Constable, promoted to senior constable, then, sergeant
A constable had been posted at several police stations in New South Wales since he completed training at the police academy in 1997. In 2003, he was promoted to Senior Constable and in 2005, he was promoted to Leading Senior Constable. In 2012, he was promoted to the rank of Sergeant. For good police work, he had received a number of awards and commendations.
Senior constable, disciplined
However, the sergeant had also a number of disciplinary actions against him for unauthorised absence, failing to provide supervision to a prisoner in custody, failing to update the prisoner’s custody management records, and for an unauthorised trip in a police vehicle. He had been warned that if he failed to comply with the Code of Conduct and Ethics, he would be subject to management action.
Demotion for sexual harassment
In 2017, the sergeant was demoted back to Senior Constable Level 6 because of a sexual harassment complaint made against him by a fellow female police officer. The senior constable made an offensive and inappropriate comment of a sexual nature to the female police officer and received a second warning notice that if he engaged in similar conduct in the future, he would be considered for removal from employment.
Conduct Management Plan
Consequently, the senior constable was placed on a Conduct Management Plan for 6 months where he was placed on one-on-one equity training for him to display a clear understanding of his obligations as a police officer under the Code of Conduct. He was also ordered to undergo 2 months of Respectful and Inclusive Workplaces training.
Sexual harassment allegations in August 2019
Heard comments from others around the station. A newly-hired police officer on probation had heard comments regarding the senior constable’s work history and his demotion. Other female officers had made comments to her about the senior constable making personal comments to them that made them uncomfortable, however, she kept an open mind and worked with the senior constable as professional colleagues.
Ignored personal comments. She had often worked on opposite shifts and met the senior constable only for an hour or two during the change-over, but the senior constable made personal comments to her. Two of those comments that she remembered were: “that jumper looks good on you” and “if I asked you out, would you go out with me.” The senior police officer made such comments sporadically, but she brushed them off or just ignored it.
Rostered to work together on 17 August 2019. When she saw that she was rostered with the senior constable, she asked to be placed on station duties so that there would not be any chance of her being in a police truck alone with the senior constable. She did not feel comfortable being with the senior constable, and she wanted to minimise any chance of him making more personal comments to her.
Two requests for a date. During the course of the shift on 17 August, as she was in the computer area, a conversation ensued and the senior constable asked her two questions: “will you have coffee with me?” and “will you go out with me?” She answered no. Other officers in the same area heard the conversation and asked “Don’t you have a girlfriend?” The senior constable answered “yeah.”
Later in the shift, the senior constable leaned on the partition that was to the right of her desk and asked “can I message you?” and when she said “no” he said, “my number is there, you can message me anytime.”
Later that afternoon, she was walking down the hallway where they hang jackets to dry; the senior constable was dragging a mattress through the same hallway, going the opposite direction when he laughed and said, “I should trip you over so you fall onto this mattress.”
Laughed it off initially. She initially laughed it off because she was nervous and was anxious to avoid conflict in the workplace, but through the day, the senior constable continued to ask her similar questions, phrased in different ways. It was not uncommon for the senior constable to make comments that made her feel uncomfortable but because he kept doing it through the shift, she felt uneasy. When he made the mattress comment, none of the other officers then present said anything. Given the context of him asking her out several times through the whole shift, she took that comment to have been of a sexual nature. Another officer looked at her with a shocked expression when the senior constable made the mattress comment. The officer felt angry at the inappropriate behaviour but also embarrassed because other officers had heard it.
Rostered to work together again on 26 August 2019. The officer avoided the senior constable during the shift. At around 4.00 pm, she stood beside a pigeon hold shelf and leaning over the desk, the senior constable sat in front of her and told her “You forgot to do the month ending in 2 vehicle diaries.” The officer replied that she did them.
The senior constable then asked: “Are we good?” The officer told him that she did not appreciate his comments the other day. The senior constable said that he thought they were joking and the officer replied that perhaps at the start but he kept going all day that it made her feel uncomfortable. The senior constable said he was sorry and should have kept his mouth shut. He asked if they could start afresh.
She approached a sergeant who advised her to note the incidents in her notebook. At that point, she only wanted her sergeant to know what was going on but did not want to file a formal complaint, as she felt that it was sufficient to deal with the issue.
Asked to be re-rostered on 23 December 2019. The period following, she was not rostered with the senior constable but when she saw on 23 December that they had been rostered together, she became anxious about what he might say on the shift. She spoke to her sergeant once more and asked to be re-rostered elsewhere. Her sergeant spoke with the inspector and asked her if she was willing to speak with the inspector. The formal report and investigation began.
The senior constable’s version of events
He asked only once. The senior constable claimed that he had only ever asked the female officer for coffee once in adherence to the Code of Conduct, but that he had “tested the waters” by asking her where she liked to drink her coffee. He denied having asked the female officer for her phone number or whether he could text message her. He denied telling her that she could text message him any time.
They were engaged in banter. On the date in question, they were engaging in banter; the senior constable did not detect any discomfort on the part of the female officer. He asked her indirectly to go out with him. The female officer was jovial, laughing, and being friendly that the senior constable thought that she was receptive to the idea of going out with him for coffee, so he asked her directly and she said no. He never raised it again after that.
He never made unsavoury comments. He had picked up a mattress off the street after a member of the public reported it, and he had brought it to the police station as evidence. As he was bringing in the mattress, he received belittling comments about the mattress.
He did not recall whether the same female police officer walked in whilst he was handling the mattress. He denied having said “I should trip you over, so you fall onto this mattress.” He said that he was mindful of talking to people at the station because of previous issues he’d had. He denied having said that or that he had intended for it to be of a sexual nature as he did not need any more issues.
Socially awkward all his life. In his response, he claimed that he was socially awkward and found it difficult to interact socially with people. All his life, he had struggled to make and keep friends and has avoided work functions such as Christmas parties. His invitation for coffee to the female police officer was an attempt at friendship, to get to know her better.
He may have undiagnosed autism. He claims that whilst he did not have a formal diagnosis of autism, he has always believed himself “different” and has attempted to manage the best he knew how, as there is strong evidence to suggest that he did have undiagnosed autism. He often misread visual and verbal communication cues, had always been a loner, and had a tendency to be overzealous when friendship was extended to him.
Findings of the administrative investigation
The allegations against the senior constable were found to be substantiated as other police officers in the station heard and saw what had happened. The evidence gathered by the investigators showed he had asked the female police officer to go out with him at least three times during one shift. This led the investigators to conclude that the senior constable intended to pursue a relationship with the female police officer. There was evidence that the senior constable’s requests were unwelcome and were declined on every occasion.
The senior police officer should have known that repeatedly asking the female police officer out after she had consistently declined each request would cause offense, humiliation or intimidation. The police guidelines specifically state that “repeated unwanted requests to go out on dates when the person has refused similar invitations before” is an example of sexual harassment. Thus, the senior constable’s insistence that he did not engage in sexual harassment shows a lack of insight into his own behaviour and a refusal to take responsibility for his actions. It also shows his lack of understanding of the high standards of behaviour expected of police officers.
Terminated from the police force
In the notice of termination, the commanding officer noted the senior constable’s rank, length of service, and the efforts of the police management to curb his behaviour. The second substantiated sexual harassment allegation came within 12 months of a previous substantiated sexual harassment allegation against him, 6 months after undertaking training on respectful workplace behaviour, 2 months of respectful and inclusive training, and only 18 days after he had been advised by the Superintendent that if his work performance falters in the same manner, he will be considered for removal.
The senior constable was removed from the police force on 17 February 2021 because if the police force did not terminate his employment, the police management would fail in its duty to provide a safe workplace for all its police officers. Keeping him in his employment would be risking the offending behaviour being repeated by him in the future.
Decision of the NSW Industrial Relations Commission
There was a valid reason to remove the senior constable and the removal was neither unreasonable or unjust. The Commission rejected the evidence provided by the psychiatrist that the senior constable had mild autism and that his autism was relevant to his conduct at work because it was insufficient to prove that his condition caused him to sexually harass the female officer. While it is true that removal from employment will cause a level of hardship, there is insufficient evidence to establish that the removal was harsh. The application was dismissed.
Mounce-Stephens v. Commissioner of Police  NSWIRComm 1008 (25 February) 2022
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