9. Alternative Resolution Options & Apologies

This chapter only relates to matters classified as:

  • Complaint 1, ED1 or IRM1 (handled in Districts); or
  • Complaint 2, ED2 or IRM2 (mostly handled in Districts).

9.1. Managerial Resolution (Level 1 only)

Level 1 matters are intended to be resolved promptly and are considered best handled by members’ line supervisors or managers.  Both are empowered to resolve these matters.  Managerial resolution may include informal resolution, formal resolution and / or Continuing Professional Development (CPD).

Supervisors and managers must maintain a running sheet and record the details of the managerial resolution on BlueTeam.

9.2. Informal Resolution (Level 1 and Level 2 only)

In some circumstances, where formal resolution is not available or not considered necessary, a level 1 or level 2 matter can be resolved through informal resolution.  Informal resolution is a type of conciliation.  The complainant would need to agree to this course of action – and it might involve an apology. These matters must still be registered on BlueTeam and appropriate notes made against the entry or on the running sheet.

Informal resolution is suitable for minor matters where no section 43(3) action is envisaged.  It circumvents the requirement for formal inquiries into a complaint and therefore also avoids the need for any official determination about whether the Code of Conduct has been breached. It is only suitable for Complaint 1 and 2, IRM1 and 2, ED1 and 2 matters.

The informal resolution process involves the:

  1. complaint being received by a member
  2. matter being registered on BlueTeam and routed to a supervisor / manager
  3. supervisor / manager assessing the matter and considering the conduct and service history of the subject officer
  4. supervisor / manager determining if the matter is appropriate for informal resolution
    If in any doubt a supervisor must consult a manager prior to any action being taken; and a manager must consult their commander or Professional Standards prior to any action being taken.
  5. supervisor / manager speaking with the complainant and negotiating an agreed resolution. The resolution must, in all instances, involve the subject officer being spoken with.  The complainant must be satisfied that their complaint / concerns will be addressed appropriately – without this, informal resolution cannot occur.
  6. complaint / concerns being discussed with the subject officer and their account of the circumstances noted
  7. complainant being advised that the subject officer has been spoken with
  8. supervisor / manager updating BlueTeam and ensuring sufficient notes are made in relation to the informal resolution
  9. matter being routed from the manager to Professional Standards
  10. Professional Standards closing the matter as ‘informally resolved’.

If the subject officer disagrees with the facts stated by the complainant then consideration must be given to whether or not the matter can continue to be informally resolved on the basis of ‘agreeing to disagree’.  If not, where it is:

  • a level 1 matter, the points of disagreement are to be noted; or
  • a level 2 matter, the points of disagreement are to be noted and consideration is to be given by the supervisor / manager to redirecting it for a formal inquiry. The subject officer is to be advised if the matter is redirected.

Example Level 1

  • Mr R attends Launceston Police Station and makes a complaint to Constable D at the front counter.
  • The complaint is against a male officer, Senior Constable M who attended his home at 3am that morning for a curfew check on Mr R’s daughter. The complaint is that Senior Constable M deliberately and unnecessarily shone his torch into Mr R’s face for a prolonged period of time.  Mr R says that he does not necessarily want Senior Constable M to be disciplined but wants him to heed the complaint and to not to do it again.
  • Constable D registers the matter as a level 1 complaint on BlueTeam and routes it to his supervisor, Sergeant S.
  • Sergeant S makes a preliminary assessment and determines that the matter is suitable for informal resolution. Sergeant S contacts Mr R and it is agreed that Senior Constable M will be spoken with.
  • Sergeant S speaks with Senior Constable M as he is commencing his shift that night. Senior Constable M accepts that he shone his torch at Mr R while they were speaking on the doorstep and stated that while it was necessary to use his torch for visibility, he will take care not to direct it at a person’s face for a prolonged period.
  • Sergeant S contacts Mr R and informs him of the conversation with Senior Constable M.
  • Sergeant S updates the BlueTeam entry with notes about the informal resolution and routes it to her manager, Inspector W.
  • Inspector W approves the course of action, notes his decision on BlueTeam and routes it to Professional Standards to be closed.
  • Professional Standards close the matter as ‘negotiated’.

Tasmania Police reserves the right to formally inquire into a level 1 or level 2 matter despite the desire of a complainant or the person reporting the matter to resolve it through informal resolution.

9.3. Formal Resolution (Level 1 and Level 2 only)

Under sections 46(2)(d) and 47(1) of the Police Service Act 2003 a matter that was initially received as a complaint may be resolved by conciliation.  This includes Equity and Diversity matters.  A member of the rank of inspector or above may decide that a complaint is to be formally resolved.

Formal resolution is a type of conciliation.  It does not involve a judgement about the correctness of any particular point of view or set of circumstances that may be in issue; nor reaching a finding in respect to a subject officer’s conduct.  Rather, it is a process of bringing two sides together to reach a compromise, thereby resolving the matter and enabling the parties to move on.  The parties agree to settle a matter on mutually acceptable terms, while recognising that they each may still hold divergent views.

Formal resolution is suitable for minor matters where no disciplinary action is envisaged[36]. It circumvents the requirement for formal inquiries/investigations into a complaint and therefore also avoids the need for any official determination about whether the Code of Conduct has been breached. It is only suitable for Complaint 1 and 2, IRM1 and 2, Equity and Diversity 1 and 2 matters.

Care should be exercised when considering the suitability of formal resolution for matters of discrimination or excessive force.

9.3.1. How to Formally Resolve a Complaint

It is essential that the complainant and the subject officer both agree to the process.  The manager performing the role of Resolver (see below) must also agree to the process on behalf of Tasmania Police.  Reasons why a manager may not agree to the process include when a subject officer is alleged to have repeated behaviour (e.g. continues to use inappropriate and unprofessional language in the workplace or in public) and the matter warrants inquiry / investigation instead of a formal resolution outcome.  If agreed to and deemed appropriate, formal resolution can be undertaken at any time, even if an inquiry / investigation has commenced.

All decisions should be recorded on BlueTeam, including agreements to formally resolve a matter or where a party changes their mind about their willingness to participate.

9.3.2. Role of Resolver

The formal resolution process should be coordinated by the subject officer’s line manager (‘Resolver’) following the registration and vetting process, unless a conflict of interest prevents this.  The Resolver must act as an impartial third party whose role is to coordinate the process and assist the parties in considering different options and provide information about the possible terms of a formal resolution[37]. The Resolver must ensure that a third party (ideally themselves) is present in any communication between the complainant and subject officer about that specific complaint.  Both the complainant and the subject officer may have a support person present during discussions.  The Resolver must ensure that any special assistance requirements are addressed.

After consulting with both parties the Resolver will decide how formal resolution will take place and who will participate.  The Resolver is not an advocate for either side. The Resolver helps both sides talk about the issues and makes sure that the process is as fair as possible for everyone involved.  While the Resolver does not decide who is right or wrong, they can provide information, for example about legislation or Tasmania Police procedures. The Resolver helps the complainant and subject officer think about ways to resolve the complaint and assists them to negotiate an agreed outcome[38].  All parties must agree to keep negotiations and outcomes confidential.  The Formal Resolution template is to be used for this process and must be loaded to BlueTeam when complete.

9.3.3. Agreed Terms

A matter must not be formally resolved unless the subject officer is consulted and the terms of formal resolution are acceptable to them and the complainant.  Terms of formal resolution will vary depending on the nature of the complaint.

Examples

  • making an apology
  • explaining to the complainant why certain actions were / were not taken
  • agreeing to undertake CPD such as retraining

The terms by themselves do not constitute formal resolution – rather, formal resolution is the process of the parties negotiating and agreeing to the terms.  It is to involve a face-to-face engagement or telephone engagement that involves all parties, including the manager.  If a matter is formally resolved, Tasmania Police may still require the subject officer to undertake CPD.

9.3.4. Record Keeping

The Resolver must document on BlueTeam the terms upon which the matter is formally resolved.  Note: a complaint may involve more than one allegation so members updating BlueTeam must accurately record which specific allegation(s) are formally resolved. The outcome of the matter will be recorded as ‘formally resolved’ by Professional Standards.

9.3.5. Failure of Formal Resolution

If at any stage in the formal resolution process one or both parties is no longer agreeable to formal resolution then the normal procedures for level 1 or level 2 (whichever applies) are to be followed.

9.3.6. When Formal Resolution May Not be Used

Formal resolution may not be used for level 3 matters due to the perceived level of seriousness and / or complexity.

Sound judgement is always required in determining which matters are suitable for formal resolution.  In the interests of maintaining proper standards of conduct and public confidence some matters ought to be inquired into or investigated regardless of the preparedness of the parties to conciliate.  Tasmania Police reserves the right to inquire into or investigate matters even when all parties agree instead to formal resolution.  Where any doubt exists, advice can be sought from Professional Standards.

9.4. Apologies

An apology may be given for level 1, 2 or 3 matters or part of a matter. An apology is not an outcome in itself but can be given during the informal resolution of a matter, during formal resolution or during an inquiry / investigation.  Tasmania Police reserves the right to continue to inquire into / investigate such matters as a breach of the Code of Conduct or offence, serious offence or crime.  The giving of a personal apology from a member would, however, be taken into account when assessing appropriate action and given due credit.

Apologising should not be seen as a sign of organisational weakness. To the contrary, it is a sign of organisational strength and maturity[39].  Many complainants are merely seeking to be listened to and provided with an explanation and apology[40].  For low level matters, a prompt and sincere apology to the complainant may avoid the escalation of a matter and lead to a more timely and appropriate resolution and in some cases may lead to the matter being closed[41].

An apology does not amount to an admission of liability as per s7 of the Civil Liability Act 2002 which states:

Effect of apology on liability

(1) An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person – (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and (b) is not relevant to the determination of fault or liability in connection with that matter.

(2) Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the fault of the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

(3) In this section, apology means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, which does not contain an admission of fault in connection with the matter.

9.4.1. Circumstances Appropriate for an Apology

Regardless of whether an apology is made, all matters must be registered on BlueTeam. The circumstances in which it might be appropriate for an apology will need to be assessed on a case-by-case basis.  Consideration should be given to:

  • whether a member has caused any adverse impact or harm to the complainant
  • whether an apology is appropriate
  • whether the complainant is willing to accept an apology.

9.4.2. Personal Apology from Member

A member who is the subject of a complaint may choose to apologise to the complainant.  Due credit must be given to that member for the apology.  If an apology is made by a member on behalf of the subject officer (for example, a sergeant on behalf of a constable under their supervision), then the subject officer(s) should be consulted and consent to an apology being made on their behalf, before it is made.

9.4.3. Apology from Tasmania Police

Apologies by a member of the rank of inspector or above may be made on behalf of Tasmania Police.  Apologies may not be made on behalf of an individual member unless they have given their consent.

9.4.4. How to Make an Apology

Apologies can be made verbally or in writing.  All apologies should include the following elements[42]:

  • acknowledgement that the action or inaction was incorrect, inappropriate, impolite, unreasonable, etc.
  • acknowledgement that the action or inaction had an impact on the complainant, for example it embarrassed or offended them
  • explanation of the cause of the incident, or contributing factors
  • an expression of remorse (“I am sorry” or “I apologise on behalf of Tasmania Police”)
  • assurance that the subject officer(s) have been spoken to
  • an undertaking that steps will be taken to ensure the incident is not repeated.

If an apology is made by the subject officer then they may consider having another officer present as a witness to the apology.  A running sheet entry summarising the conversation should be added to the matter on BlueTeam (or notified to the member with carriage of the BlueTeam matter).

Examples

  • Police Officer
    • “I apologise.  That was unprofessional”
    • “I apologise that I did not act in a timely manner.  I realise this matter is significant to you and that it would have been beneficial to you for me to have kept you informed.”
  • Inspector or above
    • “I regret that the actions of Tasmania Police were not appropriate”.
    • “I apologise on behalf of Tasmania Police.”

Footnotes: 

[36] Adapted from Tasmania Integrity Commission ‘Report of the Integrity Commission No. 2 of 2014: An Audit of Tasmania Police Complaints Finalised in 2013’, p34

[37] Adapted from Australian Human Rights Commission website, ‘Conciliation – how it works’, www.humanrights.gov.au/complaints/complaint-guides/conciliation-how-it-works accessed 16 March 2016

[38] Australian Human Rights Commission website, ‘Understanding and Preparing for Conciliation: Human Rights and ILO’, www.humanrights.gov.au/understanding-and-preparing-conciliation-human-rights-and-ilo accessed 16 March 2016

[39] Ombudsman Western Australia, ‘Guidelines: Remedies and Redress’, April 2010, p2

[40] Adapted from Australia/New Zealand Standard 10002:2014 ‘Guidelines for Complaint Management in Organisations’, Appendix I, p38

[41] NSW Ombudsman, ‘Apologies – A Practical Guide (Second Issue)’, March 2009 cited in Australia/New Zealand Standard 10002:2014 ‘Guidelines for Complaint Management in Organisations’, Appendix I, p38

[42] Adapted from Ombudsman Tasmania, ‘Guidelines for Complaint Handling’, January 2013, pp16-17