Officer argues there was 'no procedural fairness' in the investigation against him
The Supreme Court of Victoria recently dealt with a case involving a police officer's dismissal and the subsequent review of that decision. The case highlighted important aspects of disciplinary procedures and the powers of those conducting such inquiries.
The case centred around a detective leading senior constable who was charged with a breach of discipline under the Victoria Police Act 2013.
The charge alleged that the worker had engaged in "disgraceful or improper conduct" over a period of several years. This conduct included participating in inappropriate group chats, sharing sensitive police information, and making derogatory comments about colleagues and members of the public.
Background of the case
The original charge, laid on 23 January 2023, detailed two parts to the worker's conduct: conversations captured as text messages between 20 May 2016 and September 2019, and conversations captured as part of an Independent Broad-based Anti-corruption Commission (IBAC) Investigation between 13 January 2021 and 20 April 2021.
During the disciplinary inquiry, the Disciplinary Inquiry Officer (DIO) amended the charge to extend the period of alleged misconduct. Specifically, the DIO changed the date range in the first part of the charge from "20 May 2016 and September 2019" to "28 October 2015 and 15 January 2020".
This amendment became a key point of contention in the subsequent legal proceedings.
The power of inquiry officers
The court examined whether the DIO had the authority to amend the charge. It was noted that while the Victoria Police Act does not explicitly grant this power, the Interpretation of Legislation Act 1984 could potentially allow for such amendments. However, the court ultimately ruled that the DIO did not have the power to amend the charge.
The court emphasised the distinction between those authorised to lay charges and those authorised to conduct inquiries. It was determined that the power to amend charges rested with the Chief Commissioner or the person authorised to lay the charge initially, not with the inquiry officer.
This distinction is crucial for maintaining the integrity of the disciplinary process. The court noted:
"There is a clear demarcation between the power to lay a charge and the power to inquire into the charge. This demarcation is necessary because s 127(1) provides that a precondition to the laying of a charge by [the Chief Commissioner] or a person authorised under s 130(1)(a) is a reasonable belief that [a police officer] the subject of the charge has committed a breach of discipline."
The importance of procedural fairness
The court's decision highlighted the importance of procedural fairness in disciplinary processes. By ruling that the DIO did not have the power to amend charges, the court emphasised the need for clear separation between the roles of prosecutor and adjudicator in disciplinary proceedings.
This separation is vital for ensuring that disciplinary processes are fair and impartial. It prevents the appearance of bias and ensures that the person conducting the inquiry is not influenced by their own amendments to the charges.
Another significant aspect of the case was the discussion around the admissibility of evidence obtained through a potentially invalid search warrant. On 4 May 2020, the worker's mobile phone and other devices were seized pursuant to a search warrant executed as part of a criminal investigation. The Police Registration and Services Board (PRSB) had considered whether this evidence could be admitted under section 138 of the Evidence Act 2008.
The court found that the PRSB was within its rights to consider this question, stating:
"If the effect of the invalidity of the warrant was such that the material obtained pursuant to it could not properly have been admitted into evidence, this would have supported a finding by [the Board] that the dismissal was harsh, unjust or unreasonable. However, as s 138 of the Evidence Act provided a legitimate basis for the material obtained pursuant to the warrant to be admitted into evidence, it was appropriate for [the Board] to address for itself the question of whether that material should be admitted into evidence."
Implications for HR professionals
This case serves as a reminder of the complexities involved in workplace disciplinary procedures, particularly in public service organisations. HR professionals should take note of several key points:
- Clear delineation of roles: Ensure that there is a clear separation between those who lay charges or make allegations and those who investigate or adjudicate.
- Procedural fairness: Maintain strict adherence to procedural fairness throughout disciplinary processes.
- Evidence admissibility: Be aware of the rules surrounding the admissibility of evidence, especially when obtained through potentially contentious means.
- Power to amend charges: Understand the limitations on who can amend charges or allegations once they have been formally laid.
The court’s conclusion
In concluding the case, the court emphasised the importance of following proper procedures in disciplinary matters. The court stated:
"[The DIO's] failure to comply with a substantive statutory precondition to the exercise of the power of dismissal has the consequence that the dismissal was unjust."
This finding underscores the need for HR professionals to ensure that all disciplinary actions are carried out in strict accordance with relevant laws and regulations.
The court further noted:
"[The Board] erred in concluding that the dismissal decision was not harsh, unjust or unreasonable. This error undermines the essential legal basis of [the Board's] decision which was to affirm [the DIO's] dismissal decision on the basis that the decision was not harsh, unjust or unreasonable."
This highlights the importance of reviewing bodies to carefully consider all aspects of a disciplinary decision, including procedural matters.
Finally, the court ordered:
"[The Board's] decision and orders will be quashed and [the worker's] application under s 146(1)(m) for a review of the dismissal decision will be remitted for rehearing."
This outcome emphasises that even when misconduct is serious, procedural errors can lead to the overturning of disciplinary decisions. HR professionals must remain vigilant in ensuring that all disciplinary processes are conducted fairly and in accordance with the law.
