REVIEW DIVISION

REVIEW s.146(1)(l) TERMINATION OF APPOINTMENT— Applicant terminated under s.28(4) while a probationary constable, after suitability inquiry — Delegate found he did not meet the requirements for confirmation in VPM to hold “current OSTT qualification” and driving authority — Applicant prevented from undertaking OSTT or driving training after his “OSTT qualification was suspended” and s.126(2) interim action (transfer to non-operational duties) ordered  following an operational incident on 23 June 2020 — investigated by Professional Standards Command re possible criminal charge — awaiting OPP advice on whether evidence supports charge — probation extended by 12 months.

ACT and POLICIES: Victoria Police Act 2013 (ss. 27,28, Part 7), VPM Instruction: Probationary Constables; VPM Procedures and Guidelines: Foundation Training Constable and Protective Services Officer; VPM OSTT Qualifications; VPM Complaint Management and Investigations. 

NATURAL JUSTICE — nature of decision on probation — O’Rourke v Miller discussed

PUBLIC INTEREST considered (community confidence; consistency and predictability of application of policies; procedural fairness; delay) and INTERESTS OF THE APPLICANT

BOARD finds decision to terminate harsh, unjust and unreasonable because:

a)         Delegate terminated Applicant based on an assumption that the incident was serious and  established he was unsuitable for appointment, but this was not adequately supported by  evidence (Briginshaw, Karakatsanis applied);

b)         Applicant not afforded natural justice in relation to the substantial operative reason for the  decision (his safety and work performance in the incident);

c)         Lack of clarity in VPM on “OSTT qualified” cf. “OSTT suspended” and requirements for s.28  confirmation;

d)          “PSC clearance” requirement in ‘VPM Instruction: Probationary Constables’ provides for PSC  to assess extant Part 7 allegations and to clear Applicant for confirmation, which they did;

e)         Clause 7.1.1 of VPM provides pathway where extant criminal allegations; Part 7 has appropriate options if a criminal or discipline charge is proven, after a proper process and consideration of relevant matters;

d)         Suspension is not counted in probation period; perverse outcome if a lesser form of interim action leads to (in effect) automatic termination by delay; 

e)         Excessive delay and harm to Applicant contribute to the Board’s assessment of harshness.

ORDER Section 154 — Board determines to set aside the decision to terminate the Applicant and to instead determine to not terminate the Applicant.

Order

Pursuant to section 154(3)(b)(i) of the Victoria Police Act 2013, the decision of Assistant Commissioner Casey to terminate the appointment of Constable Joel OORLOFF pursuant to section 28(4) is set aside, and in substitution for that decision, the Board determines to not terminate the appointment of Constable Joel OORLOFF.