BJY v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BJY v State of New South Wales (NSW Police Force) [2023] NSWPIC 535
APPLICANT:	BJY
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Paul Sweeney
DATE OF DECISION:	13 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by former police officer for weekly compensation as a result of an accepted psychological injury; state denied liability on the basis of section 11A(1); applicant suspended for lengthy period and investigated for misconduct prior to resignation; applicant previously exposed to potentially traumatic events conflicting diagnoses; Northern NSW Local Health Network v Heggie and Department of Education & Training v Sinclair considered; Held – the State had proven that the applicant’s injury was predominantly due to reasonable action with respect to discipline or dismissal; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

BJY (the applicant) joined the NSW Police Force (the respondent) in November 1997 and was attested as a police officer in May 1998. By 3 September 2020, he had attained the rank of [redacted].
On that date, he was served with a Notice dated 31 August 2020 signed by Commissioner Fuller. The Notice stated that the Commissioner was considering making an order for his removal from the NSW Police Force under s 181D of the Police Act 1990. It continued:
“In accordance with s 181D(3)(b), prior to making my decision, you are hereby given 21 days from the date of the service of this notice, within which to make written submissions to me in relation to the proposed action. You should understand that this is not a direction to provide written submissions and you are not obliged to do so.”
On 12 October 2020, the applicant’s solicitor provided a response to the Commissioner. Before a final decision was made by the Commissioner, the applicant resigned from the police force on 19 February 2021.
In May 2021, the applicant obtained employment with the Office of Fair Trading. He has remained in that employment.
It is common ground that the applicant suffers from a psychological injury as a result of his service with the respondent. The respondent denies, however, that it is liable to pay the applicant compensation as the injury was wholly or predominantly caused by performance appraisal, discipline, and/or dismissal as those words are used in s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

By these proceedings, the applicant claims weekly compensation from the respondent from 12 January 2022 to date and continuing. The date of injury is said to be 19 February 2021, presumably a deemed date pursuant to ss 15 or 16 of the 1987 Act. The place of injury is particularised in the Application to Resolve a Dispute (the Application) as follows:
“Various crime scenes in the State of NSW and NSW police stations.”
The injury description is particularised as follows:
“The applicant suffered a psychological injury including post-traumatic stress disorder and/or adjustment disorder as a result of the nature and conditions of his duties as a member of the NSW Police Force between November 1997 and 19.2.2021.”
The Application particularises significant events in the course of the applicant’s deemed employment between 22 June 1999 and 18 February 2021.
When the matter came on for conciliation and arbitration on 25 August 2023, Mr Hammond, of counsel, appeared for the applicant and Mr Stockley, of counsel, appeared for the respondent. I was informed by counsel that the parties were unable to resolve the threshold question of the application of s 11A to the applicant’s psychological injury. There was also an issue as to the characterisation of the psychological injury. The applicant asserted that it was post-traumatic stress disorder whereas the respondent argued that it was an adjustment disorder resulting from the disciplinary process which culminated in the Notice of 31 August 2020. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the issue in dispute during the course of the matter but were unable to reach a mutually acceptable resolution.
At the commencement of the arbitration hearing on 25 August 2023, Mr Hammond made an application to strike out the respondent’s dispute notice for non-compliance with s 78 of the Workplace Injury Management And Workers Compensation Act 1998. For reasons which I gave at the arbitration hearing, I dismissed that application.
Mr Hammond also stated that he wished to withdraw pages 226 to 432 of the documents attached to the Application and to object to pages 699-701 and 715-920 of the documents attached to the Reply. The basis of his objection was s 170 of the Police Act 1990 which, subject to certain exceptions, creates a statutory immunity in respect of the production of documents brought into existence for the purpose of Part 8 of the Act. That part is concerned with the investigation of complaints made against police officers.
As the objection involved consideration of a large number of documents, each of which had to be read and considered in dealing with the objection, I stood the matter over to 27 September 2023 and ordered the parties to provide written submissions on the application of s 170 to the documents objected to by the applicant. I was also conscious of the need for the respondent to have the opportunity to bring the evidence of its witnesses within the exception to the statutory privilege in s 170 by obtaining their consent to the production of their statements.
When the matter came on for a further arbitration hearing on 27 September 2023, the documents before the Commission were as follows:
(a)    the Application, save for pages 226-432;
(b)    the Reply and the documents attached;
(c)    an Application to Admit Late Documents dated 13 July 2023 lodged by the applicant, and
(d)    an Application to Admit Late Documents dated 18 September 2023 lodged by the respondent.
At the commencement of the arbitration hearing, Mr Hammond also objected to the tender of the documents attached to the Application to Admit Late Documents dated 18 September 2023. The basis of his application was the belated lodging and service of the documents close to the hearing date.
For reasons given at the arbitration hearing, I ruled that the documents at pages 699-701 and 715-920 of the Reply were inadmissible as they were privileged pursuant to s 170(1) of the Police Act 1990. Conversely, I held that the documents attached to the respondent’s Application to Admit Late Documents dated 18 September 2023, a redacted Notice pursuant to s 181D(3)(a) of the Police Act 1990 and two letters, one undated from Detective Acting Inspector Dean Latham of the Professional Standards Command (PSC), and a letter from the Commissioner of Police dated 13 September 2023, were admissible. The letters stated that the witnesses were willing to produce the redacted s 181D(3)(a) Notice and Inspector Latham’s report which was incorporated in it. I held that the applicant was not prejudiced by the admission of this document, as an unredacted version had been in possession of the applicant and his legal advisers prior to the inception of these proceedings.
I was told from the bar table that the Notice was redacted as the names of two of the witnesses who provided evidence to the PSC were the subject of a suppression order.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to reiterate each of counsel’s arguments in these short reasons. As it was common ground that the applicant suffered a psychological injury the primary issue in dispute was the application of s 11A. As canvassed above, that issue involved characterisation of the applicant’s psychological injury Both counsel addressed on the issues of whether the respondent had proven that the applicant’s psychological injury was wholly or predominantly caused by actions with respect to discipline or dismissal and, if so, whether those actions were reasonable.
Mr Stockley submitted that while the applicant’s written evidence recorded many unpleasant events in the course of his duties, it did not record that he had experienced any psychological reaction or sought medical treatment as a result of these incidents. He also referred to the incongruous histories recorded by the two qualified psychiatrists, Dr Doris, on behalf of the respondent, and Dr Anand for the applicant. The former had received no history of psychological illness relating to the applicant’s duties before his suspension, whereas the entirety of Dr Anand’s report dealt with events prior to the suspension. The thrust of the submission was that the applicant’s history to Dr Anand was not reliable. He submitted that Dr Anand’s diagnosis of Post Traumatic Stress Disorder (PTSD) was implausible; and there was little, if any contemporaneous medical evidence to support that diagnosis. It followed that the Commission should accept the opinion of Dr Doris and find that the applicant’s psychological injury was predominantly caused by the applicant’s suspension associated with the disciplinary process.
In respect of reasonableness, Mr Stockley submitted that the complaints against the applicant were “extremely serious”. The s 181D Notice sets out the substance of the complaint and the course of the investigation that followed. The investigation had to be undertaken with caution, care, sensitivity and discretion. It was understandable that such an investigation, involving the requirement to give the applicant a right to reply, would take a long period of time. In that context the Commissioner’s actions were reasonable. It was unnecessary for the respondent to prove the truth of the allegations,
Mr Hammond submitted that the applicant’s evidence should be accepted. He referred to his record in the police force. He argued that the very different histories recorded by Dr Doris and Dr Anand may be explained by the former’s failure to adequately enquire as to the relevant history. For that reason, Dr Anand’s diagnosis of PTSD should be preferred. It was consistent with psychometric testing undertaken by a treating psychologist. There was also some evidence which corroborated complaint relating to employment stressors before the applicant was suspended from duties.
Mr Hammond submitted that the respondent had ample opportunity to acquaint Dr Doris with this evidence and the applicant’s statement. The absence of an opinion from the doctor that was fully informed by this information was a significant flaw in its case. The respondent’s s 78 Notice reached conclusions on the issues of causation and diagnosis without consideration of the evidence of psychological injury predating the commencement of the investigation.
Mr Hammond conceded that it was reasonable for the Commissioner to commence the investigation. He submitted that it was inappropriate for the respondent to submit that it had been precluded from tendering evidence on the issue of reasonableness because of the exclusion of evidence pursuant to the statutory immunity in s 170 of the Police Act 1990. He submitted that the disciplinary proceedings undertaken by the Commissioner had taken an inordinately long time. Plainly, that had a detrimental effect on the applicant’s psychological health. The respondent had ample opportunity to explain the delay but had put on no evidence which addressed the issue. In the circumstances the respondent had not proven that its actions were with respect to discipline or dismissal were reasonable. He submitted that as the respondent had not sought to prove the truth of the allegations against the applicant he would not address the individual allegations. He submitted, however, that the process was flawed.
I will return to the submissions of counsel in deciding the issues in dispute. It is first necessary to set out compendiously the evidence of the applicant, the evidence of the two lay witnesses who provided evidence in the respondent’s case and the contents of the s 181D Notice. What follows is not intended to be a comprehensive survey of the evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.

Applicant

The applicant’s evidence is contained in a signed statement of 7 February 2023. He was not cross-examined on the statement. He records his employment history in the police force and sets out in some detail significant incidents at each of the stations to which he was assigned. The applicant commenced his policing career as a Probationary Constable performing general duties at Chatswood Police Station. In early 2000, he attended a suicide at St Leonards Railway Station. The deceased’s body was “badly broken up” and decapitated. He says he recalls having to pick up body parts.
In the same year, the applicant arrested a male following a domestic violence incident at Lane Cove. The male “head-butted the metal cage” of the vehicle. There was “blood everywhere”. The male subsequently sued the police in a civil case. The applicant states that:
“As a junior officer this created a lot of stress for me as I had just bought a house and thought I could lose it”.
On 22 June 1999, the applicant encountered the body of a suicide victim hanging in a passageway at a dilapidated building. He states that “her tongue came into contact with my face.” He says that when he tried to lift her up “her body temperature let him know she was deceased”.
In 2001, at Lane Cove, the applicant attended an incident involving the same offender who had head butted the metal cage. He was holding a broken bottle and threatening to cut his throat. He states:
“A wrestle ensued and I cut my hand and it was covered in blood.
He informed us that he was HIV positive. I had to undergo a series of blood tests and wait 3 months for the result. My then wife and I had to delay starting our family because of this.”
From 10 June 2001, the applicant was stationed at the Brisbane Waters Local Area Command. In 2002, he was involved in an incident at Bateau Bay where his vehicle was rammed and the offender drove at him after he alighted from the vehicle.
In 2002, the applicant was the subject of a complaint “regarding getting my car towed for free while on duty”.
In 2005, the applicant attended an attempted murder suicide. He encountered the body of a semi-naked female who had been sexually assaulted. Her throat had been cut and the floor of the house was covered with blood. He escorted the body to the morgue where he had to remove jewellery from her body.
From 27 February 2005 to 12 July 2008, the applicant was stationed at the State Crime Command. In 2005 he was involved in an incident at Bella Vista where shots were fired at a driver approaching a block in an industrial area.
On 15 November 2009, the applicant returned to Brisbane Waters. In March 2010, he negotiated with a male who was threatening to self-immolate in a puddle of petrol. He and another officer put out fire on the man’s clothing with a hose but narrowly escaped injury from the burning building.
In 2010, the applicant was interviewed by the PSC after socialising with another detective who was under investigation by the unit. After being forced to provide a statement, he was harassed and intimidated by other officers at the station. He was also ignored by parents at his children’s football club, who knew the officer’s family.
During this posting, the applicant was the subject of a further complaint that he had interfered with a domestic violence investigation. The complaint was not sustained.
In 2011, the applicant was visited at his home by the Sergeant at Arms of the Rebels OMCG. This unsolicited call caused him “great stress and also upset my family”. He was required to erect spotlights around his property for protection. The respondent performed no risk assessment and took no action to provide him with any protection.
In 2011, the applicant was named in a law suit brought by an offender he had arrested. He states there was no support from the respondent during his case. The offender won the case.
On 2 February 2013, while at the Brisbane Waters Command as a detective, the applicant was assaulted by a mental health patient at Kariong.
In 2013, the applicant was transferred to general duties at the North Sydney Police Station. He states that the Local Area Commander was the subject of many complaints and he had many arguments with him over the way he treated staff. He forwarded a long email to the Commander over his treatment of two senior uniformed officers. He says that the email “resulted in me no longer being permitted to work as an acting duty officer”.
On 26 November 2013, the applicant injured his back and neck while attempting to prevent a suicide on the Harbour Bridge. He was given a Commander’s recommendation for this incident. He says that between 2013 and 2017, he attended numerous “traumatic and distressing incidents” including numerous deaths, suicides, attempted suicides and motor vehicle accidents. The applicant states:
“By 2017 I had been exposed to enough death and destruction as a general duties officer and this began to affect my wellbeing. I was drinking too much and was anxious every time I went to work worrying about what I would face when I commenced my shift.
I began looking for transfers out of general duties and managed to successfully obtain a position at Info Link.
In August 2017, I caught my wife cheating on me with a local younger guy. This resulted in me moving out of the family home for a short period of time. This caused me a lot of embarrassment as Terrigal was a very small community. I avoided a lot of people and had to deal with anger and depression. This was one month prior to me starting work in my current role.”
After commencing at Info Link, the applicant found that he was under a great deal of stress, trying to sort out his family problems and learning a complex new role. He said that he was drinking alcohol more frequently. In August 2018 he applied to work part time, as “I wasn’t coping well at work due to the stress of the new role and my family problems”. He was allowed to work one day per week from Police Link Tuggerah, which enabled him to pick up his children earlier on the Thursday. The applicant then records a number of “interactions” with the New South Wales Police Force which he says were not investigated ethically and impartially and within a reasonable timeframe.
On 20 January 2019, while off duty, the applicant was involved in a confrontation with police officers after drinking with IR and TP at Sirens nightclub at Terrigal. He accepts that he was intoxicated. On leaving the building, IR was arrested, but subsequently released. After identifying himself as a police officer, he was interviewed by Inspector Webber and told to go home. He subsequently became aware that it was alleged that he met LR, the brother of IR and a suspect in a major police operation, at a café on 17 January 2019. He states that the alleged meeting did not occur.
Then, on 14 February 2019, the applicant was required to meet Detective Inspector Dixon at Tuggerah as a complaint had been made against him concerning the off duty incident at Terrigal. On meeting with Inspector Dixon, he was told that he had breached the Code of Professional Conduct. He says that Inspector Dixon was not able to provide details of the alleged breach but he expressed concern at the “way I spoke” to police officers at Sirens nightclub. The applicant asked Inspector Dixon to obtain CCTV footage of the incident and also the footage from the body cameras worn by the police who attended the incident. He also told him that he wished to obtain legal advice.
On 27 February 2019, the applicant was involved in an argument with a team leader, Sarah Kennedy, who wished to know his “family situation” and why he was requesting long service leave. He says that he was “upset and emotional over this argument” and he was forced to leave work early and take two hours annual leave. He says that following this he attended a general practitioner and was certified as unfit for work from 28 February 2019 to 8 March 2019 due to stress-related issues. On his return to work his firearm was removed by Inspector Walters. The applicant saw Dr Au at Erina on 1 March 2019. He was prescribed Sertraline. He was referred to a psychologist Susan Wojciechowski also at Erina. He was diagnosed with depression.

The applicant says that he was told by another officer that the manager at Info Link had described him as a “sook”. He describes his marital situation as dire, being locked out of his home and having to start again to purchase furniture as all his property was locked in the family home. He says that he was required to begin proceedings in the Family Law Court which are “still ongoing and bills are starting to add up which is causing me a lot of stress”. He continues:
“Since my marriage break-up and my loss of confidence with the police at Gosford (regarding the off duty complaint and the way it was handled) I have not socialised with many people. I have been drinking more than I usually do and have been suffering from depression.”
The applicant says that in 2019 he provided IR details of how to apply for information held by the NSW Police Force under the GIPA legislation. He states that this was publicly available information and he would have provided to any member of the public. He says that he was aware that IR’s brother, LR, who had been charged with drug importation, made a GIPA application but he did not deal with it and did not speak to anyone at INFO LINK about it. This was confirmed by an audit trail subsequently conducted by the respondent.
On 6 May 2019, the applicant was served with a Region Commander’s warning by Assistant Commissioner David Johnson in respect of the incident that occurred outside of the Sirens Nightclub. On 8 May 2019, he was served with a conduct management plan by the GIPA unit co-ordinator. At this stage, he said that he burst into tears in her office.
On 19 June 2019, the applicant says he complained to Chief Inspector Christie Walters concerning his team being short-staffed. He again raised this issue at the monthly team leaders meeting on 25 June 2019.
On 9 July 2019, the applicant was recalled to duty to attend an NCAT hearing while he was on annual leave. He was required to attend to give oral evidence. He says that his annual leave was recredited but it did cause inconvenience and it could have been “handled better”.
On 14 August 2019, while off duty, he was detained by three detectives from the PSC who required him to undergo a targeted drug test and informed him that they wanted to interview him in respect of “pervert the course of justice”. His mobile phone was seized and retained “for 4 months”, his car was searched and he was taken to Terrigal Police Station where he was drug tested. He sought assistance from the Police Association.
Subsequently, he was criticised by Inspector Beatson for “relying on his legal rights” and not providing the PIN of his telephone to PSC. He was advised that he would be suspended soon. He informed the PSC that he had legal advice not to take part in an interview as he had not been informed of the allegations against him. He also told him that the police had failed to investigate the incident outside Sirens nightclub and “had hidden the Body worn camera evidence” relevant to the allegation against him.
On 21 August 2019, Inspector Beatson and Chief Inspector Walters came to his home and served him with a suspension notice. He says that he was directed to call Inspector Beatson on his mobile phone if he was away from his home for more than 24 hours and notify him where he was staying. He says that Inspector Beatson had no right to give him this direction.
On 2 September 2019, a representative of the Police Association wrote to the PSC on the applicant’s behalf requesting it provide details of the allegation that he had perverted the course of justice. He says that they refused. He continues:
“To this date I am still unaware as to what was alleged against me.”
On 1 October 2019, the applicant was advised that he had tested positive for cocaine. On 17 October 2019, he was served with a Direction to attend an interview at the PSC. The complaint alleged that the applicant had been assisting LR, a criminal involved in serious drug offences and that cocaine was detected in a hair sample on 16 August 2019. He reiterates that he was not told the details of the allegation of “pervert the course of justice”. He refused to sign the direction without legal advice. He was also told by Chief Inspector Kristy Walters that he should desist from contacting the forensic science laboratory in South Australia in connection with his drug test. He responded that she “could not direct me to contact them”.
On 21 October 2019, the applicant sent an email to Detective Sergeant Matt Crawley of the PSC advising that he was relying on his right to silence and would not take part in the interview. The direction to attend the PSC was withdrawn. He was overseas on holidays between 17 October 2019 and 19 November 2019
On 2 December 2019, Chris Beatson attended his home and advised him that the PSC had no “other evidence other than the body wire recording”. He said that they had recommended that he be suspended without pay. He states that he had not been given a copy of the body wire recording.
On 16 December 2019, he was served with a show cause notice. The investigation report alleged five sustainable findings, four of which related to his alleged relationship with LR and his relationship with his brother IR. He was given a copy of the transcript of the body wire audio but not the actual audio. He saw a lawyer. He says the source being used by PSC was a convicted child sex offender. On 13 January 2020, he was advised that the PSC had “decided not to suspend me without pay”. He says that during this period he was “extremely stressed, anxious and upset”.
On 20 January 2020, he was provided with a copy of the body wire recording but no transcript was supplied. He was informed by his lawyer that the transcript was not an “accurate reflection of what was on the audio”.
On 22 January 2020, he lodged a complaint to the Law Enforcement Conduct Commission concerning Detective Sergeant Matthew Crawley of the PSC.
On 10 March 2020, a reply was sent to Inspector Beatson by his solicitor, Greg Willis, in response to the notice to show cause why the allegations against him in the investigation report should not be sustained.
The applicant then had discussions with both Inspector Beatson and Inspector Crawley in respect of the discrepancies between the body wire transcript and the audio recording. He says that he was told by Inspector Crawley that it was “just a typo”. He says, however, that it was quite significant and changed a response that he gave into an admission that he suggested the drawing up of plans in respect of a “drommel” (trommel?). (My italics)
On 3 September 2020, the applicant was served with a s 181D(3)(a) Notice by Inspector Beatson. He was given 21 days to show cause as to why he should not be dismissed by the Commissioner.
On 12 October 2020 his lawyer, Greg Willis sent a response to the show cause notice. He says that during the period between October and February his psychological condition “deteriorated”. He says that he was unable to put up with the stress and anxiety.
The applicant resigned from the police force on 19 February 2021. He obtained his employment with Fair Trading in May 2021. He says that he has not been fit to work as a police officer since 19 February 2021. He saw his present solicitor on 10 September 2021. On 15 December 2021, he saw Dr Massie and obtained a medical certificate of capacity and he was referred to see a psychologist.

Kristie Walters

Ms Walters is currently the Director at Police Link Command. She states that she first worked with the applicant at the Harborside LAC at North Sydney where he “met the requirements of his role as a General Duties Supervisor”. She states that:
“Leading up to BJY’s last day of service there were a number of personal matters and incidents outside work that impacted on his role as an NSW Police officer. BJY was issued with a Region Commander’s warning notice and placed on a conduct management plan as a result of an incident that occurred off duty. There was a further investigation in relation to another matter as disclosed in BJY’s statement.”
Ms Walters continues:
“At 1701 on 6th of August 2018, I received an email from BJY, in relation to a personal issue that he had been dealing with for the past few months, this being his marriage breakup. BJY had revealed his personal situation about two months prior, however he requested that I keep the matter confidential. We had previously discussed speaking with someone from EAP however he indicated that he was embarrassed and did not want to talk with anyone. In his email on 6/8/18, BJY stated that if he started talking to a doctor and unloaded to EAP or a doctor about the way he was feeling, he had no doubt that he would be put off on HOD or sick leave straight away and his firearm would be taken away.”
Subsequently, Ms Walters told the applicant that she would be “restricting his access to his firearm for a period of time”. She also discussed the possibility of a flexible work arrangement given his family circumstances.
Ms Walters states that she has no recollection of the applicant advising that his team was short-staffed or a direction that he call on Inspector Beatson’s mobile if he was away from home for more than 24 hours. She says that she expects that Inspector Beatson probably said to Chris that “if he was planning a holiday or staying away from his normal residence for a period of time to let him know”.
The witness recounts the conversation with the applicant on 17 October 2019 when serving the departmental investigation paperwork. She says that she had to serve departmental documents on a number of occasions and was aware that an officer may refuse to sign. She states that she did not direct him to sign the document. She states that she did advise the applicant that it was not appropriate for him to contact the forensic laboratory in South Australia and that he should direct his enquiries to Senior Sergeant Crawley. She states that upon the applicant resigning from the New South Wales Police Force, she attended his address to collect his property and “wished him well for the future”.

Detective Chief Inspector Dixon

Detective Chief Inspector Dixon is the manager of the Child Wellbeing Unit of the Police Link Command.
He says that on 11 February 2019, he was provided with an internal complaint file in respect of the applicant’s behaviour in an incident on 20 January 2019 “commencing inside of Siren’s Nightclub” at Terrigal and continuing outside where it was alleged that he attempted “to use his office to indirectly influence the officer’s actions”.
The witness subsequently met with the applicant and provided him with a support package and the relevant guidelines.
On 15 February 2019, Detective Chief Inspector Dixon advised that the body worn cameras on issue to the initial responding officers on the night in question were “faulty and not operational”.
On 11 March 2019 , Detective Chief Inspector Dixon interviewed the applicant with a support person Detective Chief Inspector BJY Trayhurn. The interview was electronically recorded.
The witness says that the applicant was told of the events and conversations by officers and witnesses at the scene. He vehemently denied the allegations.
The witness said that he completed his investigation on 3 April 2019 and recommended that the matter against [redacted] BJY be sustained. He continues:
“I based my decision for this recommendation on the fact that the version of events supplied by [redacted] BJY were significantly inconsistent with that captured on the CCTV footage which supported the information supplied by attending officers and witnesses.”
In late 2019, the witness says that he attended the applicant’s home and advised him that a drug test that he had been the subject of had returned a positive reading for cocaine.

Section 181D Notice

The s 181D(3)(a) Notice dated 31 August 2020, was served on the applicant on 3 September 2020. It summarised the material on which Commissioner Fuller doubted the suitability of the applicant to continue as a police officer taking into account his integrity and conduct. By way of background, it noted that LR had been charged with importation and supply of commercial quantities of prohibited drugs on 3 August 2018, was on conditional bail, and had been served with the prosecution brief. It incorporated aspects of the report of Detective Senior Constable Dean Latham (Latham Report), redacted summaries and excerpts from transcripts of witnesses statements, covert recordings of conversations, covert surveillance and other information, including the applicant’s response to the allegations of misconduct.
In summary form, the allegations were that the applicant:
·        deliberately placed himself in a position conflict-of-interest and failed to promptly report or manage that conflict by associating with LR, IR, and Witness B In Breach of the NSW Police Force Code of Conduct and Ethics (Code);
·        improperly sought to assist to defend criminal charges laid against him in August 2018 in breach of the Code;
·        improperly sought to undermine The NSW Police Force’s mission and function by providing advice to LR, IR, and Witness B with a view to assisting them to avoid detection for criminal offences;
·        improperly disclosed confidential information relating to police methodology to Witness B with a view to having that information passed on to LR contrary to the Code, and
·        was untruthful in stating that the did not know or associate with LR and had not accessed the police brief up or accessed police information concerning him.
The Latham Report stated that an anonymous witness, Witness B, furnished information that a [redacted] named “BJY” met with LR at the Body Fuel Cafe at Tuggerah Business Park on 17 January 2019. The witness stated that he was told this person gave LR “pointers” and helped him to “put together an alibi defence” for his forthcoming trial. He also told LR to have 3D plans drafted of a Trommel bucket so that he could have “a legitimate reason to import the NSK bearings … that contained the drugs.”
The Latham Report also stated that Witness A “separately” supplied information to the police that the applicant was assisting LR by “reviewing” the prosecution brief of evidence. He had told LR “how poor his police brief” was and advised him on “material to subpoena from the police”. He also informed him that there were two CNI numbers for LR on the COPS data base. The existence of two CNI numbers had been confirmed by Latham.
The Notice recorded that Witness B sated he had previously encountered LR’s brother and “BJY” at the Body Fuel Café in Tuggerah in August 2018 where LR’s brother and “BJY” went outside the café and spoke for 15 to 20 minutes, before the police officer left. In December 2018, he witnessed “BJY” speaking with LR for about an hour near the Terrigal Surf Club.
In January 2019, Witness B met LR and “BJY” leaving the Alpha Zeta Café. LR told Witness B that “BJY” was going through the brief highlighting aspects that could be challenged. IR is alleged to have said that the police officer would be “going through LR’s brief to find all the weak points”.
The Notice stated that on 15 March 2019, Witness B attended a coffee shop in Terrigal where he met with “BJY” and asked him:
”Witness B: How’s the brief coming along?
BJY: Good mate … there is a lot of holes in it. There are things they haven’t done correctly”.
The Notice records that Witness B states he visited LR in Silverwater Gaol in June 2019, after he was “arrested again and refused bail”. Witness B says that LR informed him on this occasion that “BJY” had given him the idea to “draft backdated plans for the trommel bucket”.
On 15 April 2019, Witness A had a covertly recorded conversation with LR. An excerpt of the transcript includes a discussion of a GIPA application and that “BJY told me to do it”. LR said that “BJY” had given him “heaps of things to subpoena and that”. There was also some discussion of a warrant which was “illegal”.
On 14 May 2019, Witness A had another recorded discussion with LR. The excepts from the transcript record LR saying that “BJY” had “been through my brief … he’s found so many fucking holes.” There are references to the nature “BJY’s” work at as a police officer. It also records that LR said that “BJY” disliked the police force and was “gonna milk the cunts”.
On 14 May 2019, Witness B met with the applicant at Woolworths at Erina Fair Shopping Centre and conducted a covertly recorded discussion concerning LR’s case. In an excerpt from the transcript, the applicant is alleged to have acknowledged that LR was in “a bad position” and that he “had been over to LR’s house and had big nights”. It records the applicant saying “If I come under notice – it’s only a matter of time”. He is also recorded discussing the whereabouts of a police informant and that the charge sheets “on the first ones weren’t … accurate”. He also said that the police had “listening devices in cells now”. The following is recorded:
“I’m thinking I might even get out of the cops pretty soon, but I’m on holidays, going overseas next week, I fuckin need to get away from everything, I just got the shits. I’m expecting someone’s going … lock, going to call me and ask me stuff. But they can’t prove, all they’ll get is that I’m hanging out with someone who was on bail … can’t sack me over it … I’ll just say I didn’t know … I haven’t seen him since but unless there’s a camera in the house. I’ll deal with that one when”.
The Commissioner concluded that the transcript appeared to suggest that the applicant had previously conducted conversations with LR “about his criminal charges, including the brief of evidence against him, and whether he should enter into a plea bargain.”
The Notice states that covert surveillance of the applicant was conducted 19 July 2019, the applicant had a conversation with LR’s brother, IR at View Street North Avoca which lasted for approximately 15 minutes. It alleges that during further covert surveillance on 11 August 2019 the applicant drove to an address at Beaufort Road, Terrigal where IR was also observed on the top floor of the premises. They were observed “speaking together” on a balcony.
The Notice continues that, on 17 September 2019, Detective Sergeants Crawley and Latham met with LR at the Silverwater Correctional Complex. LR refused “to acknowledge that he knew” the applicant.
The Notice then summarises the applicant’s submissions contained in the letter from his solicitor Mr Willis dated 10 March 2020. It states that he denied assisting, counselling, protecting, or providing police methodology or processes to LR, denied interfering in a police investigation of LR, and denied associating with LR “at any time”. It recorded that the applicant knew IR, as he had lived in the same neighbourhood as him, and their children went to the same school. On one occasion IR had shown him documents in relation to a “controlled operation” and asked him questions about them. He responded that LR’s lawyers may need to issue subpoenas. He also explained the nature of a GIPA application and the process for making such an application. He was also told that LR’s lawyer said there were problems with the brief, including that it “had holes in it”. He submitted that the advice that he gave IR was no different to “the advice you provide to members of the public when on duty”. The applicant denied, seeing or reading the brief of evidence on IR.
The Notice records that the applicant did meet IR during a coffee break and explained to him the process of a GIPA Act application. It states:
“You say IR then showed you some charge documents, as well as documents relate to a Controlled Operation, and asked questions about them, to which you replied that LR’s lawyer would need to issue subpoenas to obtain documents relating to the Controlled Operation, but that he may not get those documents if they were protected.
The Notice records that the applicant submitted that the references to him hating his job in the conversation of on 14 May 2019 were references to him telling IR about his marriage breakdown and associated impact on his mental health.”

The Notice records that the applicant denied meeting LR at a Christmas party in December 2018, at the Alpha Zeta Café in January 2019 or at the Terrigal Surf Club on 15 March 2019. He had only met LR on one occasion as he left a coffee shop opposite the Terrigal Surf Club where he encountered him and Witness B walking on the footpath. There was no discussion about the charges against LR, the brief of evidence or any subpoenas.
The summary of the applicant’s submission continued:
“You acknowledge that you are ‘embarrassed and devastated' that you spoke to a person like Witness B in the manner you did. You say you were humiliated when you read the transcript and were at a loss to explain some of the things you said. You assert that, having had time to consider the circumstances, you feel that the ‘looseness of conversation with [Witness B] was most likely influenced by [your] state of mind at that time’. You say your mental health issues were well known to your colleagues and superiors. You also noted that, around that time, you were dealing with another investigation into your conduct arising from an incident at Sirens Nightclub in Terrigal and felt aggrieved about the departmental process that was followed, which led you to feel bitter about your workplace. You deny the allegation that you have been communicating Police methodology to L R and his associates, and say that, even if things you said to Witness B might amount to a disclosure of methodology, it must be questioned whether that information was 'confidential'. You also assert that, even if the information you gave to Witness B is considered confidential, there is no evidence of any harm arising from your conversation with Witness B.” (Italics as in document.)
Under the heading Consideration, the Notice stated:
“In regard to Allegations, 1 2, 3 and 4, I am very concerned that the available evidence appears to suggest that you have given, or at the very least attempted to give, advice to LR both directly and through others such as IR and Witness B, on Police methodology, deficiencies in the criminal brief of evidence against him, and strategies for fighting the charges all with a view to LR defeating the prosecution that had been brought against him for serious drug offences.”
It also stated:
“I am troubled by the available evidence, which suggests that your response to your alleged misconduct is lacking in candour and designed to conceal the extent of your alleged behaviour. In particular, your response of 10 March 2020 clearly states that you do not know, and have never associated with LR. However, this assertion is at odds with the other evidence currently before me, including (but not limited to), your comment to Witness B that you had been to LR’s house and had ‘big nights’. Indeed, this assertion seems inconsistent with the fact that, later in your submission, you acknowledge that there was an occasion in March 2019 when you saw LR and his partner on the street, and were then greeted by both of them and introduced to LR’s entourage, including Witness B.”
The Commissioner also accepted that the applicant had “well over 20 years of predominantly unblemished service”. However, it also noted a Region Commander’s Warning Notice on 6 May 2019 in respect of “other misconduct in which you engaged, less than 10 weeks prior to your recorded conversation with Witness B”. By that notice the applicant was warned that “further unsatisfactory conduct may result in removal from the NSW Police Force.”
The Notice gave the applicant 21 days to make submissions in relation to the proposed action namely that he be dismissed from the NSW Police Force.

DISCUSSION AND FINDINGS

The exposition of the law relating to s 11A (1) in Northern NSW Local Health Network v Heggie[1] provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this at [59]:
[1] [2013] NSWCA 255 (Heggie)
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan[2] the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous.
[2] [2003] NSWCA (24 September 2003).
In Irwin v Director-General of School Education (unreported, 18 June 1998), Geraghty J stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
The judgment in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd.[3] I see no reason why this is not such a case.
[3] [2001] NSWCC 167 (10 September 2001).
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.
There is a long line of authority emanating from the Presidential Unit of the Commission that the word “predominantly” in s 11A can be equated to “mainly”: McCarthy v Department of Corrective Services.[4] In See v The Commissioner of Police,[5] Neilson DCJ noted that the word “mainly” was used in the 1987 Act in other contexts. In those circumstances, “predominantly” should be given a different gloss. At [138], he stated:
“Having reviewed the dictionaries and these authorities, I prefer to gloss ‘predominantly’ with the adverb ‘chiefly’. To me it means much more than merely 51%, which is where ‘mainly’ usually leads. To predominate something must eclipse each other factor and all other factors.”
It is unlikely that the distinction between “mainly” and “chiefly” will cause practical difficulties in determining the issue in this case.
[4] [2010] NSWWCCPD 7 at [157].
[5] [2017] NSWDC 6 (3 February 2017).
As Hamad v Q Catering Limited[6] instructs medical evidence is important in determining whether an employer’s actions are the whole or predominant cause of a psychiatric injury. Thus, it is necessary to canvass the history and opinions of the psychiatrists relied on by the parties in this case.
[6] [2017] NSW WCCPD 6 (15 March 2017).

Dr Alan Doris

On 5 July 2022, the applicant saw Dr Alan Doris, a psychiatrist, at the request of the respondent’s solicitor by Telehealth. The doctor recorded a background history. It included the fact that the applicant had worked at North Sydney as a uniformed sergeant where he described being “micromanaged by his superior officer, being frequently criticised and generally badly treated.” Dr Doris also recorded that the applicant felt micromanaged whilst working at Info Link in Sydney.
The doctor took a history of the incident at Siren’s Nightclub in January 2019. He also recorded that the applicant’s marriage had broken down and that he had moved into separate accommodation. He recorded that on his return from Mexico in August 2019, the applicant had been approached by PSC officers, who told him that he was being investigated for perverting the course of justice. He continued:
“He describes feeling very uncomfortable by this and that his mental health deteriorated in that context. He said that while he was on suspension, he was informed he could not apply for leave nor make a WorkCover claim. He describes drinking alcohol to excess at that time and also having to deal with his very difficult family situation. He said ‘that 18 months killed me’.”
The doctor recorded that the applicant had resigned from the police force in February 2021, as he:
“just couldn’t handle it and wanted to move on with my life”.
In respect of his past psychiatric history, the applicant reported a mental health problem around 2017 when he was under increasing pressure in his job and there were also “difficulties in his marital relationship”. He recorded that at one stage he started crying in his general practitioner’s office, he was prescribed antidepressant medication but as it had significant adverse effects he did not continue with it. He saw a psychologist on a few occasions.
In respect of his current health, the applicant reported that he was not the person that he was. He was feeling angry much of the time and “can be easily tearful”. He had occasional nausea and vomiting and avoids contact with the police.
Dr Doris diagnosed an adjustment disorder with mixed anxiety and depression. He continued:
“The adjustment is to the challenges of a prolonged period of suspension and presumably investigation by the police and the breakdown of his marriage. He thought that the applicant’s condition was likely to improve over the next 6 to 12 months and ‘perhaps fully recover’. He thought that it was also possible that the applicant may have ‘some long-term residual symptoms’.”
He expressed the opinion that he would not be able to return to work for the New South Wales Police Force.
Dr Doris thought that both the applicant’s employment and the break-up of his marriage were significant factors in his psychological condition. He expressed the opinion that:
“The predominant cause of BJY’s psychological injury appears to be the process of suspension and investigation carried out by the New South Wales Police Force over a period of 18 months and ending with his resignation in February 2021. This would appear to be a type of action that falls within the description above.”

Dr Ashwinder Anand

Dr Anand saw the applicant by Telehealth on 24 October 2022 at the request of his solicitors. The doctor was qualified with a letter that set out the applicant’s exposure to the incidents that he referred to at greater length in his statement. It also referred to the disciplinary proceedings. The doctor recorded that:
“During the course of his employment at the New South Wales Police Force, BJY has attended to numerous domestic disputes, numerous deceased persons, numerous suicides, the scene of a suicide at St Leonard’s Railway Station of a female and having to assist with picking up the body parts, the scene of a domestic violence incident at Lane Cove where the male offender was armed with a spear and he was threatened and had to resolute it off (sic) to arrest him. In 1999, the hanging of a female at Lane Cove and a self-harm incident involving a male because of domestic violence incidents where he was exposed to body fluids and had to blood tests.”
Dr Anand recorded that in 2013 when the applicant undertook a [redacted] role “he was getting increasingly angry and irritable”. In 2016 his general practitioner “started him on antidepressant medication”. He recorded that the applicant was embarrassed as there was a considerable stigma attached to the complaining of any mental health issue. The doctor recorded that:
“He stated he had been suspended from the New South Wales Police Force pending an investigation for allegedly releasing information, but this charge was never proven”.
On the basis of this information, the doctor concluded that the applicant suffered PTSD as a result of exposure to the various incidents described in the course of his employment. He said this:
“In my opinion, BJY suffers from PTSD as a result of cumulative exposure to multiple traumatic incidents over the years with the New South Wales Police Force.”
Subsequently, he reiterated that the critical incidents that he had attended over the years were “an important source of mental health symptoms”. He continued:
“These critical incidents caused BJY’s emotional resources to become over-taxed, resulting in a spectrum of reactions from exhaustion to increased and unrelenting mental health symptomatology suggestive of PTSD.”
As Mr Hammond submitted there are several aspects of the evidence which lend weight to the diagnosis of PTSD. First, in the records produced to the Commission, there is a document entitled “PCL-5 Follow-Up” on the letterhead of Psychology Perspective, the psychology practice where the applicant has been treated. The document attempts to ascertain “how much” the patient was “bothered by” 20 different symptoms in the last month. At the conclusion of the document, the following words appear in bold typescript:
“Suggests further investigation and possible post-traumatic stress disorder”.
The test appears to be one of several which was undertaken at Psychology Perspective over the years. One can readily infer that the document records responses given by the applicant. It is also likely that it was completed by an employee of Psychology Perspective, although the name of the author is not stated and I was not referred to any evidence where the test was addressed by a psychologist or medical practitioner.
The clinical records of the Wamberal Surgery record that the applicant was treated spasmodically by doctors at that practice from 24 September 2015 to 23 September 2016 primarily for a skin disorder. On 15 December 2021, he returned to that practice and consulted Dr Colin Massie. The doctor recorded the following:
“Ex police
multiple traumatic incidents at work over the years
became depressed in a few years ago
started drinking
marriage breakdown followed
complaints at work because of behaviour inside and outside work
had been suffering from PTSD but did not get any help at the time
did not lodge WorkCover claim
seeing a psychologist now
I agree this is a work related PTSD and it was never managed and he should be able to lodge a retrospective workcover claim”
On 15 December 2021, Dr Massie referred the applicant back to Ms Wojciechowski of Psychology Perspective for a review of PTSD.
The clinical records of the Erina Fair Medical Centre record the applicant’s attendances at the surgery from 18 September 2005. They reflect the applicant’s attendances in the years when many of the incidents described in his statement occurred.
On 5 January 2015, Dr Mazurek recorded the incident on 27 November 2014, when the applicant jumped off a guardrail on the Harbour Bridge whilst saving a bridge jumper. The applicant complained of back pain. He was prescribed physio and Voltaren. There is no reference to any complaint relevant to the applicant’s mental health.
On 5 December 2017, the applicant presented to Dr Chim with urticaria. The doctor recorded that the applicant was:
“going through stress at the moment with work and marriage”.
The note records that the applicant “had not talked to anyone about the situation.”
The following also appears:
“teary in consult, works as a police officer
Feels he has no option for solving the problem, denies thoughts of self-harm”
The reason for the visit was stated by the doctor to be “depression” and “urticaria”.
On 1 March 2019, Dr Au diagnosed major depression, noting that the applicant was:
“post separation 12/12 ago
Has custody arrangement,
Low mood
Living alone
Find triggers, seeing elderly couple holding hands makes him sad
No suicidal intent
Says police have removed his gun although he says no self-harm ideation
Start sertraline and see psychologist”
On 15 October 2019, Dr Au recorded that the applicant had been the subject of an internal police investigation and had been suspended without pay. The doctor recorded that he had not been charged, that he said that it could go on for months and he has “no idea what this is about.” He was “stressed and anxious”. He was referred to Psychology Perspective.
On 10 November 2021, Dr Au recorded that the applicant was anxious and that he had resigned from the police force after police alleged that he was associating with a criminal. The applicant said that he was “also under stress going through Family Court” and that he had not filled the “script I provided 2 years ago for anxiety”. The doctor prescribed sertraline. The doctor recorded that the applicant “feels it should be workers comp”.
On 30 November 2021, the applicant again saw Dr Au in respect of his mental health. The doctor recorded that he complained of adverse side effects with sertraline.
On 17 October 2019, the applicant saw Susan Wojciechowski, a psychologist, on referral from Dr Au. She stated in a report of 18 October 2019 that the applicant was “severely depressed and severely stressed”. She stated that her observations were consistent with the scores on his DASS test. She recorded that the applicant disclosed his belief that his distress was due to:
“•       the decision by his wife to leave the marriage, which he had considered to be a stable and relatively happy relationship;
•         Upcoming litigation in relation to matrimonial property settlement, and
•       His suspension from his work pending investigation by Police Professional Standards Command and/or criminal investigation, including uncertainty about his future employment status and paranoia in relation to surveillance.”
Ms Wojciechowski recommended that BJY make every effort to avoid further stress. She stated that police interviews with the applicant:
“would be compromised by his psychological distress and I have recommended to BJY that he negotiate to delay these interviews until his condition has improved.”
The documents produced contain the record of several attendances by the applicant at Ms Wojciechowski’s practice. The hand written notes are difficult to decipher and it is probably unsafe to draw inferences relevant to causation from them.
While the above review of the clinical notes reveals a complaint of work-related depression , compounded by difficulties the applicant reported in his marriage, on 5 December 2017, there is no reference to any the multiple traumatic incidents pleaded by the applicant or to a diagnosis of PTSD until it was raised by the applicant and diagnosed by Dr Massie at the consultation of 15 December 2021. As Mr Hammond submitted there is also support in Ms Walters statement for the applicant suffering depression in the period leading up August 218 but, on her account, that primarily related to his family circumstances.

In my opinion, Dr Anand’s impression that the applicant has PTSD as a result of “multiple traumatic events”’ is difficult to accept. It is inconsistent with the contemporaneous evidence. It does not implicate the breakdown of the applicant’s marriage in the development of his psychological illness and it addresses his suspension and the investigation in perfunctory manner. When the applicant saw Dr Au in 2019, these two matters were recorded as the factors which were relevant to his psychological illness. When, he saw Ms Wojciechowski on 15 October 2019, he identified these matters as the reasons for being severely depressed. Conversely, there is no evidence that the applicant sought medical treatment following any of the traumatic events recorded in his statement or had the need to obtain medical treatment.
The importance of the suspension and the investigation is highlighted in the history which the applicant gave Dr Doris. After recording that he believed that his movements were being monitored and listening devices placed in his house, Dr Doris recorded that:
“He described feeling very uncomfortable by this and that his mental health deteriorated in this context.”
After describing, the effect the suspension and having to deal with his “difficult family situation”, Dr Doris recorded that the applicant said “that 18 months killed me”
The history of the applicant’s mental health deteriorating in the context of fear of being monitored is consistent with Ms Wojciechowski’s history that a cause of his condition was “paranoid in relation to surveillance.”
While I accept, that psychiatric conditions, including PTSD, are often of delayed onset, diagnosis and causation are always partially reliant on history. I doubt whether a doctor can accurately assess the causes of the applicant’s psychological injury without confronting the matters referred to by Ms Wojciechowski and Dr Au in 2019 . The effect of that period on the applicant’s psychological health is emphasised by the dramatic account recorded by Dr Doris that the “18 months killed me”’. It cannot simply be subsumed as one of many cumulative events which resulted in psychiatric injury in this case.
On the basis of that discussion, I accept the opinion of Dr Doris that the allegations of misconduct, suspension from duty, and the subsequent disciplinary proceedings were the predominant causes of the applicant’s psychological injury as it developed in 2019. It is more consistent with contemporaneous medical and lay evidence than the opinion of Dr Anand. It follows that I also accept his diagnosis.
The initial step in the train of events that led to the issue of the s 181D Notice and, ultimately, the applicant’s resignation, is probably his apprehension by PSC officers for drug testing on his return from overseas on 14 August 2019. The disciplinary actions appear to fall into two parts. First, the allegations of misconduct and, secondly the Commissioner’s actions with respect to dismissal. As much of the material relating to these matters is not in evidence, the dates that are relevant to the disciplinary matters must be gleaned from the applicant’s evidence and the s181D Notice.
The applicant was issued with a suspension notice 1 August 2019. On 17 October 2019, he was issued with a Direction to attend PSC to be interviewed in connection with the allegation that he assisted LR. As he declined to be interviewed, the investigation, was undertaken and a show cause notice issued on 16 December 2019. The applicant’s solicitor responded to the notice on 10 March 2020. The document headed “Officer Complaints Summary” record that four of five allegations, which appear similar to the allegations in the s181D, Notice were “sustained”, although I was unable to find any other evidence on this point and I am not able to glean from the submissions whether my interpretation of the document is correct..
The next relevant date appears to be the issue of the s 181D Notice, the applicant’s response and his resignation. The applicant remained suspended until that date.
While I accept that the applicant may have suffered depression related to his employment as recorded by Dr Au in 2017, in my opinion the predominant cause of his psychological injury were the actions of the respondent with respect to discipline and dismissal commencing on 14 August 2019.

Reasonableness

Section 11A(1) of the 1987 Act requires a determination of whether the employer’s actions are reasonable both in form and in substance. The concept of reasonableness must depend on all the circumstances of the case. It cannot be given a rigid and unvaried content. To adopt the language of Gageler J, in CPCF v Minister for Immigration and Border Protection,[7] “Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content”. His Honour was dealing with a case involving the detaining of a person on the high seas and removing him to India. Thus, the source and content of the duty to provide procedural fairness is quite different. However, the language demonstrates the flexibility of the content of the obligation.
[7] (2015) 255 CLR 514; [2015] HCA 1 at [367]
While Mr Stockley submitted that the respondent did not have to prove the truth of the allegations, it is evident from a review of the s 181D Notice that there was ample evidence on which the respondent could have sustained the allegations of misconduct against the applicant. Equally, there is ample evidence on which the Commissioner could have reached the preliminary findings which are set out in the s 181D Notice, including the finding relating to the reliability of the applicant’s responses. The excerpts of the applicant’s conversation with Witness B on 14 May 2019, even allowing for inaccuracies raised by the applicant’s solicitor, is plausible evidence supporting several of the allegations. The answers cast doubt on the applicant’s reliability.
As the respondent argued the allegations against the applicant were extremely serious. It is difficult to envisage how the applicant could be employed in an active policing role during the investigation without putting at risk the respondent’s operations. If the allegations were sustained, it is difficult to envisage how he could return to such a role.
It is true, as the applicant argued, there were flaws in the disciplinary process. It extended from 17 October 2019 until the applicant’s resignation on 19 February 2021. Notably, more than four months elapsed from the date of the Notice to resignation without the Commissioner determining whether the applicant should continue as a police officer. This delay is unexplained.
While I was not taken to the evidence, the applicant says that when he was initially detained, he was not informed of the particulars of the allegations against him, although it is evident that some particulars were provided at the time of the direction to attend for an interview. The applicant also states and the respondent accepts that there was an inaccuracy in the transcript of the covert conversation which I have discussed above. It was accepted that this is the case.
It is, of course, necessary to consider the process as a whole in reaching a conclusion as to reasonableness. In the oft quoted passage from Department of Education & Training v Sinclair,[8] Spigelman CJ at [97] said this:
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.”
[8] 2005] NSWCA 465 (20 December 2005) (Sinclair),
Notwithstanding, the flaws in the process, I have reached the conclusion that it was reasonable action with respect to discipline or dismissal. The gravity of the allegations and their impact on the applicant and the respondent’s operations almost certainly mean that the process would be a long one. The applicant was entitled to respond to the allegations of misconduct and to the s181D Notice. On the other hand, the respondent had to balance both the rights of the applicant and the need to ensure that its operations, particularly the prosecution of LR, which had not concluded, was not tainted by the applicant’s actions. These are complex matters that involve the consideration of a great deal of evidence collected over several months prior to the applicant’s suspension. The nature of the allegations necessitated that the applicant be suspended from an active policing role. In my opinion, the respondent has proven that its actions with respect to discipline and dismissal were reasonable.
I make an award for the respondent.

[2023] NSWPIC 535

13 October 2023