Post the incident, he was put on a performance management plan, warned that he could possibly be dismissed if the behaviour continued and attended several respectful and inclusive workplace training programs. 

The first incident

The senior constable was demoted from sergeant a year earlier due to a sexual harassment incident. A female police officer alleged as she was to drive a doctor to another town, the sergeant said, “well, if he’s not a gynaecologist, he’ll be a gynaecologist by the time he gets to Cowra with you.”

Multiple coffee attempts

The senior constable of 23 years’ service was based at Orange Police Station. The state’s police commissioner sacked him after his colleague complained that he kept asking her, “will you go out with me?” and “will you have coffee with me?”. 

The senior constable allegedly asked her if he could message her on her personal phone number. When she said “no”, the senior constable reportedly said, “you can message me anytime.”

In addition, when the two constables were moving an abandoned mattress in the police station, he said, “I should trip you over, so you fall onto this mattress.”

In response to the allegations, the constable admitted to asking his colleague out “maybe twice” for coffee, that it was an attempt to be friends and denied commenting on the mattress.

He believed he wasn’t disrespectful to his colleague or engaged in conduct that could “properly be construed as sexual harassment”. 

As a mitigating factor, the constable noted he may have autism spectrum disorder (ASD) and might “misread visual and verbal communication cues” and be “socially awkward”, yet it wasn’t formally diagnosed.

The findings

The police commissioner said he was “not persuaded that any medical condition caused you to conduct yourself in the manner set out above,” noting there was no medical evidence to support the ASD claim. 

Further, “the guidelines specifically state “repeated unwanted requests to go out on dates when the person has refused similar invitations before” is an example of sexual harassment. I find your insistence to the contrary demonstrates a concerning lack of insight into your behaviour,” the commissioner said.

The senior constable received a formal diagnosis of ASD after his employment was terminated. His psychiatrist said he had “difficulty in his reading of subtle social cues” and that his mild condition was relevant to how he interacted with colleagues.

Commissioner Murphy rejected the unfair dismissal application on the basis: 

  • the senior constable’s response to the allegation changed over time
  • the colleague and witnesses were deemed credible without detriment to the senior constable’s case and had nothing to gain by making up the allegations, and
  • the evidence “falls short of establishing that the condition caused him to sexually harass after he had previously been demoted and warned for sexually harassing another fellow police officer who was junior to him at the time”.

Commissioner Murphy said the senior constable had a duty to provide a safe workplace for all workers engaged in the NSWPF.

“Workers, such as (his colleague), have the right to come to work and do their job without being subjected to the type of harassment from a work colleague”, he said.

Mounce-Stephens v Commissioner of Police [2022] NSWIRComm 1008 (25 February 2022)