Officer removed for harassing a colleague: autism report not enough

What happened

Phillip Mounce-Stephens began training at the NSW Police Academy in August 1997. He received a number of awards and commendations, and in 2012 he was promoted to Sergeant at Orange Police Station.

His record also carried warnings. In 2017 he made a remark of a sexual nature to a junior female officer, which he admitted. On 15 August 2018 he was reduced in rank to Senior Constable and warned that similar conduct in future would see him considered for removal. He was put on a six-month conduct management plan with one-on-one training on respectful workplace behaviour. When the plan ended in July 2019, he was told further action would be considered "if your work performance falters again".

The shift on 17 August 2019

A female colleague, also a Senior Constable, saw she was rostered on the same shift. Because of his earlier personal comments, she asked to work at the station rather than alone in a car with him.

She said that during the shift he asked her to have coffee with him and to go out with him, and kept asking after she said no. Later he pointed to a staff phone list and asked if he could message her; when she said no, he told her his number was there and she could message him any time. Late in the afternoon, dragging an abandoned mattress down a hallway, he said: "I should trip you over so you fall onto this mattress".

She told a sergeant about it nine days later and wrote it up in her notebook that night, but did not want to make a formal complaint. When she saw in November that they were rostered together again, she raised it once more and an investigation began. It sustained the allegations, and on 17 February 2021 the Commissioner of Police removed him from the force under s 181D of the Police Act 1990 (NSW).

The claim

He applied to the Industrial Relations Commission of New South Wales for a review of the removal under s 181E. He admitted asking her for coffee but denied the repeated requests, the messaging and the mattress comment, and said asking someone for coffee is not sexual. In the alternative, he said removal was harsh given his long service and personal circumstances, including post-traumatic stress after a fatal crash on duty in 2010.

He had told the Commissioner of Police he was socially awkward, misread cues and might have undiagnosed autism. For the review he relied on a psychiatrist's report dated 21 July 2021 diagnosing "mild Autism Spectrum Disorder" and saying it was relevant to his conduct at work.

What the Commission decided

Commissioner Murphy dismissed the application. He found the colleague a witness of credit: she had nothing to gain by inventing the allegations, while the officer had a strong motive to deny them because his job was at stake. Her account of repeated requests was supported by other officers, and her account of the messaging matched her notebook. The officer, by contrast, accepted under cross-examination that it was "a possibility" he had asked to message her.

On the mattress comment, the colleague and a constable who heard it both gave evidence the Commission called compelling. The officer's own counsel accepted that the comment, if made, carried sexual connotations. The Commission also noted that the force's guidelines, on which he had recently been trained, listed repeated unwanted requests for dates after a refusal as an example of sexual harassment. "The applicant was aware of this but chose to ignore it."

Why: the legal test

On review, the Commission asked whether there was a valid reason for the removal and whether it was harsh, unreasonable or unjust. Because the allegations were serious, it had to be satisfied of them to the standard in Briginshaw v Briginshaw: on the balance of probabilities, but with care that matches the seriousness of the finding.

The parties argued over the definition in s 22A of the Anti-Discrimination Act 1977 (NSW): unwelcome conduct of a sexual nature, in circumstances where a reasonable person would have anticipated the other person would be offended, humiliated or intimidated. The Commission agreed with the Commissioner of Police's findings, held there was a valid reason, and found the removal neither unreasonable nor unjust.

On harshness, the psychiatrist's report did not help. It appeared to accept the officer's account that he stopped after one refusal and never made the mattress comment, both of which the Commission had rejected. At its highest it said the condition was relevant to his conduct. That fell short of showing it caused him to harass a colleague after he had already been demoted and warned for similar conduct. It accepted the hardship of losing his job, but every removal causes some hardship, and colleagues have the right to work without being harassed.

What this means for you

If you are relying on a medical condition to explain conduct at work, the evidence needs to link the condition to what happened, and it should be based on facts the decision-maker is likely to accept. A report that adopts your denials may count for little.

If you are on the receiving end of unwanted attention, this case shows the value of a note made at the time and of telling a supervisor early, even if you are not ready to make a formal complaint. Earlier warnings also matter: a second incident after targeted training and a warning is likely to be viewed seriously. It is worth getting advice early.