Cameron v Commissioner of Police, NSW Police Force

[2016] NSWCATAD 281

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Cameron v Commissioner of Police, NSW Police Force [2016] NSWCATAD 281
Hearing dates:	31 May 2015, 9, 10, 11 & 12 May 2016, 16 & 17 June 2016 and 24 June 2016
Date of orders:	02 December 2016
Decision date:	02 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R J Perrignon, Senior Member J Newman, General Member
Decision:	(1) The complaints of direct discrimination by reason of the respondent declining or failing to grant Ms Cameron’s applications for transfer to the Far South Coast Local Area Command are dismissed.  (2) The complaints of victimisation by reason of the email communications dated 8 August 2012 and 2 October 2012 are dismissed.
Catchwords:	Discrimination on the grounds of carers responsibilities – discrimination on the grounds of disability (mental health) – whether the respondent employer directly discriminated against the applicant on the grounds of carers responsibilities or disability in declining her requests for transfer from Sydney to Batemans Bay   Victimisation – whether the respondent subjected the applicant to a detriment by writing two email communications to her in 2012, on the ground that she had complained of discrimination or threatened to do so, or was suspected of the same
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Heber v Glenn Henney & Sons Pty Limited (No 2) [2007] NSWADT 230 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Perera v Director-General, Department of Education and Communities [2012] NSWADT 108 Purvis v NSW (Department of Education and Training) (2003) 217 CLR 92 Sivananthan v Commissioner of Police (NSW) [2001] NSWADT 44
Category:	Principal judgment
Parties:	Jennifer Cameron (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: A Perrigo (Respondent)   Solicitors: J Cameron (Applicant in person) Norton Rose (Respondent)
File Number(s):	1410170

REASONS FOR DECISON

1. The applicant, Ms Cameron, is a clerical officer employed by the NSW Police Force in its Aviation Support Branch in Sydney. From 2001 to 2005, she worked as a clerical officer at the office of its Far South Coast Local Area Command (“Far South Coast Local Area Command”) in Batemans Bay. During that period, she experienced serious interpersonal conflict with two other employees. She took sick leave and returned to work. In 2005, she transferred to a clerical position in The Rocks Local Area Command at Sydney. While retaining ownership of her home in Batemans Bay, she purchased and sold a unit in Sydney, and currently lives in a rented garage in Sydney.

2. For many years, she has wished to return to live and work in Batemans’ Bay, to be with her son who continues to live there, and to be near her friends. She has made many applications for transfer back to Batemans Bay, all of them unsuccessful.

3. On 7 March 2013, she complained to the Anti-Discrimination Board that she had been directly discriminated against and victimised by her employer, in respect of her applications for transfer back to Batemans Bay. The Board accepted for investigation only the following complaints, in respect of the period 1 May 2009 to 7 March 2013:

• complaints of discrimination on the grounds of her carers responsibilities and disability, and

• complaints of victimisation.

4. The Board has referred those complaints to this Tribunal.

5. Ms Cameron says that she has at all relevant times had a responsibility to care for her adult son because he has a severe mental disorder. She says she has a disability, in that she suffers from a major depressive disorder. She says that the Police Force discriminated against her directly, by declining or failing to grant her applications for transfer on the grounds of her carers responsibilities or her disability. She says that in doing so, it treated her less favourably than it treated or would have treated persons without her carers responsibilities or disability.

6. Ms Cameron identified the applications for transfer to some degree in her Statement of Claim, and particularised them further in the course of her oral submissions. They were finally identified in a document tendered as an exhibit at the hearing. The relevant transfer applications were made on the following dates, in respect of the following positions at the Far South Coast Local Area Command at Batemans Bay:

1. 15 May 2009: General Administrative Support Officer

2. 9 November 2009: Executive Officer

3. 8 January 2010: Executive Officer

4. 19 February 2010: Roster Officer

5. 5 March 2010: General Administrative Support Officer

6. 18 October 2011: General Administration Officer and Executive Officer

7. 16 June 2014: Roster Officer and Executive Officer

8. 26 June 2014: Roster Officer and Executive Officer

9. 22 July 2014: General Administrative Support Officer (cadetship)

7. Ms Cameron also complains that she was victimised by her employer on 8 August 2012 and 2 October 2012. On the first occasion, she received an email from Assistant Commissioner Jenkins which is considered below. On the second occasion she received an email from Ms Adriaanse, the Manager of Human Resources Policy and Employee Relations, reiterating part of the advice given by Assistant Commissioner Jenkins in his email. Ms Addriaanse’s email is considered below.

8. Before the Tribunal, the applicant did not proceed with any complaint of indirect discrimination.

Legislation

9. Direct discrimination on the grounds of disability is proscribed by section 49D(2) of the Anti-Discrimination Act 1977, which provides relevantly as follows:

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:

….

(b) by denying the employee access, or limiting the employee’s access, to opportunities for … transfer …., or to any other benefits associated with employment .... .

10. Discrimination on the grounds of disability is defined as follows in section 49B:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability … treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, …

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

11. Direct discrimination on the grounds of carers responsibilities is proscribed by section 49V(2), which provides relevantly as follows.

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer:

….

(b) by denying the employee access, or limiting the employee’s access, to opportunities for … transfer …, or to any other benefits associated with employment …. .

12. Discrimination on the ground of carers responsibilities is defined as follows in section 49T:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s responsibilities as a carer if the perpetrator:

(a) on the ground of the aggrieved person having responsibilities as a carer, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities …

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer.

13. In determining whether, on a prohibited ground, there has been direct discrimination, the Tribunal determines whether there has been differential treatment (that is, whether the victim was treated less favourable than a comparator), and if so, whether that treatment was given on the prohibited ground – often referred to as ‘causation’: Heber v Glenn Henney & Sons Pty Limited (No 2) [2007] NSWADT 230. In respect of each decision the subject of complaint, both differential treatment and causation are considered below.

14. For the purpose of determining differential treatment, the comparator is a person with all the attributes of the applicant, other than the attributes alleged to have given rise to the discrimination (in this case, disability and carers responsibilities), in the same circumstances or circumstances which are not materially different: Perera v Director-General, Department of Education and Communities [2012] NSWADT 108 at [77].

15. On the determination of the causation issue, the majority of the High Court of Australia held in Purvis v NSW (Department of Education and Training) (2003) 217 CLR 92 at 161:

The answer to the question presented by treatment “because of” disability does not determine the separate, comparative question which must be asked: how would the discriminator treat or have treated a person without the disability in the relevant circumstances?

16. And at 163:

... the central question will always be – why was the aggrieve person treated as he or she was? If the aggrieved person was treated less favourable was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. It it would be a mistake to treat those words as substitutes for the statutory expression of “because of”.

17. The reasoning in Purvis was considered by the Appeal Panel of the Administrative Decisions Tribunal in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The Panel observed [at 28]:

The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.

18. To succeed in her claims of direct discrimination, Ms Cameron must prove:

1. That at the relevant times she had responsibilities as a carer for her son, or that she had a disability.

2. That her employer declined or failed to grant her applications for transfer or any of them on the grounds of her carers responsibilities or her disability.

3. That in declining her applications or failing to grant them, the respondent treated her less favourably than it treated or would have treated others without her carers responsibilities or disability in the same circumstances or in circumstances which were not materially different.

19. Victimisation is proscribed by 50(1), which relevantly provides:

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

….

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

20. Section 50 was considered by the Administrative Decisions Tribunal in Sivananthan v Commissioner of Police (NSW) [2001] NSWADT 44. The Tribunal observed as follows:

41 …. The detriment suffered by the complainant must be real and not trivial. Whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.

42 …. In order to prove that the complainant was subjected to a detriment on the ground of his complaints of race discrimination “a relationship of cause and effect” (this is the language used by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 118 ALR 80 at 103) must be established between those complaints of race discrimination and the actions of the respondent which result in a detriment to the complainant. Thus, it is the reasons or grounds for the respondent’s actions, as opposed to his intention or motive, which are crucial. It is axiomatic that we must be satisfied that the respondent, or his employees, knew of the complainant’s complaints of race discrimination if we are to find that the respondent subjected the complainant to any detriment on the ground that he had complained of race discrimination.

43 Whether the complaints of race discrimination were “an operative ground” for the actions which constitute a detriment (as stated by the Tribunal in Shaik), or whether they must be “the substantial and operative factor” (as Ms Anderson contended) is an issue which was identified, without resolution, by the NSW Law Reform Commission in its Review at page 556. Kirby J considered this broad issue of causation in IW v City of Perth (1997) 191 CLR 1 at 62-64 when discussing the terms of the West Australian Equal Opportunity Act 1984. We adopt his language: it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of race discrimination, “had a real causative effect in the sense that but for its presence the act complained of would not have occurred” (at page 64).

44 Consequently, in the context of this case, the question which the Tribunal must determine in respect of each alleged incident of victimisation is whether the respondent, or his employees or agents, subjected the complainant to any detriment on the ground that the complainant had done any of the things referred to in sub-paragraphs (a), (b), (c) and (d) of section 50(1) of the Act.

21. In the circumstances of this case, Ms Cameron must prove that either Assistant Commissioner Jenkins’ email of 8 August 2012, or Ms Adriaanse’s email of 2 October 2012, subjected her to a detriment, objectively determined, and was sent to her on one of the grounds prohibited by section 50.

Issues for determination

22. The issues for determination may be summarised as follows.

1. Whether Ms Cameron at the relevant times suffered from a disability.

2. Whether at the relevant times she had responsibilities as a carer for her son.

3. Whether her employer failed or declined to grant any of her applications for transfer on the grounds of her disability or carers responsibilities, and in doing so treated her less favourably than he treated or would have treated a person without her disability or carers responsibilities in the same circumstances or circumstances which were not materially different.

4. Whether Assistant Commissioner Jenkins’ email communication of 8 August 2012 subjected Ms Cameron to a detriment and, if so, whether it was written on one of the grounds prohibited by section 50.

5. Whether Ms Adriaanse’s email communication of 2 October 2012 subjected Ms Cameron to a detriment and, if so, whether it was written on one of the grounds prohibited by section 50.

Ms Cameron’s evidence

23. Ms Cameron gave evidence by way of a statement, and oral evidence. She said that she commenced work at the Far South Coast Local Area Command on 12 February 2001 as a Clerical Officer Level 1/2. In 2002, she underwent chemotherapy and radiotherapy for bowel cancer. In 2003, she separated from her husband, and divorced in 2004.

24. While at the Far South Coast Local Area Command, she experienced serious interpersonal conflict with two other employees. She took sick leave in 2003 and 2004, due to anxiety and depression resulting from the situation at work. She said that her symptoms adversely affected her marriage.

25. When she returned to work for the second time on 15 November 2004, she was transferred to the Police Station at Batemans Bay, which is across the road from the Local Area Command. We infer that her employer was trying to prevent or quell the conflict between Ms Cameron and her colleagues. She tried to reconcile with one of the two employees with whom she had conflict, without success.

26. In March 2005 a new office manager was appointed, who advised Ms Cameron that it would be in her best interests to obtain a transfer away from the office at Batemans Bay. On 18 April 2005, Ms Cameron suffered what she described as a ‘recurrence of my injury’. We infer that her symptoms of anxiety and depression recurred as a result of her situation at the workplace.

27. On 3 July 2005, Ms Cameron transferred to Sydney at the suggestion of the office manager, and commenced work at The Rocks Local Area Command. In September 2005, she applied successfully for a promotion to a Level 3/4 position at the Aviation Support Branch, in order to pay for the mortgage on her Batemans Bay home, and her rent in Sydney. In 2007, she was promoted to Level 5/6 at that Branch.

28. In 2009, she said, her husband died. Her son, she said, became severely depressed and suicidal, abusing alcohol and other drugs. In her statement, signed in February 2013, she explained that he was then 28 years old, and suffered from depression, aggression, rage, alcohol and drug abuse, with suicidal tendencies. She said she had been advised by doctors that he had suffered irreversible frontal lobe damage due to drug abuse as a teenager. By 2009, she said, he was incapable of living independently of her ‘with any level of psychiatric stability’. She received doctor’s advice that his mental condition was such that he needed her to care for him, and to live in a stable environment. She then began to apply for transfers back to Batemans Bay.

29. In May 2009, she said, she applied for the position of a clerical officer level 1/2 at the Far South Coast Local Area Command at Batemans Bay. As a level 5/6 officer, she felt she was abundantly qualified. She was surprised when the office manager, Ms Hepburn, told her that her application had been unsuccessful. Ms Hepburn said she had been placed on an eligibility list.

30. On 9 November 2009 she applied for a clerk grade 5/6 position as Executive Officer role at the Far South Coast Local Area Command at Batemans Bay, for which expressions of interest had been sought. She thought herself suitable for the role, as it was at her current grade. Two days later, she submitted a request to be transferred into the position on compassionate grounds, to care for her son. To succeed, she said, relevant officers at the Far South Coast Local Area Command would need to approve the request by signing it. They declined, and the request was not granted.

31. On 8 December 2009, Ms Hepburn informed her that her application for the Executive Officer role had been unsuccessful, and that her application for lateral transfer had also been unsuccessful as the Human Resources Manager, Mr McKenna, had not supported it. Ms Hepburn told her that the Executive Officer role would be advertised externally (i.e., outside the Police Force), as a temporary 6-month appointment. She confirmed this by email dated 14 December 2009.

23. Ms Cameron rang Mr McKenna to ask the reason. She said he replied that she was not qualified for the position, and that her medical evidence was insufficient.

24. In late December 2009, after the Executive Officer role had been advertised externally, Ms Cameron attended the Far South Coast Local Area Command offices in order to pick up an application form for the position, and to view the comments which had been made by others on her application for lateral transfer. She looked for Ms Hepburn, but she had not yet arrived at work. Ms Cameron accessed her own email, presumably on a computer at the Far South Coast Local Area Command. Ms Hepburn arrived, and told her to let her know in future before she came into the office at Batemans Bay. Ms Hepburn, whose evidence on other issues is considered below, gave a similar account of this meeting. Ms Cameron thought Ms Hepburn seemed ‘angry’ to see her, but Ms Hepburn described her own attitude as one of concern about the potential for further conflict between Ms Cameron and one of the two women with whom she had previously had conflict, and who was still working there. Though nothing turns on the difference in the accounts of the two witnesses, it is likely that Ms Hepburn was apprehensive due to the potential for conflict in the office.

25. On 18 December 2009 the Public Service Association, presumably at Ms Cameron’s request, asked her employer to re-examine its decision not to employ her in the Executive Officer role.

26. On 12 January 2010, Ms Cameron informed Ms Hepburn by telephone that she would deliver to the Far South Coast Local Area Command a fresh application for the 6-month temporary position, and sought access to the office computer system to retrieve and attach certain documents to her application. She said Ms Hepburn declined permission to let her enter the Far South Coast Local Area Command office, and directed her instead to the police station over the road, from where Ms Hepburn offered to pick up the application. Ms Cameron believed that Ms Hepburn was treating her this way because of the conflict that had occurred between her and her fellow employees up to 2005, and because of her consequent workers compensation claims. Ms Hepburn agrees that on this occasion she asked Ms Cameron to attend the police station in order to avoid conflict in the workplace, and that she picked up the completed application from Ms Cameron there.

27. Ms Cameron felt, and still considers, that the requirement that she attend the Police Station rather than the Far South Coast Local Area Command amounted to discrimination on the grounds of her psychiatric disability. She considered it, “most unjust”. Ultimately, however, it was not relied on as an act of discrimination.

28. On 12 January 2010 she handed her application to Ms Hepburn. On 8 February 2010, her application was declined. In the interim, on 28 January 2010, her application for special circumstances transfer had also been declined.

29. On 19 February 2010, Ms Cameron said she applied for an advertised position of Roster Officer at the Far South Coast Local Area Command, at grade 5. Given her current grade of 5/6, she felt herself well qualified. That application was declined.

30. In March 2010, she applied for the position of clerical officer grade 1/2 at the Far South Coast Local Area Command. That application, too, was rejected.

31. At that stage, she said, her son was ringing her from Batemans Bay while she was at work, abusing her and threatening to commit suicide by driving into a tree. She said he was abusing alcohol and drugs. On 13 September 2010 she took long service leave, and her accrued annual leave, and returned to live in Batemans Bay for 13 months, to look after her son. With the approval of her employer, she took secondary employment at a nursing home during this period.

32. On 17 October 2011, Ms Cameron returned to work in Sydney. On 18 October 2011 she requested a lateral transfer on the grounds of special circumstances to the position of General Administrative Support Officer (GASO) or Executive Officer at the Far South Coast Local Area Command at Batemans Bay. She provided a psychologist’s report in support. Her request was declined on 7 November 2011. She said her request was declined by Ms Hort, on the basis that the positions were temporary positions only, which were vulnerable to deletion on a restructure.

33. Ms Cameron felt increasingly distressed as a result of the refusal to grant her transfer requests and applications. She consulted a doctor for anxiety and depression, and claimed workers compensation. That claim, too, was rejected.

34. In July 2012, Ms Cameron came to bowel surgery. Her physical condition precluded her travelling home to Batemans Bay on weekends as she had been doing. For reasons of her health, the Police Force agreed to transfer her on a temporary basis to Moruya Police Station, which is not far from Batemans Bay. She performed clerical duties at Moruya from August 2012.

35. On 12 September 2012, Ms Killham, Manager of the Special Services Group (of which Aviation Support presumably formed part) and Detective Inspector Killham of that Group, visited Ms Cameron at Moruya. Ms Cameron says that, among other things, they suggested she seek work outside the Police Force, including the Eurobodalla Shire Council and local hospital. Ultimately, Ms Cameron did not rely on the events at this meeting as constituting direct discrimination or victimisation. Though there was some conflict between Ms Cameron’s recollection of this meeting and Ms Killham’s evidence as to what occurred, both witnesses agreed that some suggestions were made as to finding work outside the police force with the local Council and other possible employers to enable Ms Cameron to live in Batemans Bay if she could not find employment there with the Police Force. As the exchanges at this meeting are not relied on as evidence of discrimination or victimisation, it will be unnecessary to summarise the evidence of Ms Killham, which goes to that event.

36. Ms Cameron sought a meeting with the Commissioner of Police to discuss her applications for transfer. On 11 December 2009, she was granted a meeting with Ms Adriaanse, Ms McMullin, Mr Vidal and a support person. Ms Adriaanse informed Ms Cameron that the Executive Officer position had been filled, and that only the GASO position was now vacant. There was a discussion about the workplace conflict between 2001 and 2005, and the transfer to Sydney in 2005.

37. Ms Cameron eventually applied for, and gained, access under freedom of information legislation to documentation concerning the declining of her various applications for transfer.

38. On 25 February 2013 she returned to work in Sydney.

39. She remains the owner of her home in Batemans Bay, which is subject to a substantial mortgage. Her son has continued to live in Batemans Bay while Mrs Cameron has lived in rented accommodation in Sydney.

40. She said that she would have to move back to Batemans Bay to look after her son, because he refused to live with her in Sydney, though he did attempt it on at least one occasion. Though not admitted by the respondent, her uncontested evidence was that the rented accommodation in Sydney has consisted of a garage with a toilet. Though Ms Cameron attributes his reluctance to social considerations, it is not surprising that an adult son might decline to live in that form of accommodation with a parent. The Tribunal has no hesitation in accepting that, for whatever reason, the son has refused to live with her in Sydney.

41. Ms Cameron produced a number of medical reports in support of her contention that she had a disability. Among them were reports from Dr Martin Allan and Dr Jayanta Kar. She was examined by Dr Allan on 1 December 2014. In his report of 4 December 2014, he diagnosed a longstanding major depressive disorder and appeared to have experienced depression since 2003, which had fluctuated but never resolved. In his report to a workers compensation insurer, undated but stamped as having been received on 24 April 2015, Dr Kar said she had been suffering from depressive episodes, severe adjustment disorders and generalised anxiety for almost eleven years.

42. The respondent submitted that, as the opinions of Dr Kar were expressed in the context of a workers compensation claim, they should be given little weight. We do not consider that the existence of a workers compensation claim, or the fact that a medical opinion is expressed in relation to it, adversely affects its weight. The expert opinions of Dr Allan and Dr Kar are uncontradicted, and we accept them as accurate.

43. Ms Cameron’s evidence as to her applications for transfer back to Batemans Bay, summarised above, is not contradicted by the respondent’s evidence as to those events, which is summarised below. For that reason, we are satisfied that her evidence on those matters, so far as it goes, is accurate. She did not produce any direct evidence that she had been discriminated against in respect of those applications, but drew the inference that she must have been, because she felt she was well qualified for each position for which she applied. She considered it unfair and unjust that her applications were rejected.

44. The Tribunal indicated to her at hearing that its task was not to review the fairness of the respondent’s decisions with regard to transfer, or to decide the correct and preferable decision in each case, but rather to determine whether, in respect of each decision, the respondent had directly discriminated against her on the grounds of disability or carers responsibilities.

Respondent’s evidence

54. The respondent relied on statements and oral evidence from the following witnesses:

1. Ms Kay, Local Area Manager, Hume (formerly, Goulburn) Local Area Command

2. Ms Hepburn, Local Area Manager, Far South Coast Local Area Command

3. Ms Manners, Acting Local Area Manager, Far South Coast Local Area Command, from February to March 2010

4. Superintendent Gersbach, Local Area Commander, Far South Coast Local Area Command, from 2009 to 2010

5. Superintendent O’Brien, Local Area Commander, Far South Coast Local Area Command, from 9 June 2012

6. Ms Adriaanse, Manager, Workplace Equity Unit, NSW Police Force, from December 2008 to February 2011 and thereafter, Manger, HR Policy and Employee Relations.

7. Ms Killham, Business Manager, Special Services Group.

8. Detective Superintendent Noakes, Commander of the Aviation Support Branch.

55. For the reasons given above, it is unnecessary to summarise the evidence of Ms Killham. Before the Tribunal, no complaint of discrimination was maintained in respect of Commander Noakes, and as his evidence goes to the attempts he made to assist Ms Cameron to obtain a transfer to Batemans Bay, it is unnecessary to summarise it further here. The evidence of the remaining witnesses is relevant to the issues for determination. It is convenient to summarise each witness’s evidence below, in the context of each of the transfer applications and other acts complained of.

(1) Whether Ms Cameron suffered a disability

56. It is first necessary for Ms Cameron to prove that, at the relevant times, she suffered a disability. Disability is defined by section 4 to include ‘a disorder, illness or disease that affects a person’s thought processes, … emotions or judgment ….”.

57. We have accepted the diagnoses expressed by Dr Allan and Dr Kar, whose reports are considered above. They demonstrate that Ms Cameron suffered serious psychiatric pathology, variously described as major depressive disorder, severe adjustment disorder and generalised anxiety, during the period of complaint. Though no evidence was led as to how precisely the disorders affected Ms Cameron’s thought processes, emotions or judgment, it is inconceivable that a major depressive disorder or adjustment disorder would not severely affect a sufferer’s emotional state and thought processes. Ms Cameron in her statement described a number of instances where she felt reduced to tears by the events which she described, and we have not hesitation in inferring that her lability was affected by her disorders. We are satisfied that, at the very least, her psychological disorders in the period of complaint affected her emotions.

58. We are satisfied that she suffered from a relevant disability during the period of complaint.

(2) Whether Ms Cameron had responsibilities as a carer for her son

59. It is for Ms Cameron to prove that, throughout the period of complaint, she had responsibilities as a carer for her son. That phrase is defined in section 49S to include responsibilities to care for or support any child of the person (whether or not under the age of 18 years) who is substantially dependent on the person or is in need of care or support.

60. It is not in dispute that Ms Cameron’s son was in his twenties during the period of claim.

61. The evidence of Ms Cameron regarding her son’s condition, and the advice she received in respect of it, has been summarised above. No evidence was called from her son to corroborate his need for care, but on the other hand Ms Cameron did not resile from her evidence in cross examination and no contradictory evidence was led by the respondent.

62. We accept as accurate her evidence that that throughout the period of claim, he suffered from alcohol and drug addiction, anger management problems including rage, and depression. From the evidence considered below with regard to her applications for transfer, we are satisfied that he lived in a flat on her property at Batemans’ Bay when he was not living with her in Sydney, and to the extent he was dependent on her for his accommodation, we accept that he was substantially dependent on her, notwithstanding that he may have had employment from time to time during the period. We also accept her uncontradicted hearsay evidence as to what the doctors told her concerning his condition, and the opinion they expressed that he needed her to care for him. We are satisfied that he was in need of care and support from her.

63. It follows that we are satisfied that, during the period of claim, Ms Cameron had responsibilities as a carer for her son.

(3)(i) Application of 15 May 2009: General Administrative Support Officer

Ms Hort’s evidence

64. Ms Hort gave evidence orally and by written statement. In May 2004, she had become the Business Manager of the Southern Region Command, which included the Far South Coast Local Area Command. She became aware of long standing conflict between Ms Cameron and two other female employees at Batemans Bay, and was regularly consulted by the Local Area Commander there and others on how to resolve the conflict. Her efforts to do so were fruitless. She said the situation became untenable, with negative impact on the health of the officers concerned and the work environment, which she described as ‘dysfunctional’.

65. She said that between 2009 and 2013, Ms Cameron applied for a number of positions at Batemans Bay, all of which would have entailed her working in close proximity with one or both of the other two officers concerned. One of the two officers left in June 2009, but the other (the Roster Officer referred to below) was still working there by 2014. Ms Hort said she was concerned about the potential for conflict if Ms Cameron returned to work at the Far South Coast Local Area Command.

66. In April 2009, she said, the position of General Administrative Support Officer became vacant at the Far South Coast Local Area Command. At the time the NSW Premier and Cabinet had imposed a staffing freeze, requiring prior approval from an appropriate agency – in this case, the Expenditure Review Committee of the Police Force (“ERC”) – before external advertisement. There was also a review being undertaken (the ‘GASO Review’) of such positions throughout the Local Area Commands to ensure that such officers were being allocated where they were most needed, and to remove apparent disparities between the staffing levels of different commands. It is difficult to determine from Ms Hort’s evidence by whom that review was conducted, but nothing turns on it.

67. After a Ministerial audit in 2011, she said, it was proposed that certain Local Area Commands be amalgamated, with a potential loss of jobs. In those circumstances, to avoid permanent staff being appointed to administrative positions which would later be deleted, and the officer concerned being declared excess to requirements, it became the practice to offer the positions as temporary placements for up to 12 months at a time.

68. Ms Hort said she was aware of Ms Cameron’s various applications for transfer to Batemans Bay between 2009 and 2014, but was not on the selection panels which determined any of them.

69. She said the ERC approved the advertising of the GASO position in April 2009 as a temporary position only, for up to 12 months. She said the panel convenor was Ms Hepburn, who informed her that Ms Cameron’s application had been unsuccessful.

Ms Hepburn’s evidence

70. Ms Hepburn also gave evidence. In her capacity as Local Area Manager of the Far South Coast Local Area Command at Batemans Bay, she convened the selection panel for the GASO position which was advertised externally on 27 April 2009 as a 12-month temporary placement. The other panel members were Ms Manners (a General Administration Officer) and Mr Parker of the Rural Fire Service.

71. There were 36 applicants for the position, including Ms Cameron. After reading the applications, she said, each panel member selected six applicants for interview. She herself did not select Ms Cameron, as she did not consider Ms Cameron’s application of the same quality as those she selected. However, Mr Parker insisted on Ms Cameron being granted an interview as she was already an administrative officer within the Police Force, observing that this would have occurred if it were an application for a position in the Fire Service. On 28 May 2009, Ms Cameron and the other selected applicants were interviewed by the panel. Each applicant was asked the same nine questions. Ms Hepburn said the panel unanimously agreed on the most meritorious applicant on the basis of the quality of her answers to those questions.

72. She said that three of the remaining interviewees were then placed on an eligibility list, in order of the panel’s assessment of the merits of their performance at interview. The first was a Mr Wilson. Ms Cameron was the second. That eligibility list was before the Tribunal.

73. The job was offered to the successful applicant, who declined it. It was then offered to Mr Wilson, who accepted. Ms Cameron was notified by telephone of the outcome by Ms Hepburn. By return email dated 5 June – a copy of which was before the Tribunal - Ms Cameron thanked Ms Hepburn for the advice, and asked that her congratulations be conveyed to Mr Wilson.

Ms Manners’ evidence

74. Ms Manners was the Acting Local Area Manager at the Far South Coast Local Area Command from February 2010 to March 2010. She recalled being on the selection panel for the GASO position referred to above, with Ms Hepburn. She recalled that, at interview, Ms Cameron’s responses were not always relevant to the responsibilities of the advertised position. In considering her application, Ms Manners took into account her written application and responses at interview. She was unaware at the time that Ms Cameron had any disability or responsibilities as a carer. She considered that the applicant selected by the panel ‘had demonstrated a greater consistency of merit in their response as compared to the other shortlisted applicants”. Ms Manners’ evidence is consistent with that of Ms Hepburn, and not inconsistent with the evidence of Ms Cameron, and we make findings in accordance with it.

Superintendent Gersbach’s evidence

75. Superintendent Gersbach said that he relieved as Commander of the Far South Coast Local Area Command from March to July 2009, when he became its substantive Commander. He held that post until becoming the Local Area Commander at Macquarie Fields in September 2010.

75. He was the approving officer for the GASO position advertised on 27 April 2009, and for the position of Executive Officer advertised internally on 28 October 2009 and externally on 14 December 2009. The selection process for the latter position is considered below.

76. His task as approving officer was to review the relevant selection panel’s recommendation and to confirm his satisfaction that each panel had conducted a merit-based procedure

77. On or about 3 June 2009, he said, he received from Ms Hepburn the report of the selection panel for the GASO position. After reviewing it, he satisfied himself that the panel had made its decision on merit, and indicated as much by adding his signature at the base of the report. He produced to the Tribunal a copy of the report, signed by him.

Discussion and findings

79. The evidence of Ms Hort, Ms Hepburn, Ms Manners and Superintendent Gersbach, to the extent that it touches on the same events, is consistent with documentary evidence and with the evidence of each other. It is not inconsistent with Ms Cameron’s evidence. We are satisfied that the evidence of Ms Hort, Ms Hepburn, Ms Manners and Superintendent Gersbach is accurate.

80. The presence of Ms Cameron’s name in the second position on the eligibility list indicates that the panel was ready to recommend her appointment if the preferred appointee and Mr Wilson were unwilling or unable to take up the position. It is consistent with the evidence that, when compared with the other applicants interviewed, the panel considered her the third best candidate for the role.

81. There is no evidence that the panel members were aware that Ms Cameron had any disability or responsibilities as a carer when they made their decision. We accept that they did not. We are satisfied that the panel made its decision purely on the basis of its assessment of the merit of the applicants concerned, which it drew from their written applications and performances at interview. We are satisfied that the decision to prefer two applicants ahead of Ms Cameron was not made on the grounds of her disability or carers responsibilities.

82. On the issue of differential treatment, Ms Cameron did not identify an actual comparator. The process was a competitive one, in which the candidates were ranked in order of merit. The two candidates preferred to Ms Cameron are not appropriate comparators, because there is no evidence to show that they lacked a relevant disability or carers responsibilities, and their circumstances were different from Ms Cameron’s, as their applications and performances at interview were judged to be superior to hers. The only available comparison is with a hypothetical comparator. There is no evidence to suggest that the Panel would have treated a person without a disability or carers responsibilities more favourably than it treated Ms Cameron in the same circumstances or circumstances that were not materially different - namely where the comparator’s performance at interview and his or her application was considered to be the third best of the available candidates.

83. The complaint of direct discrimination on this ground fails.

(3)(ii) Application of 9 November 2009: Executive Officer

Ms Hepburn’s evidence

84. On 17 June 2009, Ms Hepburn wrote to Ms Hort at Region Command, seeking advice on whether Ms Cameron could be excluded from the eligibility list which her own selection panel had prepared as a result of the selection process for the GASO position recounted above. She explained that, at the time, another GASO position was about to be advertised, and though she considered Ms Cameron was competent for the role, she had learned from Ms Hort and Ms Manners about the history of serious conflict between Ms Cameron and her two fellow officers at Batemans Bay. By then, Ms Cameron had obtained documentary evidence of that conflict from Ms Cameron’s file and copied it. She said she was seriously concerned about a recurrence of that conflict if Ms Cameron returned to work there. Ultimately, she said, the Aboriginal Employment Programs Unit selected the position as one for Aboriginal applicants only, so that her concerns over the eligibility list were unnecessary, and of no effect.

85. The selection process for that position forms no part of Ms Cameron’s complaint, but we are satisfied in any event that Ms Hepburn’s decision to seek advice on removing Ms Cameron’s name for the eligibility list arose directly as a result of the prior workplace conflict, and was not made on the grounds of any disability or carers responsibilities on the part of Ms Cameron. There is no evidence, and no suggestion by the applicant, that the workplace conflict was caused by any disability or carers responsibilities on the part of Ms Cameron.

86. The real significance of Ms Hepburn’s request for advice, for present purposes, lies in Ms Hort’s response of 19 June 2009, a copy of which was before the Tribunal. Ms Hort indicated that excluding a person from an eligibility list had industrial implications, and that if there were concerns about risk associated with redeployment of Ms Cameron to Batemans Bay – which Ms Hort indicated she shared – it was necessary to prepare a risk assessment for consideration by the Industrial Unit, taking into account the views of all stakeholders, including Ms Cameron. As will appear below, that risk assessment would ultimately be conducted by Ms Hort herself on 28 November 2012.

87. In her evidence, Ms Hepburn said the position of Executive Officer at the Far South Coast Local Area Command was first advertised internally on 28 October 2009. On 9 November 2009, Ms Cameron applied. There was one other internal applicant.

88. On 11 November 2009, Ms Cameron also made a written request for transfer into that position on the grounds of special circumstances. Those grounds included financial hardship and the need to care for her son. That application contained an allegation by Ms Cameron, implied if not explicit, that she had a responsibility to care for her son.

89. The selection panel consisted of Ms Hepburn as convenor, and Inspector Megay. Ms Hepburn said they considered the applications and agreed that neither applicant met the expected standard to be considered for interview for this position.

90. On 26 November 2009 the panel members signed a report detailing why in each case the candidate did not meet the expected standards. That report was before the Tribunal. In Ms Cameron’s case, it indicated that she had failed to meet certain of the selection criteria, that she had failed to demonstrate ability in certain areas, and failed to provide concrete examples in some cases where they were required.

91. The report noted that Ms Hepburn had reviewed Ms Cameron’s special circumstances transfer request, but considered that it did not warrant overriding the competitive selection process that would ordinarily follow from the rejection of internal applicants. Ms Hepburn also told the Tribunal that she did not regard the grounds advanced by Ms Cameron as being exceptional, based on her experience of such applications.

92. She noted that Ms Cameron had not explained why she needed to care for her son, or provided any medical evidence in support of that proposition. In the absence of that explanation and evidence, she was not satisfied that Ms Cameron in fact had a responsibility to care for her son.

93. To avoid any suggestion of bias, Ms Hepburn took the trouble to ask the Local Area Manager at Griffith to review the applications for the Executive Officer position and give an opinion. She chose this person because she had previously been an Executive Officer, but was not associated with the Far South Coast Local Area Command. The officer at Griffith, according to Ms Hepburn, said that neither applicant had demonstrated that they satisfied the selection criteria.

94. Ms Hepburn said she advised Ms Cameron of the outcome and reasons for decision, and that the position would be advertised externally as a temporary position.

95. On 2 December 2009, she sent a report to Mr McKenna describing the process and outcome. She admitted in the report that she and Superintendent Gersbach had been aware of historical conflict at Batemans Bay involving Ms Cameron, but denied that this had influenced the decision.

96. Ms Hepburn did not resile from her evidence in cross examination.

97. In January 2010, Ms Hepburn said, Ms Cameron resubmitted her special circumstances application of 11 November 2009, this time with a letter from her GP, Dr Lau. He wrote:

“She has longstanding personal illness/relationship issues and complicated family problems. Her attempt to rectify those issues by moving back to Sydney in 2005 has been detrimental to her health. I understand she is arranging for a transfer and I have encouraged her to move back to the south coast.”

98. In our view, that letter does not describe any disability or particularise any pathology giving rise to a disability, nor does it describe any responsibilities on Ms Cameron’s part as a carer.

99. On 15 January 2010, Mr McKenna asked Ms Hepburn by email whether she supported the request, noting that the relevant Guidelines required that both the current and receiving commanders and managers should support the request. Ms Hepburn informed Commander Gersbach that she did not support it, because Ms Cameron had been determined unsuitable in the course of the merit based selection process, and because of the risks posed by her return to the workplace having regard to the past unresolved conflict and the potential for a renewal of that conflict.

Superintendent Gersbach’s evidence

100. As indicated, Supt Gersbach said that he was the approving officer for the position of Executive Officer, which was advertised internally on 2 October 2009. On 26 November 2009 he received from Ms Hepburn the ‘cull sheet’ referred to above. After satisfying himself that a merit-based selection procedure had been followed, he signed it to indicate that satisfaction.

101. As the two applicants were not considered suitable for transfer into the position, he said the position was advertised externally on 14 December 2009. The selection panel consisted of the Cootamundra Local Area Manager, Ms Bucknell, and the Griffith Local Area Manager, Ms Stedman. In February 2010 he received their report, which set out the reasons for their selection of a preferred candidate, with reference to that candidate’s ability to meet the selection criteria. Having satisfied himself that the selection process had been based on merit, he signed the report.

102. He then referred to Ms Cameron’s lateral transfer request of 11 November 2009, which was resubmitted in early January 2010. He said that on 20 January 2010 he received an email from Ms Hepburn, which copied to him Supt McKenna’s query to her of 15 January 2010 as to whether the Far South Coast Local Area Command would support Ms Cameron’s request for lateral transfer on compassionate grounds. Ms Hepburn told Supt Gersbach that she was not supportive of it, given the history of conflict at the command involving Ms Cameron, the prospect of further conflict with one of the women concerned who still worked there, and the risk that, following the corporate review to which the position was subject, the position might not be made permanent and Ms Cameron might lose her job.

103. Supt Gersbach decided not to support Ms Cameron’s application. He said this was because she had failed to meet the selection criteria on her first application when the position was advertised internally, and the position was very important to the Commander because of the requirement to deal with the Commander on a daily basis, and to handle ‘extremely sensitive and confidential material on a daily basis’, including ‘complaints lodged internally and externally, as well as criminal and departmental complaints’. He also had regard to the history of serious conflict at the Command in which Ms Cameron was involved and the potential impact on his staff, including Ms Hepburn, if it were to recur.

104. His primary concern, he said, was that Ms Cameron lacked the ability for the job. In relation to her request for lateral transfer on compassionate grounds, he said it contained limited details as to her circumstances, and did not justify accepting Ms Cameron back into the Command in preference to applicants with greater merit.

105. By email dated 21 January 2010, he informed Supt McKenna that he did not support Ms Cameron’s application for lateral transfer. That email was before the Tribunal. The reasons given by him in the email are consistent with his evidence, which we accept as accurate. There is no evidence that his decision was made on the grounds of carers responsibilities or disability. It was made because of the history of conflict and the potential for its recurrence, and because Ms Cameron’s abilities were not considered sufficient for the position.

Superintendent McKenna’s evidence

106. Evidence was also given by Superintendent McKenna of the Professional Services Command, who had been the General Manager of Human Resources within the Police Force from April 2009 to April 2011.

107. He recalled receiving a phone call from Ms Cameron on or just before 9 November 2009. She explained to him that she wished to be considered for the position of Executive Officer also on compassionate grounds. Applications were due to close on 10 November 2009. He suggested she apply on compassionate grounds in addition to making application in response to the advertised position. She explained that she had responsibilities to care for her son at Batemans Bay, as he ‘has been tied up with drugs’. She also mentioned ‘health reasons’, but did not specify what they were. Superintendent McKenna gave a detailed account of the conversation. He explained to her that he would ensure he saw both her applications before they were determined, that Batemans Bay was a highly sought after transfer, and that later transfer applications were only approved in exceptional circumstances. He explained that the position had already been advertised. He advised that if she intended to rely on any health issues, she should present supporting medical documentation. His account of that conversation is unchallenged, and we accept it as accurate.

108. He said Ms Cameron made a general application for the position on 9 November 2009, and a request for lateral transfer on 11 November 2009.

109. He agreed that Ms Hort asked by email about the appropriate response to Ms Cameron’s applications, outlining the history of conflict between Ms Cameron and one of her co-workers, and the potential for further conflict if Ms Cameron returned there. Superintendent McKenna informed Ms Hort of his conversation with Ms Cameron, and of his advice to make a request for later transfer on compassionate grounds, which had by then been followed. He noted that the position was temporary only, explaining to the Tribunal that this was due to the reviews and restructures going on at the time in respect of administrative positions generally. He told Ms Hort that it was better to make lateral transfers to permanent positions, and explained to the Tribunal the risk that a permanent employee faced if transferred into a temporary position if that position was ultimately not required and the employee was declared excess. He considered it would be ‘harsh and unreasonable’ to transfer a permanent employee on compassionate grounds to such a position, having regard to that risk.

110. On 2 December 2009, he received from Ms Hepburn a report of the selection process, including a ‘cull sheet’ dated 26 November 2009, requesting that he review the panel’s decision. In that report, Ms Hepburn conceded that both she and Superintendent Gersbach were aware of the prior unresolved conflict involving Ms Cameron at the Far South Coast Local Area Command, but denied that it had formed any part of the basis for the panel’s decision.

111. Superintendent McKenna said, and we accept, that he had 19 years’ experience in being a member of selection panels. He considered that the process of selection, set forth in the report, had been fair and was based entirely on the respective merit of the candidates. On 14 December 2009, he saw Ms Hepburn’s email to Ms Cameron setting out the reasons why her application had been unsuccessful. He considered that it addressed each of the selection criteria and that it was comprehensive. It was before the Tribunal.

112. On 6 January 2010, he received from Ms Cameron Dr Lau’s letter in support of her application for transfer on compassionate grounds.

113. On 14 January 2010, he wrote to Ms Cameron, indicating that he would consider Dr Lau’s letter both in the context of her application for lateral transfer, and in the context of the request by the Public Service Association on 18 December 2009 to review the selection panel’s decision.

114. On 21 January 2010, Superintendent McKenna prepared a report in relation to Ms Cameron’s applications for transfer. He noted, among other things, that she had been assessed as not possessing the necessary qualifications (by which we infer he meant attributes) required for the Executive Officer position. He said he did not support her applications for transfer into the position because, according to the Guidelines for Lateral Transfer of an Administrative Officer, it was the published policy of the Police Force that the support of the receiving LAC was essential, and that support had not been forthcoming.

115. By email dated 21 January 2010, Superintendent Gersbach had informed Superintendent McKenna that the Far South Coast Local Area Command did not support the request for transfer because Ms Cameron did not meet the required standard in the merit selection process, she had been involved in significant conflict within the Far South Coast Local Area Command while working there, one of the officers with whom she had had conflict was still working there, the Command was only now recovering from other, unrelated, interpersonal conflict and it was considered important that further conflict did not recur, and there was a risk that if Ms Cameron returned, a number of ‘high performing’ staff members would leave due to a perception (right or wrong) that the Far South Coast Local Area Command would return to a previous state of conflict.

116. Superintendent McKenna told the Tribunal that the request for lateral transfer on compassionate grounds was declined because the merit selection process had already commenced, and that it would be ‘irresponsible’ to transfer a permanent officer like Ms Cameron into a temporary position and expose her to the risk of being declared excess. He noted Dr Lau’s opinion that a move to Batemans Bay would help Ms Cameron’s health given her long standing personal illness, relationship issues and family problems, but noted that no particular illness was specified, that the application itself lacked detailed information, and that financial hardship and a desire to be near family and friends was not exceptional. He did not consider the application strong enough to warrant overcoming the essential requirement under the Guidelines that the receiving command support the application.

117. He provided his report of 21 January 2010 to an Assistant Commissioner for the purposes of a response to the Public Service Associations’ request for reconsideration. On 29 January 2010, he informed Ms Cameron by email of the reasons that he had declined her application. That email was before the Tribunal. It is consistent with the report of 21 January 2010, and his evidence to the Tribunal. He then rang Ms Cameron to discuss his reasons.

Consideration and findings

118. We accept the evidence of Ms Hepburn that Ms Cameron’s application in response to the internal advertisement of the EO position was declined because of the panel’s assessment that she did not meet the criteria for selection.

119. By the time the panel wrote its report of 26 November 2009, Ms Hepburn had seen Ms Cameron’s request for lateral transfer dated 11 November 2009. It is mentioned in the report. In that request, Ms Cameron alleged that she had a responsibility to care for her son. However, Ms Hepburn did not accept that Ms Cameron had any such responsibility, for the reasons given in her evidence summarised above. We accept her evidence in that regard. It follows that any carers responsibilities on the part of Ms Cameron formed no part of the grounds for the rejection of her application for the post. There is no evidence that the other panel member took into account any responsibilities Ms Cameron may have had as a carer. There is no evidence that any member of the panel took into account any disability on Ms Cameron’s part. We are satisfied that the decision of 26 November 2009 to decline Ms Cameron’s application was not made on the grounds of carers responsibilities or disability.

118. We accept the evidence of Supt Gersbach that he approved the panel’s report, because he was satisfied that their decision had been made on the basis of the merit of the two applications concerned. There is no evidence that Supt Gersbach’s decision was made on the grounds of carers responsibilities or disability.

119. We accept Supt McKenna’s evidence that he declined the application of January 2010 for transfer on compassionate grounds because, in his view, it was not strong enough to warrant overcoming the usual requirement that the application be supported by the receiving Command, in circumstances where that support was not forthcoming. The application lacked strength, he said, because Dr Lau’s letter lacked detail as to what illness he was talking about and how it was relevant to the transfer, and because there was nothing particularly unusual about Ms Cameron’s desire to be near family and friends. That evidence is not inconsistent with the documentary evidence, and was not resiled from in cross examination. We accept it as true. We are satisfied that Supt McKenna also took into account the risk that the temporary position to which Ms Cameron sought transfer might not ultimately be made permanent, so that she might lose her employment. We are not satisfied that Supt McKenna’s decision was made on the grounds of carers responsibilities or disability.

120. We are satisfied that the decisions by Ms Hepburn and Supt Gersbach not to support the application for lateral transfer were strongly influenced by the concerns about the risk of recurrence of conflict at the Far South Coast Local Area Command, having regard to past events. We are also satisfied that those decisions were influenced by an assessment that Ms Cameron did not meet the selection criteria for the position. We are not satisfied that carers responsibilities or disability formed and part of the grounds for those decisions. We are satisfied that Ms Hepburn, for her part, did not accept that Ms Cameron had carers responsibilities.

121. Ms Cameron did not give evidence of any actual comparator for the purposes of assessing differential treatment. In respect of a hypothetical comparator, she would need to show that she was treated less favourably than an applicant without carers responsibilities or her disability would have been, in the same or not materially different circumstances. That is, less favourably than a hypothetical comparator who was considered not sufficiently meritorious to warrant the job, and who had a prior history of unresolved conflict at the Command. There is no evidence to support that proposition. It is highly unlikely. We are not satisfied that such a comparator would have been treated any differently from Ms Cameron.

122. The complaint of direct discrimination on this ground fails.

(3)(iii) Application of 8 January 2010: Executive Officer

Ms Bucknell’s evidence

125. Ms Bucknell was the Local Area Manager at Cootamundra. On 14 December 2009, the position of Executive Officer at Far South Coast Local Area Command was advertised externally as a temporary position for 6 months. Ms Bucknell told the Tribunal that the selection panel was comprised of Ms Bucknell, and the Griffith Local Area Manager, Ms Stedman.

126. Ms Bucknell recalled that there were 12 applicants, including Ms Cameron, who applied on 8 January 2010. The panel members, she said, considered the applications separately and then discussed them together. They selected only three applicants for interview. Ms Cameron was not among them. Of those, one withdrew prior to interview.

127. Ms Bucknell recalled the discussions of the panel concerning Ms Cameron. She said Ms Cameron was not selected for interview because her application failed to demonstrate an ability to perform the requirements of the position, and failed to provide sufficiently detailed responses to selection criteria. She gave examples, including the failure to demonstrate experience in the use of relevant computer systems and a knowledge of their application, and the failure to provide concrete examples of the high standards of integrity and confidentiality which the position required. She observed that other applicants – which we infer included those selected for interview - were considered to have provided applications of much higher calibre. She added that the successful candidate had been acting in the role of Executive Officer for two months, and had enjoyed a 17-year career as a sworn officer, which was considered advantageous for a number of reasons, including demonstrated familiarity with police computer systems, and communication and interpersonal skills.

128. On 3 February 2010, Ms Bucknell prepared the selection committee report. That report named the successful applicant, and contained a written recommendation, detailing the qualifications possessed by that applicant which led to his or her selection. On the same date, Ms Bucknell informed Ms Cameron of the result by phone. Responding to a request for reasons, she indicated that Ms Cameron’s application had not adequately addressed her experience in the relevant computer systems, or given concrete examples of integrity and maintaining confidentiality in practice.

Supt Gersbach’s evidence

129. Supt Gersbach’s evidence, summarised above, was that he approved the selection panel’s report by signing it, after satisfying himself that it resulted from a merit-based process.

Consideration and findings

130. There is no evidence that either panel member had knowledge of any disability or responsibilities as a carer on Ms Cameron’s part. We are not satisfied that the decision not to select Ms Cameron for interview was made on either ground. On the contrary, we accept the uncontradicted evidence of Ms Bucknell that the decision was made on the perceived merits of Ms Cameron’s application in comparison with the perceived merits of the applications of the three candidates selected for interview.

131. There is no evidence that Ms Cameron’s carers responsibilities or any disability on her part formed any part of the reasons for Superintendent Gersbach approving the panel’s decision, and we are not satisfied that they did. For those reasons, the causation element is not satisfied.

132. No direct comparator was identified by Ms Cameron. For the same reasons as given above in relation to her application of 15 May 2009 for the GASO position, the successful applicant was not an appropriate comparator. To succeed on the issue of differential treatment, she would have to show that she was treated less favourably than a hypothetical comparator without her carers responsibilities or disability in the same circumstances or circumstances not materially different – that is, a comparator who did not meet the selection criteria, and was competing with a candidate who did. There is no evidence to support that proposition. It is highly unlikely. The element of differential treatment is not made out.

133. The complaint of direct discrimination on this ground fails.

(3)(iv) Application of 19 February 2010: Roster Officer

Ms Manners’ evidence

134. Ms Manners was the Acting Local Area Manager at Far South Coast Local Area Command from 8 February 2010 to 5 March 2010. She recalled being the convenor of the selection panel for the position of Roster Officer, which was advertised internally on 11 February 2010, as a 6-month temporary position. The other panel member was the Local Area Manager of the Shoalhaven LAC, Ms Hargrave.

135. Ms Manners said the only two applicants were Ms Cameron and one other person. She said that she and Ms Hargrave both considered the written application of each candidate and discussed them, either in person or by telephone. Both considered that Ms Cameron’s application did not meet the standard required for the position.

136. She recalled that Ms Cameron’s application did not address maintaining a duty roster for a Command at all, that she did not detail any experience in such a role, save for a claimed experience of 3 months which a review of the system records revealed was 6 weeks. Ms Cameron, she said, did not claim to have had any experience in using IBR systems which was among the selection criteria. There was no evidence of applying police awards or industrial agreements, and Ms Cameron had failed to list the correct names of some of these, or even to mention awards relevant to administrative officers.

137. In contrast, she said the other applicant had demonstrated practical experience and ability in preparing and maintaining rosters to a high level. She detailed a number of ways in which that person’s application had impressed her, including their detailed knowledge of the relevant industrial instruments.

138. Ms Manners said that she did not take into account any disability or carers responsibilities on the part of Ms Cameron, as she had no knowledge of such things at the time. There is no evidence that either member of the panel had knowledge of those things.

Consideration and findings

139. Ms Manners’ evidence is internally consistent, and not inconsistent with other evidence. There is nothing inherently improbable about it, and we accept it as accurate. We are satisfied that that the decision of the panel was made entirely on the basis of the perceived relative merit of the two applicants.

140. There is no evidence that the panel members made their decision on the grounds of Ms Cameron’s disability or carers responsibilities. We are not satisfied they did. The causation element is not made out.

141. Ms Cameron did not identify an actual comparator. For the same reasons as given above in relation to her application of 15 May 2009 for the GASO position, the successful applicant was not an appropriate comparator. To succeed on the issue of differential treatment, she would have to show that she was treated less favourably than a hypothetical comparator without her carers responsibilities or disability in the same circumstances or circumstances which were not materially different – that is, one who did not meet the selection criteria, and was competing with a candidate who did. There is no evidence to support that proposition. It is highly unlikely. The element of differential treatment is not made out.

142. The complaint of discrimination on this grounds fails.

(3)(v) Application of 5 March 2010: General Administrative Support Officer

143. It is common ground that, on 5 March 2010, Ms Cameron applied for the position of General Administration Support Officer at the Far South Coast Local Area Command.

Ms Hepburn’s evidence

144. Ms Hepburn produced to the Tribunal her email reply to Ms Cameron of 7 April 2010. In that communication, Ms Hepburn told Ms Cameron that, before applying to the Expenditure Review Committee for approval to fill such positions generally on a permanent basis, Commanders and Local Area Managers were required by the Region Office to consider requests for transfer by officers already occupying such positions elsewhere on a permanent basis, as a result of the GASO Review. In this case, a request for transfer had been received from such an officer currently employed in another Region. Ms Hepburn informed Ms Cameron that this was being ‘finalised’, by which we infer she meant the approval process was in train. As a result, Ms Hepburn said, there was no need to fill the position on a temporary basis.

145. She produced to the Tribunal a report signed by her on the same date. It indicated that implementation of the GASO Review had begun in 2009, with all permanent GASO officers being asked to indicate their preference for placement at their current location, for relocation, or for redundancy. It said outcomes remained to be determined in respect of only a small number of staff, and that an officer at another Region had expressed interest in transfer to the Far South Coast Local Area Command. On 1 April 2010, that officer had been interviewed by Ms Hepburn and the Commander at the Far South Coast Local Area Command. Ms Hepburn reported that the officer had ‘no known issues’, and had ‘provided a very favourable overall assessment of her current performance and capabilities’. Her transfer had been approved by her current Local Area Manager. Ms Hepburn recommended that the ERC consider placing her permanently into the vacant GASO position at Far South Coast Local Area Command.

Consideration and findings

146. Ms Hepburn’s evidence is uncontradicted, and we accept it as accurate. We are satisfied that Ms Cameron’s application was unsuccessful solely because it was the policy at the time to transfer permanent GASO officers from other commands into such regions in accordance with the GASO review, in order to avoid redundancies where possible. There is no evidence that the decision was made on the grounds of any disability or responsibilities as a carer, and we are not satisfied that it was.

147. No direct comparator was identified by Ms Cameron. The displaced officer under consideration is not an appropriate comparator, because Ms Cameron was not a displaced officer. In respect of a hypothetical comparator, she would need to show that she was treated less favourably than a person without her disability or carers responsibilities in the same or not materially different circumstances – that is, in circumstances where the policy was to give first preference to officers displaced by the GASO review, and such an officer (not the comparator) had applied for the position, been interviewed, and assessed to have had no problems in terms of suitability. It is likely that the respondent would have similarly followed its policy, and declined an application for transfer from a hypothetical comparator in those circumstces. The element of differential treatment is not made out.

148. The complaint of direct discrimination on this ground fails.

(3)(vi) Application of 18 October 2011: General Administration Officer and Executive Officer

Evidence of Ms Adriaanse

149. From July 2012 to December 2012, Ms Adriaanse was the General Manager of Workforce Relations and Strategy for the Police Force. Her duties included approving lateral transfer requests. On 18 October 2011, Ms Cameron applied for lateral transfer into the position of General Administrative Support Officer and Executive Officer at the Far South Coast Local Area Command.

150. That application was before the Tribunal. In it, Ms Cameron said that in July 2005 she had transferred to the Rocks Local Area Command from Batemans Bay, leaving her son in Batemans Bay to be close to his father, from whom she had separated. At one stage, she said, a friend phoned her to say the son had been admitted to hospital and was on suicide watch. Ms Cameron then took him to live with her in Sydney. In August 2005, she transferred to the Aviation Support Branch, where in December 2007 she was promoted to the position of Administration Officer with responsibility for human relations and finance at the level of clerk grade 5/6. She said that her son had been suffering ‘medical, psychological and financial difficulties’, though she did not specify them further. She said that in 2009 her former husband was found dead in his home, and that traumatised her son. She brought him back to Batemans Bay so that he could live near his neighbours and friends. She took long service leave to spend time with him in Batemans Bay. By October 2011 when she made her request for transfer, she said she was commuting to Batemans’s Bay every weekend.

151. Her application did not specify any disability on her part, though it did imply that she had carers responsibilities for her son, without specifying precisely what they entailed, or the reasons why her son, who was an adult, was unable to care for himself.

152. Attached to the application was a report from Dr James dated 15 March 2011. He said that Ms Cameron’s son had been a patient at his practice from 1986, that he had been diagnosed with depression 10 years ago (i.e., in 2001), and that his depression was the likely cause of his ‘Anger & Aggression & Drug Addiction & Binge Alcohol problems in the past’. He said that the son had seen a psychiatrist in 2004 when his mental state deteriorated after his parents’ separation. He noted a suicide attempt five years ago (i.e., in 2006), and that he remained on medication, presumably for depression. He referred also to chronic back pain. He expressed the view that the son needed supervision and supportive care by his mother.

153. Ms Cameron’s application was supported by Commander Noakes of the Aviation Support Branch, Assistant Commissioner McKay of the Special Services Group and Ms Killham, Manager of the Special Services Group. It was forwarded for consideration to Ms Hort, who was the Business Manager of the Southern Regional Command.

154. On 7 November 2011 Ms Hort prepared a report in response to the application. She recommended that ‘any move to endorse a lateral transfer on a permanent basis be presented to the ERC for approval or otherwise’, and forwarded it for consideration to the Director of Workforce Relations and Strategy, which was then filled by Ms Adriaanse in an acting capacity.

155. In the body of the report, Ms Hort noted that the ERC had not approved permanent status for either of the two positions applied for, and that it would be unfair to Ms Cameron to transfer her from a permanent position to one which was vulnerable to restructure, as it could ‘impact on her permanent status in this organisation’. She considered that the request should be ‘reconsidered once the outcome of any restructure is known’. In other words, that no decision be made pending the expected restructure.

156. She also noted that the ERC should have a say in the outcome of the application if permanency was granted in respect of either position.

157. She noted that the GASO position was currently filled on a temporary basis by an officer who had expressed interest following a state-wide advertisement to which Mr Cameron did not respond, and that, while the position remained temporary, this arrangement should continue. She said the Executive Officer position was being ‘managed internally and this situation is to be maintained pending advice re any restructure. The Command has been unable to fill the position permanently at this point in time.”

158. It is unclear what was meant by ‘managed internally’, but it seems this position was temporary, and considered vulnerable to restructure also.

159. Ms Hort described the special circumstances relied on by Ms Cameron as being financial hardship and carers responsibilities associated with her son.

160. On 9 November 2011, Ms Cameron supplemented her request for transfer with a report from her treating psychologist, Mr Coen, dated 7 November 2011. He indicated that her son had ‘documented mental health and substance abuse problems, [and] is reliant upon her for ongoing monitoring and support. He said he was ‘clinically concerned’ that both she and her son would suffer emotionally, physically and financially if she was required to maintain her lifestyle of living in cramped accommodation in Sydney and commuting to and from Batemans Bay every weekend. He offered no diagnosis of any psychiatric condition on Ms Cameron’s part. The letter does not, in our view, suggest that she was suffering from any relevant disability, though for the reasons expressed above, we accept that she was.

161. Ms Adriaanse said she received Ms Hort’s report in about November 2011. She said that neither position had been advertised, and neither had been approved for filling on a permanent basis. She said pending restructures within the Police Force raised the possibility that officers would become excess to requirements, and the policy at the time was to give such people priority in filling vacant positions in preference to lateral transfer requests.

162. Ms Adriaanse also considered a report from Ms Behan, a Project Officer in the Human Relations Policy section of Workforce Relations and Strategy. An unsigned and undated copy of that report was before the Tribunal. After reviewing the history of Ms Cameron’s transfer to Sydney in 2005 and her subsequent applications to return to the Far South Coast Local Area Command, Ms Behan said that the two positions in question were being filled on a temporary basis because they may be subject to organisational change. She noted that Ms Cameron had not applied for the GASO when it was advertised, and considered the current incumbent should remain in place. She noted any transfer to either of the temporary positions could ‘impact on her permanent status and expose her to potential financial and emotional strain in the future’. She recommended that the transfer application be declined.

149. After reviewing the reports of Ms Hort and Ms Behan, Ms Adriaanse said she agreed with the opinions expressed in them. She decided not to support the application. She said she did so because of the risk that a transfer into a temporary position would occasion to a permanent employee like Ms Cameron, in circumstances where the positions were vulnerable to restructure. On 15 December 2011 she indicated as much in writing on her copy of Ms Hort’s report.

Discussion and findings

164. Ms Adriaanse’s evidence is uncontradicted, and we accept that she made her decision not to support the application on the grounds she specified. There is no evidence that Ms Adriaanse had regard to any other ground in making her decision. In particular, there is no evidence that she made her decision on the grounds of carers responsibilities or any disability which she perceived Ms Cameron to have. We are not satisfied that she made her decision on any such grounds.

165. For the purposes of the element of differential treatment, Ms Cameron identified no direct comparator. To prove differential treatment by comparison with a hypothetical comparator, she would have to show that she was treated less favourably than a person without her carers responsibilities or disability, in the same or not materially different circumstances – that is, where the two positions in question were being filled by other officers on a temporary basis pending the outcome of staffing reviews, the positions had not been advertised, the positions were vulnerable to restructure and the person applying from another Command was in a permanent position. There is no evidence to support such proposition. It is highly unlikely. It is likely that the hypothetical comparator would have been treated the same as Ms Cameron. The element of differential treatment is not made out.

166. We are not satisfied that Ms Cameron was directly discriminated against by the declining of her application to lateral transfer.

(3)(vii) Application of 16 June 2014: Roster Officer and Executive Officer

Evidence of Supt O’Brien

167. On 9 June 2012, Superintendent O’Brien said that he became the Commander of the Far South Coast Local Area Command. He had supervision and control of police operations from Batemans Bay, south to the Victorian border. It formed part of his duties to participate in selection panels for the recruitment of staff.

168. Ms Hepburn was then the Local Area Manager. Late in 2012, he said, Ms Hepburn expressed concern about the possibility of Ms Cameron returning to work at the Batemans Bay office, because there had been considerable conflict among the administrative staff over the years while she had been there which had caused her sufficient distress to take leave, and because between 2001 and 2005 there was considerable conflict between Ms Cameron and two other administrative staff, one of whom had left by 2012. Ms Hepburn explained to him that she was not working during the period of the latter conflict, but derived her knowledge of it from the Business Administration Manager at the regional office, Ms Hort. Ms Hepburn expressed concern that if Ms Cameron returned to work at Batemans Bay, the conflict between her and the remaining employee with whom she had previously had conflict could recur.

169. Superintendent O’Brien said he had a similar conversation with Ms Hort. He became concerned that if the former conflict between Ms Cameron and her former colleague recurred at Batemans Bay, it would have a ‘negative impact on the productivity and harmony in the Command generally.’

170. Around November 2012, he said, Ms Hort suggested that a formal risk assessment be undertaken in relation the potential return of Ms Cameron to the Far South Coast Local Area Command. Superintendent O’Brien agreed. He told the Tribunal that this was the usual practice where there is a serious concern about risk.

171. That risk assessment was produced to the Tribunal. Though it described the ‘risk assessment team’ as comprising Ms Hort, Superintendent O’Brien and Ms Bucknell (who was then Local Area Manager of the Far South Coast Local Area Command), it indicated that the assessment itself was conducted by Ms Hort on 28 November 2012, and reviewed by Inspector Anne Clarke on 7 December 2012. Ms Hort had assessed the level of risk presented by the potential return of Ms Cameron as ‘unacceptable’.

172. The assessment recited that Ms Cameron was then working at Moruya police station on a return to work placement, having been unable due to her health to return to work in Sydney on 3 December 2012. She had been granted permission to work at Moruya up to 22 February 2013. The assessment noted that Ms Cameron was then living at Batemans Bay, was unable to travel long distances following bowel surgery, and that her 27 year old son was living at her home in a ‘flat’ with his girlfriend. It noted that Ms Cameron claimed she had been providing care for her son, and that he had been diagnosed with frontal lobe damage and suffered from drug dependency.

173. By way of background, the assessment noted that Ms Cameron’s medical reports recommended that she work on permanent placement near her home in Batemans Bay due to her inability to travel long distances, that she had previously applied for transfers to Batemans Bay without success, and that there was only one substantive administrative position vacant in the area, that being a clerk grade 5/6 position of General Administration Officer at the Far South Coast Local Area Command. This had been filled on a temporary basis since June 2011, which was due to expire on 20 June 2013. This position, the assessment noted, was required to interact with the Roster Officer on a regular basis. The Roster Officer was one of the two women with whom Ms Cameron had had sustained conflict while working at Batemans Bay.

174. The assessment also noted that medical reports and statements demonstrate ‘that Ms Cameron is still significantly affected by the events that occurred at the Far South Coast Local Area Command in early to mid-2000 and recommend that she does not work in close proximity to the two co-workers that she claims harassed and bullied her.’ It said that in January 2012 Ms Cameron had submitted a request for access to documents relating to the Roster Officer, that she had notified the Region Manager in November 2012 that she would cause a summons to be issued to the Roster Officer to attend proceedings in the Administrative Decisions Tribunal (which then had jurisdiction to determine disputes concerning such applications for access), and that Ms Cameron had continued to make reference to the former conflict in her conversations with staff and applications for transfer on the ground of special circumstances.

175. It concluded that a return by Ms Cameron to the Far South Coast Local Area Command risked psychological injury to herself and to the Roster Officer, with negative impacts on the psychological wellbeing and productivity of other staff, and that the level of risk was ‘unacceptable’.

176. Superintendent O’Brien said the assessment was provided to Ms Cameron, who responded that her son’s girlfriend only stayed overnight with her son occasionally, but otherwise lived at her own home. She made known her position on that issue in a phone conversation with the Superintendent on 7 January 2013. Superintendent O’Brien said he considered that Ms Hort’s assessment of the risk level did not depend on the accuracy or otherwise of the girlfriend’s living arrangements, and did not cause the assessment to be altered.

177. On 12 June 2013, he said, the position of Local Area Manager at Far South Coast Local Area Command was advertised internally, as a temporary secondment. Three persons expressed interest, including Ms Cameron. Her expression of interest was dated 3 July 2013, and was before the Tribunal. The selection panel, he said, was comprised of Ms Hort and himself.

178. The panel assessed Ms Cameron’s application. In his statement, Superintendent O’Brien made a detailed criticism of her responses to the six selection criteria, demonstrating why they were deficient. He said that the preferred applicant demonstrated satisfactory or above satisfactory levels of competence in respect of all six criteria, and that her responses were of a higher standard than those of Ms Cameron. In cross-examination, he did not resile from that evidence. It was consistent with a document signed by him and by Ms Hort on 11 July 2013, detailing the reasons for culling the application of Ms Cameron and another applicant, and for preferring the successful candidate. We accept that evidence as accurate.

Ms Hort’s evidence

179. Ms Hort’s evidence was consistent with that of Superintendent O’Brien described above. She did not resile from it in cross examination, and we accept it as true.

Consideration and findings

180. Though neither the risk assessment conducted by Ms Hort nor its conclusions were relied on by Supt O’Brien as a ground for rejecting Ms Cameron’s application, having regard to the existence of the risk assessment and its conclusions, and to Supt O’Brien’s admissions that he was concerned about it, we consider it likely that the perceived risk of conflict between Ms Cameron and others in the workplace formed part of the grounds for declining her application.

181. That does not establish, however, that the decision to cull Ms Cameron’s application was made on the grounds of her disability or carers responsibilities, and we are not satisfied that it was. We are satisfied that the decision was made primarily because the panel members were unimpressed with Ms Cameron’s responses to the selection criteria. It is possible, and we think likely, that they also had regard to the risks Ms Cameron’s possible return posed to the equilibrium of the workplace. That is not evidence that they took into account Ms Cameron’s carers responsibilities or disability. We are not satisfied they did.

182. On the issue of differential treatment, Ms Cameron did not identify an actual comparator. For the same reasons as given above in relation to her application of 15 May 2009 for the GASO position, the successful applicant was not an appropriate comparator. With regard to a hypothetical comparator, Ms Cameron would have to show that she was treated less favourably than an applicant without her disability or carers responsibilities would have been treated in the same or not materially different circumstances – that is, an applicant who, like Ms Cameron, had been the subject of an adverse risk assessment and was assessed as not meeting the selection criteria, and was competing with a candidate who did. There is no evidence to support such a proposition. It is highly unlikely. The element of differential treatment is not made out.

183. The claim of direct discrimination on this ground fails.

(3)(viii) Application of 26 June 2014: Executive Officer and Roster Officer

Evidence of Supt O’Brien

184. Superintendent O’Brien said that the two positions of Executive Officer and Roster Officer at the Far South Coast Local Area Command were advertised as permanent full time positions on 5 June 2014 and 11 June 2014 respectively.

185. On 16 June 2014, Ms Cameron submitted a lateral transfer request in respect of both positions. He produced that request to the Tribunal, and a copy of the relevant Police Force Recruitment Guidelines. He said the Guidelines required him to determine, first, whether the financial and operational needs of the Local Area Command were best satisfied by recruitment on the basis of merit, offering the Executive Officer position to Ms Cameron, or other available methods of recruitment.

186. He said the EO position was the only administrative position which had responsibility for all internal, external, criminal and departmental complaint files, dealing with highly sensitive and confidential information on a daily basis, and dealing directly with him in relation to them on a daily basis. For that reason, he considered the interests of the Command were best served by obtaining the most competent candidate available. This was best achieved, he considered, by advertising the position, thereby widening the potential pool of candidates and facilitating a merit selection process.

187. He observed that, by the time Ms Cameron’s lateral transfer request was received, the position had already been advertised and had attracted applications. For that reason also, he considered it appropriate to continue the merit selection process for both positions.

188. Because he had determined that a merit selection process be adopted, and because that process was in progress by the time Ms Cameron’s lateral transfer request was received, he decided to decline the request for lateral transfer, and continue the merit selection process. It remained open to Ms Cameron to apply for the position in competition with other candidates, as part of that process.

189. Superintendent O’Brien admitted that, in making the decision to proceed with merit based selection, he had regard to the history of internal conflict and complaints at the Command prior to 2005, of which Ms Cameron had been part.

190. He said that the selection panel for the EO position consisted of himself and Ms Kay, and that she agreed to take over from him the function of convenor, as he lacked the time. Both panel members separately considered the written applications of 24 applicants, including that of Ms Cameron. They conferred by telephone and discussed the applications, in order to select candidates for interview and cull the remainder. Ms Cameron’s application was culled, he said, because she had responded well enough to some selection criteria, but in respect of the rest, she ‘did not show the level of competence required for the EO position, or she gave poor or old examples that were not particularly recent or relevant to the EO position applied for.’

Ms Kay’s evidence

191. Ms Kay’s evidence was confined to the EO position. She said that she was a member of the selection panel for the position of Executive Officer. She said it was a permanent position, advertised on 11 June 2013. The only other panel member was the convenor, Superintendent O’Brien. As he was pressed for time, the functions of convenor were in fact handled by Ms Kay. She said 24 applications were received, including one from Ms Cameron. They were discussed by the panel in a telephone conference on 10 July 2014. Each applicant had been required to respond to eight selection criteria. On the basis of the merit of those responses, five of the applicants were selected for interview, and the remainder culled. Ms Cameron was among the latter.

192. Ms Kay considered that, while Ms Cameron ‘responded soundly to some of the selection criteria, in other criteria her responses indicated only a borderline or general understanding of how the criteria related to the EO position and contained either insufficient examples or examples which were quite old (from 2007) or lacked relevance to the criteria’. Ms Kay gave some examples of this in her evidence, producing a copy of Ms Cameron’s application. She said the process of selecting applicants for interview, and the process of making a selection from among the applicants selected for interview, was done on merit.

193. Ms Kay conceded that the successful applicant for this Grade 6 position was ranked at Grad 1 only, but observed, “From my experience of convening selection panels it is not unusual for persons to be appointed to a position several grades above their substantive position if they have demonstrated merit to the required standards for the advertised position or they have particular knowledge or experience for a specific position (as was the case for the preferred applicant for the EO position).”

194. At no stage during the selection process, she said, was she aware that Ms Cameron had made a lateral transfer request, or had any disability or carers responsibilities.

Consideration and findings – EO position

195. Ms Kay’s evidence is consistent with that of Supt O’Brien, and not inconsistent with other evidence. We accept it as accurate.

196. There is no evidence that Ms Cameron’s disability, or her carers responsibilities, formed any part of the grounds for Superintendent O’Brien’s decision to adopt or continue the merit selection process, or to decline her application for lateral transfer, and we are not satisfied that that they did.

197. The risk assessment demonstrates that Superintendent O’Brien was aware of Ms Cameron’s health situation, and that she claimed to care for her son. However, there is no evidence that his decision to cull her application was made on the grounds of either of those considerations, and we are not satisfied that it was. On the contrary, we accept his evidence that it was based on his view of the respective merits of the applications under review.

198. There is no evidence that Ms Kay was aware of any disability or carers responsibilities on the part of Ms Cameron, and we accept her evidence that it formed no part of the grounds for her decision to cull Ms Cameron’s application.

199. For those reasons, we are not satisfied that the decisions to decline Ms Cameron’s lateral transfer request, or the decisions to cull her application for the EO position, were made on the grounds of her disability, or her carers responsibilities. The causation element is not made out.

200. Ms Cameron was not able to identify an actual comparator for the purposes of proving differential treatment. For the same reasons as given above in relation to her application of 15 May 2009 for the GASO position, the ultimately successful applicant was not an appropriate comparator. In respect of a hypothetical comparator, Ms Cameron would have to show that she was treated less favourably than an applicant without her carers responsibilities or disability would have been in the same or not materially different circumstances – that is, an applicant who was assessed as not meeting a number of the selection criteria, and was competing with one who met all of them. There is no evidence to support that proposition. It is highly unlikely.

201. The complaint of direct discrimination in respect of the Executive Officer position fails.

Ms Hepburn’s evidence – Roster Officer position

202. Ms Hepburn gave evidence about the selection process for the position of Roster Officer, which she said was advertised on 5 June 2014 as a permanent position. The selection panel consisted of Ms Bucknell as convenor, Mr Evans and herself.

203. Ms Hepburn said that Ms Cameron applied for the position on 26 June 2014. There were six other applicants. Of the seven applicants, five were selected for interview, including Ms Cameron. All applicants were asked the same questions at interview. Ms Hepburn said that Ms Cameron’s answers lacked the detail and complexity required by the panel. The successful applicant, on the other hand, demonstrated that detail and complexity in their answers. Unlike Ms Cameron, that applicant had recently been a Roster Officer, with 14 years’ experience.

204. She said that the panel members considered that Ms Cameron demonstrated the least suitability for the position of all applicants interviewed. By way of example, she noted the applicants had been required to identify errors in a roster. Ms Cameron identified some errors, but not as many as the other applicants.

Ms Bucknell’s evidence

205. Ms Bucknell also gave evidence of the selection process for the Roster Officer position. Her evidence was consistent with that of Ms Hepburn. She recalled that the panel had met to discuss the applications on 4 July 2014 at the Shoalhaven LAC, and that interviews were conducted on 17 July 2014.

206. Ms Bucknell denied any knowledge that Ms Cameron had any disability or responsibilities as a carer. She agreed that the position of Roster Officer was a Grade 5, and that the successful applicant had previously been a Grade 1 officer, while Ms Cameron was Grade 5/6. However, she said that the successful candidate had been relieving in a Grad 5 position as roster officer for five months, and that an officer’s grade, though relevant, was only one of many matters to be taken into account in the selection process. An officer’s grade, she said, reflected the complexity of their role, their financial delegation and level of knowledge expected. It did not demonstrate necessarily their proficiency or experience in relation to the role being considered by a selection panel.

205. Ms Bucknell denied any bias against Ms Cameron, and added that she was unaware of any bias on the part of any other panel member.

Consideration and findings – Roster Officer position

208. Reports of the selection process by Ms Hepburn and Ms Bucknell, prepared at the time, were before the Tribunal. The evidence of Ms Hepburn and Ms Bucknell is consistent with the reports, and is not contradicted by other evidence. We are satisfied their evidence is true, and make findings in accordance with it.

209. There is no evidence that Ms Cameron’s disability or carers responsibilities formed any part of the grounds for the decision to decline her application. We are not satisfied that they did. We are satisfied that the decision to decline her application was made entirely on the basis of the perceived merits of that application, including her performance at interview, when compared with the applications and performance of the other applicants selected for interview. Even if, contrary to our findings, Ms Hepburn had taken into account the perceived risk of conflict in the workplace posed by Ms Cameron’s possible return, that would not have infected her decision with a prohibited ground – namely, carers responsibilities or disability.

210. Ms Cameron did not identify an actual comparator for the purposes of proving differential treatment. For the same reasons as given above in relation to her application of 15 May 2009 for the GASO position, the successful applicant was not an appropriate comparator. To succeed in respect of a hypothetical comparator, she would have to show that she was treated less favourably than an applicant without her carers responsibilities or disability would have been in the same or not materially different circumstances – that is, an applicant whose answers at interview, like hers, lacked the required detail and complexity, and whose application overall was considered the least meritorious of all the applications, and who was competing with an applicant whose answers demonstrated the required detail and complexity, and who had recent experience as a roster officer. There is no evidence to support such a proposition. It is highly unlikely. The element of differential treatment is not made out.

211. For all those reasons, the complaint of direct discrimination on this ground fails.

(3)(ix) Application of 22 July 2014: General Administrative Support Officer (cadetship)

Supt O’Brien’s evidence

212. On 21 July 2014, Superintendent O’Brien said, the position of General Administrative Support Officer became vacant at the Far South Coast Local Area Command. The next day, and before the position was advertised, Ms Cameron submitted a lateral transfer request. Her request was before the Tribunal.

213. In accordance with the Recruitment Guidelines referred to above, Superintendent O’Brien said that he was required to consider how best to meet the financial and operational requirements of the Command. He also took into account the Police Force’s Workforce Equity & Diversity Strategic Plan (a copy of which he produced to the Tribunal) in consultation with Inspector Clarke, who had reviewed Ms Hort’s risk assessment on 7 December 2012. Sup O’Brien said that he concluded, in consultation with Inspector Clarke, that the position was suitable for inclusion in the JumpSTART Cadetship Program then being run by the Police Force.

214. The purpose of that program, he said, was to assist people under 25 years old who had the HSC or similar qualification to take up a career in the state government sector. He felt that his Command’s ‘community engagement goals, which are aligned to the wider NSWPF corporation community goals, would benefit from targeting local young persons in our regional environment.’

215. For these reasons, he said, he determined that the position should be included in the cadetship program, and he did not approve Ms Cameron’s request for lateral transfer. The position was subsequently advertised as part of the Cadetship program in about November 2014.

216. Superintendent O’Brien denied that his decision to decline the lateral transfer request of 22 July 2014 was in reprisal for her lodging the complaints the subject of these proceedings. He said he was at the time unaware of any such complaints.

217. It is not part of Ms Cameron’s case that the declining of her request constituted victimisation. Nevertheless, we make findings in accordance with this evidence of Superintendent O’Brien, as it is not inherently probable, and there is no evidence to the contrary.

Consideration and findings

218. As the position had not been advertised, there is nothing inherently unlikely about Supt O’Brien’s evidence as to the reasons for declining the application for lateral transfer, or for including the position in the JumpSTART Cadetship Program. Supt O’Brien did not explain why the decision to make the position available exclusively to persons under 25 years of age was not made before the position became vacant, but it is conceivable that a commander with responsibility for a region as large as the Far South Coast might not always make decisions in respect of administrative support positions ahead of time.

219. There is no evidence that Superintendent O’Brien or Inspector Clarke took the risk assessment into account when consulting with each other on making the position part of the cadetship program. That is not surprising, as the Roster Officer with whom Ms Cameron had come into conflict had now left. We are not satisfied that they took into account the risk assessment or its contents.

220. Even if they did take into account the risk assessment, that would show only that they took into account the potential for further conflict in the office, having regard to Ms Cameron’s history, and its potential impact on her and other employees. It would fall short of demonstrating that the grounds for the decision included her disability or carers responsibilities. We are not satisfied that the decision to decline Ms Cameron’s application, or to include the position in the cadetship program, was made on the grounds of carers responsibilities or disability.

221. Ms Cameron was not able to identify an actual comparator for the purposes of proving differential treatment. To satisfy that element by reference to a hypothetical comparator, she would have to prove that she was treated less favourably than an applicant without her disability or carers responsibilities would have been in the same or not materially different circumstances – that is, in circumstances where the Commander considered the position suitable for the cadetship program prior to it being advertised and earmarked it accordingly. There is no evidence to support such a proposition. It is highly unlikely. The element of differential treatment is not made out.

222. For all those reasons, the complaint of direct discrimination on this grounds fails.

(4) Victimisation – email of 8 August 2012

223. Ms Cameron complains that Assistant Commissioner Jenkins contravened section 50 of the Act by sending her a communication on 8 August 2012, and that Ms Adriaanse did so by sending her an email communication on 2 October 2012. The terms of section 50 are extracted above. Both emails were before the Tribunal.

224. On 8 August 2012, the Assistant Commissioner told Ms Cameron by email that he had been asked by the Commissioner to respond to her email of 3 August 2011, which was also before the Tribunal. That email had been addressed to another senior police officer, and contained an offer to settle a grievance which she had expressed against the police force. As the offer was made without prejudice, its terms were redacted from the copy before the Tribunal. From what remains, however, it seems that Ms Cameron was claiming that she had been bullied at the Far South Coast Local Area Command and inappropriately coerced into transferring to Sydney, and that in some way her employer had breached a duty of care to her.

225. No allegation was made by her in that email that she had been the subject of unlawful discrimination, or that any provision of the Anti-Discrimination Act 1977 had been breached. In response to questions put to her by the Tribunal, Ms Cameron answered that, prior to 12 September 2012, she had not made any complaints of discrimination or victimisation.

226. In his email of 8 August 2012, Assistant Commissioner Jenkins said that he understood ‘workplace relations issues you raised were taken seriously and addressed contemporaneously”. He noted that after her transfer to The Rocks LAC, Ms Cameron had successfully applied for a Clerk Grade 5/6 position at Aviation Services Branch, and was by then earning considerably more than she did as a support officer at Far South Coast Local Area Command. He urged Ms Cameron to work with her injury management adviser in order to achieve her return to work in her substantive position.

227. The Assistant Commissioner acknowledged ‘that you play a pivotal role in the support of your adult son and this has provided significant challenges for you in balancing your work responsibilities.’ He suggested she explore the possibility of taking advantage of flexible work options within her current command.

228. He noted that the GASO and EO positions to which she had sought lateral transfer were filled only temporarily because of their vulnerability to organisational change, and that support for her application would expose her to a risk of losing her permanent status. He said that permanent filling of the positions could occur after the Ministerial Audit on the Police Force had concluded, but considered this unlikely to ‘happen in the immediate to short term’. He continued:

“Notwithstanding, you remain eligible to apply for any position (permanent or temporary) that is advertised and I would strongly encourage you to not only consider Far South Coast but also surrounding Commands. You may also wish to consider opportunities in other Government agencies or indeed the private sector.”

229. He offered training assistance to help Ms Cameron apply more successfully for positions in future. He offered her access to various other support services within the Police Force, including financial advice, the Employee Assistance Program (which includes counselling services), and chaplaincy. He urged her to consider applying for positions at other surrounding Commands, or in other government agencies or the private sector. He said that if she were successful in transferring to the Far South Coast Local Area Command, she would need to demonstrate fitness for duty, and consideration would need to be given to ensure the health and wellbeing of other officers there. This appears to have been a reference to the prevention of further conflict.

230. Ms Cameron did not articulate precisely the detriment to which she alleged the email subjected her. On an objective basis, the email itself did not subject her to any detriment. On the contrary, it offered her assistance in improving her technique of applying for positions, and other assistance referred to above. It explained why a transfer to a temporary position was not currently in her best interests, it acknowledged the carers responsibilities she had for her son, it offered her an opportunity to meet with officers of the Injury Management and Workplace Relations and Equity Units, and encouraged her to return to work in her substantive position. All these, in our view, either offered Ms Cameron distinct advantages, or subjected her to no detriment at all. Similarly, the suggestion that she apply for jobs at other surrounding Commands, in other government agencies, or in the private sector, did not subject her to any detriment. The use of the word ‘surrounding’ indicates that the Assistant Commissioner was suggesting ways in which she might be able to work closer to home in Batemans Bay if she continued to be unsuccessful in her applications to transfer to the Far South Coast Local Area Command. We can identify no detriment to Ms Cameron in the making of that suggestion. It was intended to be helpful. The suggestion that she would have to demonstrate fitness for duty at the Far South Coast Local Area Command, and the implied suggestion that the Far South Coast Local Area Command would look to prevent any future conflict in the workplace, likewise do not suggest detriment. It goes without saying that any employee must demonstrate competency, and the avoidance of conflict is in the interests of all employees, including Ms Cameron.

231. We are not satisfied that a reasonable person would consider that the communication of 8 August 2012 subjected Ms Cameron to any detriment or threatened to do so. For that reason alone, the complaint of victimisation on this ground fails.

232. To succeed in an allegation of victimisation, Ms Cameron must also prove that the email was written on the ground that she had alleged that the Anti-Discrimination Act had been contravened, that she had done something under or by reference to the Act, or by reason that ‘the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them’: section 50(1).

233. Ms Cameron did not lodge a complaint with the Anti-Discrimination Board until the following year, on 25 February 2013. On her own evidence, she made no complaint of any kind regarding discrimination or victimisation before 12 September 2012. There is no evidence that Assistant Commissioner Jenkins was aware of any complaint, or potential complaint, or any threat to make a complaint of that nature, prior to issuing the email of 8 August 2012. We are not satisfied that the matters in his email of that date were written by him on any of the grounds prohibited by section 50.

234. In her evidence, Ms Adriaanse said she prepared a draft of the 8 August 2012 email for Assistant Commissioner Jenkins at his request. There is no evidence that she was aware of any such complaints, or potential complaints, or any threat of it, prior to preparing a draft. To the extent it is relevant, if any, she likewise did not prepare the draft on any prohibited ground.

235. For these reasons also, the complaint of victimisation in relation the email of 8 August 2012 fails.

(5) Victimisation – email of 2 October 2012

236. It remains to consider Ms Adriaanse’s email of 2 October 2012. In that email, Ms Adriaanse said that she was responding to Ms Cameron’s email of 25 September 2012 addressed to Assistant Commissioner Jenkins. That email was also before the Tribunal. In it, Ms Cameron had forwarded to the Assistant Commissioner a report dated 2 May 2005 from her rehabilitation provider, which she said demonstrated that she had been ‘bullied and intimidated by the Manager to Transfer’ (sic) to Sydney in 2005. In it, she referred to claims she was making at the “Tribunal and with the Ombudsman’s Office”.

237. In her email of 2 October 2012, Ms Adriaanse repeated Assistant Commissioner Jenkins’ suggestions that she consider applying for positions at surrounding commands, and in the government and private sectors. She also repeated his suggestions to take advantage of various assistances offered by the Police Force, including financial advice, the Employee Assistance Program and chaplaincy services.

238. Ms Adriaanse said, and we accept, that she prepared the email at the request of Assistant Commissioner Jenkins. She said she had been told that Ms Cameron wanted to transfer back to Batemans Bay, but that her applications for transfer to the Far South Coast Local Area Command had been unsuccessful to date. She said she was trying to be helpful in making suggestions about alternative ways of working in the area, and not trying to convince Ms Cameron to leave the Police Force. We accept her evidence in that regard.

239. Ms Adriaanse’s email takes the matter no further than the email of 8 August 2012. For the same reasons as above, Ms Adriaanse’s email subjected Ms Cameron to no detriment. On the contrary, it offered her assistance and, to that extent, an advantage. For that reason, the claim of victimisation on this ground also fails.

240. There is no evidence that the claims at the “Tribunal and with the Ombudsman’s Office” referred to in Ms Cameron’s email included any complaint of a breach of the Anti-Discrimination Act. Though Ms Cameron in her responding to the Tribunal’s questions (above) seemed to imply a complaint of some such nature by 12 September 2012, there is no evidence that Ms Adriaanse was aware of any such complaint, potential complaint, or threat to make one. We are satisfied that Ms Adriaanse wrote the email of 2 October 2012 at the request of Assistant Commissioner Jenkins. We are not satisfied that she did so on any ground prohibited by section 50.

241. For all these reasons, the complaint of victimisation by reason of Ms Adriaanse’s email of 2 October 2012 also fails.

Conclusions

242. For the reasons given, we are satisfied that Ms Cameron had both a disability and responsibilities as a carer for her son throughout he period of complaint.

243. We are not satisfied that, in declining her various requests for transfer back to Batemans Bay, her employer or any of its services or officers discriminated against her, by treating her less favourably than they treated or would have treated a person without her disability or carers responsibilities in the same circumstances or in circumstances that are not materially different.

244. We are not satisfied that any of her applications for transfer were decided on the ground of her disability or carers responsibilities.

245. We do not consider that Ms Cameron was subjected to a detriment by the email communications from Assistant Commissioner Jenkins and Ms Adriaanse dated 8 August 2012 and 2 October 2010s respectively.

246. We are not satisfied that either of those communications was made on any ground prohibited by section 50.

247. Accordingly:

1. the complaints of direct discrimination by reason of the respondent declining or failing to grant Ms Cameron’s various applications for transfer to the Far South Coast Local Area Command are dismissed, and

2. the complaints of victimisation by reason of the email communications dated 8 August 2012 and 2 October 2012 are dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 December 2016