REVIEW: TO NOT PROMOTE CONSTABLE IN SAME POSITION (‘in situ’) s.146(1)(d) — Applicant found “ineligible” for promotion due to “active PSC enquiry” re alleged duty failure at a family violence incident in May 2019.
ACT and POLICIES: Victoria Police Act 2013 (s.31, Part 7), Regulation 11; Enterprise Agreement cl. 64.5 and Victoria Police Manual (VPMG In Situ Promotion; VPM Instruction 306-2 Transfer and promotion (sworn) (under review); VPM Performance Development; VPM Instruction 306-7 Confirmation of Promotion) considered.
Enterprise Agreement does not set eligibility requirements for promotion (not in power); VPMG is guidance, not binding instruction, uncertain in meaning and application — Chief Commissioner’s Instruction 306-2 Promotion and Transfer ( “under review”) is in force; provides a constable is ineligible for in situ promotion if “charged” with breach of discipline (Applicant has not been charged) — VPMG can be read to be consistent with the Instruction if 5.2 read as a reference to a pending formal “discipline inquiry” after charge (cf. enquiry). — Other parts of VPM (probation on promotion, salary progression, discipline inquiry) provide for natural justice (right to be heard, consideration of all facts and circumstances) before denial of a benefit — Here, under reading of VPMG, no “assessment” made of suitability or consideration of matters; rather, mere existence of a PSC file treated as a bar to eligibility — confirmation of promotion after probation (s32) and section 132 (discipline outcomes) provide appropriate options if a breach of discipline is ultimately proven, after a proper process and consideration of relevant matters.
PUBLIC INTEREST considered (community confidence; consistency of application of policies; procedural fairness; delay) and INTERESTS OF THE APPLICANT considered (financial and reputational harms, impact of delay) —possibility backpay if “cleared” is uncertain and would not remedy unfairness in the current circumstances.
Board has broad discretion in s. 154 — Board determines to set aside the decision to refuse promotion in the same position, and to promote the Applicant to Senior Constable in the same position with effect from 5 May 2021.
Order
Pursuant to section 154(2)(b) of the Victoria Police Act 2013, the decision of Superintendent Draper-Schultheiss to not promote the Applicant Constable Nguyen (42663) to senior constable in the same position is set aside, and in substitution for that decision, the Board determines to promote Constable Nguyen to senior constable in the same position, with effect from 5 May 2021.
These link(s) will open in a new browser window.
You may need Adobe® Acrobat® Reader or Libre Office to view the document(s) on this page.