August 2002 Volume 83 Number 8 "serving the protectors"
A victory for justice
By Brett Williams

Few would ever expect a police department to deny anyone natural justice. But when SAPOL took exactly that line with some of its own officers, the Police Association came straight to their rescue.

Nine SA police officers had to fight both their commissioner and his HR director to win a long, gruelling battle for justice this year. And, not until it ended in the Supreme Court in February, could the officers revel in a legal and, to some, moral victory.

For these justice-seeking cops, however, feelings of joy came hard. All of them – and their families – had suffered needlessly, and so felt “jaded” by their encounter.

It began last year, when nine vacant detective-sergeant positions appeared in the Police Gazette. Derek Wright, then a detective senior constable attached to Sturt CIB, applied for one of the jobs. In mid-May – after an interview – he received official word that he had won a nomination for one of the positions at the Sturt LSA.

By late May, however, Wright, then 42, learned that an unsuccessful candidate had lodged a grievance against his nomination. And, by late June, several other formal notices of grievance had followed. But, as such notices were common on the applicant-selection scene in SAPOL, Wright could see little about which to be concerned.

As all successful nominees do, he expected legitimate challenges. But he never expected the bombshell allegation that would soon follow: that he had cheated!

So, when his boss summoned him to a meeting in July to discuss “a minor aspect” of his application, Wright was destined for a shock.

He had understood that this pre-arranged meeting would include the HR department’s acting grievance officer. But the gathering of three soon came to involve a fourth participant.

“I was taken into another office,” says Wright, “and, suddenly, I’m confronted by a superintendent and told to sit down. He introduces himself as a member of the Human Resource Branch, and tells me he’s going to interview me.”

The superintendent, Ken Green, ordered Wright – who had no representation – to answer his questions and produce any documents he required. He then launched into his interview, which he recorded on an audio tape.

During his questioning, Green produced copies of Wright’s private notes; those he had used to prepare himself for his job interview. “I understood then,” says Wright, “that someone had obviously been into my filing cabinet and taken them.”

The intrusion left Wright feeling violated. “To find out that someone had been through my filing cabinet, looked at everything I had done, and then sought to use it to advantage, was a shock,” he says. “It was bizarre.”

But Green – acting at the behest of HR director, Peter Menzies – took this investigation far beyond a non-consensual search of Wright’s filing cabinet and desk. It would later emerge that he had arranged for a security expert to retrieve Wright’s notes from the police computer network.

Meanwhile, Green continued to question Wright but, at the same time, withheld from him any specific allegations of cheating. And, without any such allegation put to him, Wright had no chance to articulate a clear defence.

He at least gathered from the interrogation that he stood accused of gaining access to set questions before his job interview.

When the interrogation ended, Wright recounts, Green continued to question him – but with the audio tape switched off.

“Again, that was bizarre,” says Wright. “I’m obliged at law to conduct video and audio interviews under rules and procedures. Yet, this one finishes, and (he asks): ‘Isn’t it unusual that you’ve been acting in this (sergeant) position for so long?’

“I thought it was untoward. I really did. I felt very uncomfortable with the way it was conducted, and the way I was taken by surprise.”

Three days later, a desperate Wright wrote to Green with a request that he spell out any allegations. He also sent him a copy of the six pages of prep notes he had compiled for his interview.

And, over the next two months, Wright would endlessly call and e-mail Menzies seeking at least some explanation of his plight. He never received a response, from either Menzies or Green. Nor did he receive either a taped copy or transcript of the interrogation. He came to think of the HR branch as “a wall of silence”.

But, finally, in late August, he received an e-mail message from Menzies. In it, Menzies wrote of receiving the request Wright had written to Green. He also made clear, however, that he would not speak to Wright personally.

“I felt very uncomfortable with the way it was conducted, and the way I was taken by surprise.”

Then, on September 4, a second bombshell struck. Wright received written notice that Menzies had cancelled his nomination, as well as those of the eight other nominees. The notice also outlined the intention of Commissioner Mal Hyde to readvertise all nine positions.

No one from the HR branch interviewed any officer – apart from Wright – either before or after Menzies acted. Nor did the branch allow any of the nine a chance to comment, at any time, on Menzies’ decision. On September 5, the detective-sergeant positions appeared advertised afresh in the Police Gazette.

Hyde had backed his HR director’s decision. And, in quashing the nominations, Menzies had, in any case, acted – in a legal sense – as Hyde’s delegate.

But what reason did Menzies have to quash the nominations? He claimed “a serious irregularity had occurred in the selection process”. He also claimed to believe that some among the other eight officers “may have gained access” to others’ job applications.

The news hit Wright “like a brick”. He knew he was innocent of any wrongdoing, but felt he had somehow cost his eight colleagues their chances for promotion.

“That was probably the lowest point (of the whole experience),” says Wright. “They were eight people whom I respect, because I’ve worked with some of them over many years.”

So, again, Wright began to call and e-mail Menzies with requests for, and in the hope of, receiving any information. But, again, his requests went unanswered – until September 17, when Menzies sent him an e-mail message. In this one, he made clear to Wright that he would give no explanation of his decision to quash the nominations.

Others among the eight went up against the same HR branch wall of silence. “It was quite frustrating,” says Detective Sergeant Kym Hand, then stationed at Millicent. “It was hard to be angry. I didn’t know what to be angry at, because we didn’t know why (our nominations were quashed). I think they have an obligation to say why – at least in part.”

In Hand’s case, the continuing uncertainty caused not only him great upheaval, but also his family. “I made the decision to transfer out,” he says. “It had become more difficult because of the uncertainty caused to the family, as to where we would be living. I decided to end that by making the move myself.

“The impact on coppers in the country, for things like this, is sometimes greater. You’ve got to pack up your whole life.”

Wright says all nine officers simply wanted reasons but were “just up against a brick wall”. “It was not unreasonable to expect that they might be more forthcoming,” he says, “in terms of saying: ‘This was the problem’. Their lack of information just left us all wondering.”

Intensely frustrated, all the officers would come to describe Menzies’ order as one of which no reasonable decision-maker could ever have been capable.

Meanwhile, Wright applied for one of the readvertised positions and won another interview. Although scheduled for January 30 this year, it would never take place.

“I assumed there would be some basis to it (the case), and I was looking for that. It took me a while to work out that there was no basis...”

With no sign that Menzies’ hard-line stand would change, the officers decided to turn to their union, the Police Association of South Australia. Once association secretary, Andy Dunn, had gathered information about Menzies’ actions, he, too, would call them bizarre.

“The entire conduct of the matter was unsatisfactory,” he says. “And, of course, in a purely legal sense, it lacked any form of natural justice for all the members involved.”

But, at the same time, Dunn was not in the least surprised by the events that had unfolded. He knew SAPOL to often fail to produce “fair human-resource outcomes”.

So, gravely concerned by what it saw as a denial of natural justice, the association tried for months to resolve the issue with SAPOL through dialogue. Says Dunn: “PASA made many representations to SAPOL in regard to this matter. It was very much an action of last resort to take it to the Supreme Court.”

And that last-resort action began when the association engaged industrial relations lawyer, Stephen Lieschke, in September last year. Lieschke could see instantly that the nine officers had suffered a gross injustice.

“I assumed there would be some basis to it (the case),” he says, “and I was looking for that. It took me a while to work out that there was no basis, other than just the barest of suspicions.

“They had their appointments quashed on the basis of something a first-year law student would be embarrassed to stand next to. It was just mind-boggling.”

Lieschke brought his now nine police clients together for an initial meeting in his boardroom. He saw, there, the emotional strain on them. “These were very concerned senior members, who had a lot of long faces among them,” he recalls.

“They were long-serving, highly dedicated officers, who were getting stressed, and (concerned about) their reputations. It was just appalling.”

Lieschke had read the officers’ outward signs of inner-turmoil rightly. Not only were Hand’s wife and children drawn into their loved one’s trauma, but so too, of course, were many others’ families.

Wright’s wife, Karen, saw obvious changes in him, and was angered by the whole process. She simply could not understand the poor treatment her husband of 20-plus years had had to endure.

Even Wright’s teenage son once had to point out to his father during an argument that he was “being grossly unfair on him”.

“My behaviour at home did change for the worse,” Wright concedes. “I look back now and wonder if the best option would have been to walk away from the whole thing. For the first time in 22 years, I did consider other career options.”

“I think they realized they were wrong. They could see the writing on the wall and, at that point, they were on a hiding to nothing to continue on.”

But with the winning action Lieschke was about to institute, no one would need to pursue other options. By late January, he had studied well the particulars of the case and sought advice from a senior barrister. He came to believe the Supreme Court would “take a pretty dim view of what had happened”.

So, on behalf of the nine officers, Lieschke sought Supreme Court orders to have the Menzies decision quashed and the nominations reinstated. He also sought a stay against the recommencement of the selection process.

Despite vigorous opposition from SAPOL “right up until the end”, the case never went to trial. At the second of two hearings, Hyde consented to the Supreme Court making an order to quash Menzies’ decision.

Says Lieschke: “Once they were confronted with all our affidavits and documents, and reconsidered their position, I think they realized they were wrong. They could see the writing on the wall and, at that point, they were on a hiding to nothing to continue on. It was a victory for justice.”

Lieschke asserts that the Police Association could never have allowed the case to go unchallenged. “We would have been giving an incredible green light to the Commissioner to do what he likes whenever someone lodges a grievance,” he says. “That, clearly, was unsatisfactory.

“It was unfortunate that the Commissioner made such a bad decision, but we were compelled to change it.”

Lieschke insists that, to avoid the whole traumatic affair, the HR branch should simply have “been up-front” by putting its suspicion to Wright, in full, from the start. Only then, he says, could anyone properly analyse any suggestion of cheating.

“Derek produced his preparation notes,” says Lieschke, “and the (job) interview questions didn’t match up with the material he had prepared.

“At that point, in the absence of any other evidence, one would have thought they (the HR branch) would drop it. But, no, unperturbed by the lack of evidence, they continued on.”

Of a raft of questions the Police Journal had for Menzies last month, he was willing only to answer a few. “…I should have given them (the nine officers) every opportunity to put to me their position before I made that decision,” he concedes. “I accept that they were denied natural justice.”

So, in light of Menzies’ acceptance of his error, does he intend to apologize to any or all of the nine officers? “I regret that members of SAPOL were inconvenienced,” he says, “but, as far as an apology is concerned, I think that’s probably the wrong word.

“…I judged that my decision was the correct one. It was subsequently overturned, and I accept that.”

Only now does Menzies say he is “quite happy to discuss the issue” with any of the nine officers. He also says that, for his error, he does not expect to face disciplinary action.

But Dunn, as Police Association secretary, does not support disipline as a remedy in any case. He says SAPOL should simply retrain those responsible for the errors.

“I want to know,” he says, “that they won’t make the same or a similar error in the future. That an action had to be taken in the Supreme Court, to gain what is only seen as one’s right, is a sad indictment on the employer.”

In an interview with the Police Journal last month, Green would not answer specific questions. He instead referred to, and read from, a Police Complaints Authority report, which he insists cleared him of any wrongdoing.

For Wright and his eight colleagues, who now all enjoy detective-sergeant positions, life must go on. “I think I speak for all of us,” says Wright, “when I say that we’re all left a bit cold by the whole thing.”

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