Commissioner of Police v Zisopoulos [2019] NSWIRComm 1073

We’ve had the pleasure of working with Sergeant Zisopoulos in seeking reinstatement for a number of years now.  Today, the Full Bench of the Industrial Commission delivered its decision in the Appeal lodged by the Commissioner of Police from the order to reinstate Sergeant Zisopoulos made by Commissioner Murphy on 7 March 2018.  In summary, the history of this matter is:

  • Sergeant Zisopoulos was, in 2015, a police officer with over 15 years’ experience with an exemplary record, having been recognised on several occasions by certificates of appreciation and medals.
  • On 16 April 2015, Sergeant Zisopoulos was randomly selected for drug testing.  He identified to the testing officers that he had been taking over-the-counter and prescription medications.  This led to a non-negative result for his urine sample.
  • He was required to submit for hair testing.  Further testing of the urine sample confirmed the non-negative result.  No illicit substances were detected. 
  • On 16 May 2015, Sergeant Zisopoulos was suspended from duties. 
  • Sergeant Zisopoulos was served with a Section 181D(3)(a) Notice on 30 March 2016 which he responded to on 6 June 2016.
  • On 19 December 2016, Sergeant Zisopoulos was removed from the Police Force. 
  • Sergeant Zisopoulos commenced proceedings in the Industrial Relations Commission for unfair dismissal.  Following the hearing of his matter, Commissioner Murphy reinstated Sergeant Zisopoulos.
  • On 15 March 2018, the Commissioner of Police appealed Commissioner Murphy’s decision.

The Full Bench of the Industrial Relations Commission granted leave for three of the grounds for appeal but ultimately dismissed the appeal. 

Two of the grounds for appeal were that Commissioner Murphy fundamentally misapplied the correct test under section 181F(2) of the Police Act 1990 (NSW) and did not properly apply the principles established in the decision of Tredinnick v Commissioner of Police [2016] NSWIRComm 226.  The Full Bench found there was nothing in Commissioner Murphy’s reasons to support these propositions.

The Full Bench identified the importance for convincing proof on the balance of probabilities, noting the allegations against made against Sergeant Zisopoulos were of criminal conduct of a serving police officer.  The Full Bench held that Commissioner Murphy was satisfied that the evidence adduced at trial by Sergeant Zisopoulos established flaws in the reasoning for the termination of his employment as a serving police officer.

The other ground of appeal for which leave was granted was the ground that:

“The Commissioner erred in not having any regard, or any proper regard to the public interest and the fact that the Appellant made the decision to remove the Respondent as required by s 181F(3) of the Police Act.” (at [32]).

The Full Bench found that there could be little doubt that Commissioner Murphy was alert to the importance of the public interest and held that public interest cannot be used to bolster unequivocal evidence.  To permit that to happen is to completely disregard the interests of the officer, as required by section 181F(3)(b) and to overlook the nature of the legislation under consideration (at [36]).  

The Full Bench held no error in Commissioner Murphy’s application of section 181F(3)(b) and importantly highlighted that ‘each case requires an assessment of all of the evidence in the context of the particular proceeding and the issues raised by the parties.’

The appellant’s submissions that focused on Sergeant Zisopoulos’ failure to lead evidence of actual exposure and the attack of Commissioner Murphy’s lack of findings about actual exposure were, the Full Bench, said demonstrates a misconception in the challenge of the Commissioner of Police.  The Full Bench noted Sergeant Zisopoulos led sufficient evidence to cast doubt on the factual findings on which the decision to terminate his employment was based.  Once that is done, it falls to the Commissioner to prove the requisite standard that Sergeant Zisopoulos voluntarily ingested prohibited drugs. 

We are very pleased to have been able to assist Sergeant Zisopoulos in his fight for reinstatement.  The full decision is available to read here.

Nicole Dunn
Legal Practitioner Director
Nicole Dunn Lawyers