adequately behaved should remain in the WA Police: (Carlyon v Commissioner of Police, at [114]).
211 When matters of public interest (as understood by reference to s 33Q(4) of the Act) and the special relationship between Mr Polizzi and the Commissioner of Police which emphasises a duty to obey and uphold the standards of policing are taken into account, we do not see that the decision to remove him from the Police Force was harsh, oppressive or unfair. Mr Polizzi has not shown that he was not given a fair go all round and his appeal is dismissed.