CARLISLE and COMMISSIONER OF POLICE - [2012] WASAT 90

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: CARLISLE and COMMISSIONER OF POLICE [2012] WASAT 90

MEMBER: JUSTICE J ALLANSON (SUPPLEMENTARY PRESIDENT)

DELIVERED : 4 MAY 2012

FILE NO/S: EOA 11 of 2011

BETWEEN: COLIN CARLISLE
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Human rights - Discrimination - Direct discrimination - Ground of family responsibility - Whether prejudice to job application - Turns on own facts - Human rights - Discrimination - Indirect discrimination - Requirement of attendance at workplace - Requirement to attend workplace for 20% of work time - Turns on own facts

Legislation:

Equal Opportunity Act 1984 (WA), s 4, Pt IIA, s 35A(1), s 35A(2), s 35A(2)(a), s 35B, s 35B(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr TC Russell and Ms KA Jones

Solicitors:

Applicant: Self-represented
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165
Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
State Housing Commission v Martin [1998] WASCA 327
State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant claims that his employer has discriminated against him in his employment on the grounds of family responsibility between March 2007 and September 2009. He says there has been both direct and indirect discrimination in breach of s 35A(1), s 35A(2) and s 35B of the Equal Opportunity Act 1984 (WA) as follows:
1.indirect discrimination in refusing him the flexible work option of working from home due to the requirement or condition that he comply with a mandatory 20% attendance of his time working at a Western Australia Police workplace;
2.indirect discrimination in requiring him to comply with the requirement that he attend a workplace in the metropolitan area, when that requirement interfered with his ability to care for his wife;
3.direct discrimination by denying him access to a benefit associated with his employment, namely his request for flexible work options, on the basis of stereotypical assumptions about the nature of a full time carer's responsibilities; and
4.direct discrimination by prejudicing his application for a position in the Albany District Office of the Western Australia Police on or about 11 May 2009.
The Tribunal finds that Mr Carlisle has not established that he was required to comply with a requirement or condition which operated to disadvantage people with family responsibility in their employment. Further, he has not shown that the respondent's requirements were unreasonable in the circumstances. He has not established that his employer indirectly discriminated against him, contrary to the Equal Opportunity Act, in the manner alleged.
Mr Carlisle has failed to establish either of his claims of direct discrimination. He has not shown that the respondent treated him less favourably than, in the same or similar circumstances, it would have treated a person without the same family responsibility. Further, the Tribunal is not satisfied that the conduct of the respondent was on the ground of Mr Carlisle's family responsibility.
The Tribunal dismisses his complaint for the reasons set out below.

Family responsibility

The applicant's claim is based on discrimination on the ground of family responsibility.
The applicant's wife, Mrs Carley Carlisle, suffers from ill health. The applicant said the original condition from which she suffered was 'chronic perineal and axillary skin infections, increasing poor mobility, and asthma': see Statement of Facts Issues and Contentions (SFIC) at paragraph 24. In a medical report dated 28 August 2008, Dr Adams, (Mrs Carlisle's general practitioner in Denmark), gave the following history:

Date	Conditions
1 January 2005	Chronic perineal and axillary skin infections
9 April 2007	Defunctioning loop colostomy
18 April 2007	Chronic axillary ulceration
18 April 2007	Chronic perineal ulceration
18 April 2007	Failed split skin grafts perineum and axillae
19 December 2007	Urinary antiseptics prescription

Dr Adams reported that since the skin graft failure in April 2007 Mrs Carlisle had had a very protracted course with slow healing, huge ulcerated areas, and had spent a lot of time on her back. At the time of the report, Mrs Carlisle had a catheter in place.
The respondent did not admit the facts alleged in the SFIC at paragraph 24. But it is not in contest that, between 29 March 2007 and about April 2009, Mrs Carlisle's health was so poor that she required someone to care for her on a daily basis. During that period she underwent surgery at least once, and also suffered from postsurgical complications requiring wound management and other care. In his complaint to the Commissioner for Equal Opportunity, Mr Carlisle said that this required him to be continually present, although he would have been free during most of the day to carry out work for an employer, provided he could remain at home. The continuing need for daily care after May 2009 is not admitted. There is no medical evidence from this period.
The applicant did not call Dr Adams. Apart from the report referred to above, the medical evidence before the Tribunal is a series of notes from Dr Adams, beginning 14 June 2007, with the last in April 2009. They are generally headed 're Colin Carlisle', and sometimes include that he is carer for his wife. They address his inability to return to work, rather than Mrs Carlisle's medical condition. The notes do not deal with whether Mrs Carlisle's health, at any time, required her to reside out of the metropolitan area, or, specifically, in Denmark.
The first is dated 14 June 2007. It said that Mr Carlisle is 'functioning as a full time carer' and is expected to need to continue to do so for the next six weeks, after which Mrs Carlisle may be more self caring. On 2 August 2007, Dr Adams wrote that Mr Carlisle was still needing to function as his wife's full time carer for the next month. On 6 September 2007, Dr Adams said that Mrs Carlisle's illness was progressing more slowly than hoped; she still needed daily care from her husband at home as she was unable to do self caring activities, and that was anticipated to continue for 'most if not all of the rest of this year'. On 3 December 2007, Dr Adams wrote that Mrs Carlisle's need for constant care throughout the day would continue for the next three to four months. She continued:
If things go well there is a fair chance that Mr Carlisle will be able to leave his wife on her own for long enough to be able to return to work by April 2008. If things progress more quickly, he would be keen to return earlier.
On 13 March 2008, Dr Adams wrote that Mrs Carlisle was still not able to self care through the day and was not anticipated to be able to do so for at least the next six months. Mr Carlisle could leave her only for short periods of time. He would not be able to return to work 'on any regular basis' for at least six months.
On 28 August 2008, Dr Adams wrote that Mrs Carlisle was now improving to the extent that Mr Carlisle would be able to leave her alone during the day in the foreseeable future, anticipated to be the beginning of October 2008. Mr Carlisle could return to work provided that the work was near enough to Denmark that he could return home daily.
On 25 September 2008, Dr Adams wrote that Mr Carlisle still needed to be home caring for his wife, but should be able to return to work at the beginning of 2009.
On 1 April 2009, Dr Adams wrote that Mrs Carlisle could now be left on her own for the duration of each day, so Mr Carlisle would be able to return to work from after 14 April 2009. She continued that 'from a family friendly perspective' it would be better if he could work out of Albany as his wife was not well enough for him to be away for the week.
Dr Adams said nothing about Mrs Carlisle's need to remain in Denmark. There is no medical evidence after 1 April 2009.
In setting out the facts, I have found it difficult to maintain chronological order as there is some inconsistency in the evidence about when some things occurred. It is, however, convenient to divide events into three periods.

Up to 29 March 2007

Mr Carlisle was an employee of the Western Australia Police (WAPOL) from 1996. He is not a sworn police officer. In 2006 he was a level 3 public servant, located in the Perth area.
In 2001 Mr Carlisle and his wife purchased a property in Denmark. In 2004 they purchased two further properties there. They intended to relocate to Denmark on retirement. At this time they also had a home in the metropolitan region.
On 24 March 2006, Mr Carlisle's substantive position in WAPOL was abolished. From that time he was a redeployee. Mr Matthew Davis was the officer responsible for employees who were to be redeployed, and hence for the efforts to place Mr Carlisle in a new position. The relationship between Mr Carlisle and Mr Davis was strained from relatively early after Mr Carlisle became a redeployee. As early as May 2006, Mr Carlisle accused Mr Davis of 'veiled threats' and duress over attempts to place him in a new position. Mr Carlisle interpreted Mr Davis' conduct as bullying.
Mr Carlisle said that between March 2006 and March 2007, he tried to secure a substantive position within WAPOL. Alternatively, he wanted to be registered with the Public Service Commission as a redeployee, because this would have enabled him to gain priority access to substantive positions with other agencies.
The applicant actively pursued a transfer to the Great Southern Region from quite early in 2006, before his substantive position was abolished. In February 2006, while he was on holiday in the area, Mr Carlisle arranged to meet Superintendent Ross Tomasini, the then District Superintendent of the Great Southern Region. Mr Carlisle knew Superintendent Tomasini and had previously worked with him.
There was some inconsistency in the evidence about the meeting with Superintendent Tomasini. On the evidence of Superintendent Tomasini's diary, I am satisfied that the meeting took place in February 2006. Both the applicant and Superintendent Tomasini, however, could recall discussing the applicant's redeployment status, and he did not have that status until March. I accept Superintendent Tomasini's explanation that there was a subsequent telephone conversation, and the content of those two conversations had become merged.
Superintendent Tomasini was prepared to support Mr Carlisle in an attempt by Mr Carlisle to physically relocate to the Albany District Office, while performing work in his Police and Citizens Youth Club (PCYC) position in Perth by telecommuting. In effect, the Albany District Office could give him office space, if Mr Carlisle could arrange with his existing management to perform his PCYC duties from Albany.
Superintendent Tomasini told Mr Carlisle that he did not support an 'over strength' position at the Albany District Office. That is, he did not accept a proposal that Mr Carlisle have a position attached to or reporting to the Albany District Office, even if it was a temporary position. He said that there was not the level or quantity of work to justify taking on an employee at the applicant's level in the Great Southern District, even if there was the capacity to fund it.
Mr Carlisle further said that, in about May or June 2006, he approached his line manager, Senior Sergeant (now Inspector) Joanne McCabe, and her supervisor, Inspector Sharron Leonhardt, about his wife's health needs. He requested their assistance to vary his working arrangements so that he could be physically located in the Albany District Office. He said that both were supportive should he obtain the support of Superintendent Tomasini. Mr Carlisle said that he then met with Superintendent Tomasini who also agreed to support him. Mr Carlisle said this involved no redeployment issues as it was a matter of telecommuting in his current role.
The respondent denied that any such arrangement was discussed or supported by the relevant officers. The applicant's account cannot be entirely correct. He could not have had a discussion or obtained the support of Senior Sergeant McCabe as his line manager in May or June 2006, because she did not commence in that position until about September 2006. Inspector Leonhardt only commenced in her position in July 2006.
Inspector Leonhardt denied that a conversation as described by Mr Carlisle took place, or that he approached her with a proposal based on his wife's health needs. She could recall an informal conversation with Mr Carlisle, but it was much later, after November 2006. Inspector Leonhardt was then concerned, as was Senior Sergeant McCabe, that Mr Carlisle was commuting from Denmark , that is driving to Perth on Mondays and returning home on Fridays. Inspector Leonhardt saw this as a health and safety issue. She recalled Mr Carlisle saying that he was living in Denmark and that WAPOL was to find him a job down there. Her impression was that Mr Carlisle thought he was entitled to a job in or near Denmark as a right of his employment, and that he wanted to work from home. She said that during this discussion he asked whether there was any chance he could take his PCYC duties with him to Denmark. She told him to discuss the matter further with human resources. Inspector Leonhardt's recollection is that there was not enough work for the applicant to undertake a meaningful role working from home. Significantly, there was nothing in her conversation with him to suggest that Mr Carlisle's desire to work from home was then related to his need to care for his wife.
Mr Carlisle said that he had an even later conversation with Inspector Leonhardt, when he told her he wanted to work from home. He said they spoke about this after his wife had been flown up to Perth from Albany for surgery, that is, some time in April 2007.
Inspector Leonhardt did not agree there was a discussion in April 2007. First, Inspector Leonhardt recalls her concern about Mr Carlisle commuting. Second, Inspector Leonhardt does not recall any discussion of Mrs Carlisle's health needs, which I would expect to have been paramount in around April 2007, as Mrs Carlisle would then have been in hospital in Perth following urgent surgery. I am not satisfied there was a later discussion, after Mrs Carlisle was admitted to hospital. It is more likely that there was one discussion, and that occurred during the period when Mr Carlisle was commuting.
Senior Sergeant McCabe also recalled speaking to Mr Carlisle after she discovered that he was commuting from Denmark on a weekly basis. She said that her understanding was that the reason for his move to Denmark was that his wife's health would benefit from 'getting out of the city' or words to that effect. She said that Mr Carlisle did not elaborate on his wife's health in any greater detail. That is consistent with his comparative reticence on the subject in the course of these proceedings. Senior Sergeant McCabe said that to the extent that Mr Carlisle discussed his working arrangements with her, it was a general discussion about wanting to pick up work in Albany so he did not have to commute. She recalled no specific conversations. Mr Carlisle did not request, and she did not approve, any arrangement by which Mr Carlisle would carry out his PCYC duties from Albany.
Both Senior Sergeant McCabe and Inspector Leonhardt were prepared to support Mr Carlisle in his efforts to find work in Albany, but their support was not related to him carrying out his duties in the PCYC section from a remote location. That is, they were prepared to support him in his search for a different position.
It is hard to put a definite date on when Mrs Carlisle's health problems became serious. Mr Carlisle said that the move to Denmark in November 2006 was related to his wife's health, even if she did not then need daily care.
In February 2007, Mr Carlisle actively sought a public service position in the Great Southern Region. On 1 February 2007, he wrote by email to Mr Davis stating that he was fully committed to relocating at the earliest opportunity to the Great Southern Region 'as my wife and I have now established a home in Denmark'. The email contains no reference to his wife's health needs or his need to care for her. Mr Davis noted on that email, in handwriting, an agreement with Mr Carlisle that he would not refer vacancies in the metropolitan area that Mr Carlisle had no intention of committing to, due to his desire to relocate.
On 16 February 2007, Mr Carlisle again emailed Mr Davis, this time seeking confirmation that WAPOL would release him should he obtain a position with another agency in the Great Southern Region or Albany District Office. Again, there is no mention of his wife's health. Mr Carlisle said that, about this time, his manager (I assume Senior Sergeant McCabe) sought to formalise a flexible work option arrangement for telecommuting with the Albany District Office due to his family responsibilities and Mr Davis intervened and stopped it: applicant's SFIC paragraphs 34 - 35. I find that there was no arrangement made by Senior Sergeant McCabe. Further, the evidence does not support a finding that, at this time, Mr Carlisle needed to remain at home to care for his wife.
At 19 March 2007, and at all material times from then, WAPOL did not have a level 3 classified position in the Great Southern Region, and had no plans to create a level 3 position there. Mr Carlisle, however, continued his efforts to relocate. On 27 March 2007, Mr Carlisle prepared a memorandum to the Operations Manager, PCYC State Office, headed 'Redeployment Status and Reporting Relationship'. In the opening paragraph he refers to his designation as a redeployee and states this request:
As a result of this situation and the combination of matters impacting on my personal and family circumstance, I request that my line management relationship be now varied to allow me to report in future to Great Southern DO.
The reference to his personal and family circumstance is limited. Mr Carlisle said in the memorandum that he had established his home in Denmark due to reasons of his wife's health 'to better provide her with an environment more conducive to her wellbeing'. He said that his wife's mobility was highly limited, but not why, and that she received visits from a local nurse when he was away, but again not why. He said that it was a priority 'to permanently relocate at the earliest to the Great Southern Region'. He continued that by changing his reporting relationship to the Great Southern District Office, it would immediately enable him to provide more completely for his wife's needs on a daily basis. He then referred to the opportunity of 'a suitable office, post or position or scope for suitable employment' within the Great Southern Region.
Mr Carlisle gave this memo some importance, as the first occasion when, in writing, he requested flexible work arrangements. He contended that the memo outlined his need to vary his working arrangements from PCYC to the Albany District Office 'by reason of Carley's health needs and his family circumstances' (SFIC paragraph 39). It does not directly say that. Mr Carlisle, on this and other occasions, did not clearly state what he wanted. Senior Sergeant McCabe understood him to be asking for a transfer. In part, the memorandum also includes a request that WAPOL support an application to the Department of Premier and Cabinet for Mr Carlisle to be registered as a redeployee (that is, enabling him to be placed in a position in the public service generally, rather than leaving his placement to WAPOL). It may be that a request of this nature called for some follow up inquiries. But it was soon overtaken by events. On 29 March 2007, Mr Carlisle was contacted at work by his wife who told him that she was suffering serious difficulties. He returned to Denmark, and then later that week Mrs Carlisle was taken to Perth for emergency surgery.

From April 2007 to April 2009

Although Mrs Carlisle's health problems may have been longstanding, it was only following this surgery at the beginning of April 2007 that there is evidence that she was in need of constant care. Mr Carlisle said that from then until about May 2009, he could not have taken a position that required him to work outside the home due to his need to provide care. He said, however, that from late April 2007, he could have worked full time from home.
Mr Carlisle said that, in about April, he discussed his wife's position with Senior Sergeant McCabe and Inspector Leonhardt 'and how there was an even more serious medical necessity for changing his working arrangements to home based work'. The evidence of Senior Sergeant McCabe and Inspector Leonhardt, which I have referred to above and which I accept, does not support this claim.
Senior Sergeant McCabe said that, from April 2007, she spoke to Mr Carlisle occasionally and so did others. Mr Carlisle did not say that he wanted to work from home. Had he done so, she would have needed to consult with other officers regarding issues such as health and welfare, and security. She did not consult, because the request was not made. She understood from her conversations with Mr Carlisle that he did not want to work at all, because of his desire to care for his wife who, he said, needed constant care. During this period Senior Sergeant McCabe arranged for Mr Carlisle's annual leave (which had been due to commence in April 2007) to be converted to carer's leave, so that Mr Carlisle did not begin to expend accumulated annual leave until after his carer's leave entitlement was exhausted.
On 16 May 2007, the Executive Director of WAPOL, Mr Robert McDonald, sent an email to Mr Carlisle suggesting a meeting to discuss his case. The reason for the meeting is not stated in the email, other than in the most general terms. Mr McDonald said in evidence that it arose from Mr Carlisle's position as a redeployee, and that Mr Carlisle was one of two employees whom the department had not been able to place.
Because of his absence from any police work site, Mr Carlisle did not get Mr McDonald's email until June 2007. He replied by email on 5 June 2007. Mr Carlisle and Mr McDonald spoke by telephone in June. The two parties' recollections of what was discussed diverge widely, although it seems to be common ground that they discussed options for Mr Carlisle to relocate to the Great Southern Region, either as a WAPOL employee or with another agency.
Mr Carlisle said that he told Mr McDonald of his need to provide for his family financially, and the likely costs of providing for his wife's medical needs. He said that he reiterated that he needed to work from home and explained that he could put in the hours required. He said that Mr McDonald undertook to explore all options to provide him with access to suitable work.
Mr McDonald has poor recollection of the conversation, but denied that it was in those terms. He remembered that Mr Carlisle told him his wife was unwell, but not that she was bedridden. He recalled that Mr Carlisle wanted to work in the Great Southern Region, so as to be able to go home at lunch time. He did not recall Mr Carlisle saying that he said he needed to work from home.
Following their conversation, Mr McDonald wrote to Mr Carlisle stating that he was keen to assist him to achieve a transfer to a position closer to Albany, but it was difficult because WAPOL had no level 3 opportunities in the Great Southern District. He encouraged Mr Carlisle to look at opportunities outside WAPOL and offered financial assistance to have a résumé for Mr Carlisle professionally written, and to arrange for WAPOL human resources to forward it to all Western Australia public sector agencies within the Great Southern District.
I am not satisfied that Mr McDonald and Mr Carlisle discussed options to enable Mr Carlisle to work from home. First, it does not accord with the letter written by Mr McDonald after the meeting, and I accept that the letter would have been very different if the discussion had been about flexible work options, particularly if Mr Carlisle had repeatedly requested that he be permitted to work from home. Second, Mr Carlisle did not respond to the letter in any way to suggest that Mr McDonald had misstated the effect of that meeting. Third, on the medical evidence in June 2007, there would not have been an expectation that Mrs Carlisle's recovery would be as slow and difficult as it proved to be. Dr Adams' note of 14 June 2007 speaks of six weeks before Mrs Carlisle would become more self caring.
On 22 June 2007, Mr Scully of the PCYC State Office spoke to Mr Carlisle as a health and welfare check. He reported to Senior Sergeant McCabe that Mr Carlisle had told him that his wife was progressing, and the doctor had advised that she would need care at least until the end of July when her health situation would be reviewed.
On 9 August 2007, Mr Scully spoke to Mr Carlisle. He recorded in an email to Senior Sergeant McCabe that he had: advised Mr Carlisle that he had used up all of his personal leave and was starting to use his annual leave; and he informed Mr Carlisle of his entitlements, being five weeks of annual leave and a week of long service leave plus one public service holiday. Mr Carlisle 'requested his leave continue to be used up at the normal rate'.
On 16 October 2007, Senior Sergeant McCabe sent an email to Personnel Services regarding Mr Carlisle's position, together with a memo Mr Carlisle had sent requesting leave without pay to continue to care for his wife. Senior Sergeant McCabe supported Mr Carlisle's leave application.
On 3 November 2007, Mr Carlisle again applied for leave without pay for the period 26 October 2007 to 20 January 2008.
There is little evidence before the Tribunal covering the major part of 2008 and into early 2009. I am satisfied that during this period, Mr Carlisle made no applications or enquiries about either working from home or any other work option. Other than infrequent contact with Ms Lara Rushton (a payroll officer with WAPOL Personnel Services), Mr Carlisle did not recall any contact being made with him about his family circumstances or employment options, but nor did he make any contact with his employer.

From April 2009

On 9 April 2009, Mr Carlisle wrote to Ms Rushton. He referred to the latest report from Dr Adams, dated 1 April 2009, and the fact that he had needed to provide 'constant daily care and support' to assist in his wife's recovery. He said that he had been the primary caregiver to his wife throughout the whole of the period since he originally applied for leave without pay, and continued '[i]t is only now that Carley's condition has improved to that where I will be able to return to work and as advised I anticipate this should occur on Monday 4 May 2009'.
On 3 May 2009, Mr Carlisle emailed Ms Rushton advising that his return to work had been delayed for a couple of weeks.
On 20 April 2009, Mr Davis spoke to Mr Carlisle. They spoke about a level 4 position that had been advertised in the Great Southern District. Mr Carlisle said that he told Mr Davis that his financial position was desperate.
On 8 May 2009, Mr Carlisle emailed Mr Davis, referring to their telephone conversation, and advising that he had applied for the position and had been selected for an interview on 11 May, 'so I remain hopeful'. Mr Carlisle continued to the effect that one of the jobs in the metropolitan area in which he could be placed could surely be done from Albany, with the only variation being the relocation of a work station. He advised that he would 'as a redeployee resident in Denmark' report for work to the Albany District Office on 18 May 2009. Mr Carlisle circulated the email of 8 May 2009 to Superintendent Dene Leekong, who was then District Superintendent for the Great Southern Region, and who was to chair the selection panel for the level 4 position.
On 11 May 2009, Mr Davis responded, also forwarding his response to Superintendent Leekong and Ms Rushton, to the effect that placement as an over strength redeployee at the Albany District Office was not approved. He advised Mr Carlisle that he was not to commence at the Albany District Office unless formally authorised. He advised Mr Carlisle that he would remain on leave without pay until he accepted a placement in the Perth metropolitan area and commenced there; accepted a placement in the Perth metropolitan area and gained approval from that work area to work from home in accordance with relevant policies; gained an opportunity with WA Police at a lower level at which he could be placed in the country (stressing that this was voluntary); or accepted an alternative position with WAPOL or another employer through promotion, appointment or transfer. He wished Mr Carlisle all the best for his interview.
The email from Mr Davis did not include, as an option, that Mr Carlisle accept a placement in the Albany District at his substantive level. But there were no level 3 positions in the district.
Mr Carlisle complains of this email, and in particular that it was circulated to Superintendent Leekong. As a particular of direct discrimination he asserts that Mr Davis 'went out of his way' to prejudice his application for the position he had applied for by discussing his situation with an interview panel member, sharing his concerns about Mr Carlisle's ability to do the job due to ongoing family responsibilities, intimating that Mr Carlisle would probably want or need to work from home, and declaring that he would make sure Mr Carlisle would not be employed in the Great Southern District under any circumstances.
Superintendent Leekong made a witness statement in relation to the interviews which took place on 11 May 2009 and gave oral evidence. He said that the successful applicant was an acting level 6 employee with another department, who was prepared to drop to level 4 because she needed to move to Albany for family reasons. The fact that Mr Carlisle wanted to work from home would not have been a problem as the position would allow an employee to perform some duties from home, perhaps up to three days a week. Mr Carlisle did not get the position because there was an outstanding applicant. Superintendent Leekong also said he took no notice of either Mr Carlisle's email, or Mr Davis' response to it.
On 11 May 2009, Mr Davis forwarded to Mr Carlisle a flexible work options information kit. I infer that they had earlier spoken of flexible work options.
On 20 May 2009, Mr Davis recorded in a hand written note that he had been advised by Inspector Leonhardt that Mr Carlisle had called and told her 'that as his line manager [Mr Davis] need[s] to find him a placement … he requested to be found work at Denmark or Albany or work from home for 6 2 months'.
Mr Carlisle said that in various telephone conversations after 18 May 2009, Mr Davis told him that he was not considered for flexible work options because he refused to leave Denmark and could not comply with the policy to spend 20% of his time in the office. Mr Davis said, in his statement, that if he had any discussions with Mr Carlisle about the policy, they would have been very general. The decision as to whether Mr Carlisle could work from home was not his, but was to be made by Mr Carlisle's manager, should he accept a placement. I accept that an arrangement for working from home was not precluded by Mr Carlisle being a redeployee, and he did not need to accept a substantive placement to be considered for flexible work options. But he did need to have a position, even if it was an over strength position, where his manager agreed that working from home met the relevant criteria and agreed to such an arrangement.
Around July 2009, it became apparent that the most recent part of Mr Carlisle's leave without pay, in fact from 13 October 2008, had not been authorised. Inspector Leonhardt had not approved leave without pay at the time because Mr Carlisle was no longer in a position that reported to her. Mr Ferguson, Director of Human Resources, approved the period of leave without pay from 13 October 2008 to 30 July 2009.
On 30 July 2009, Mr Carlisle advised that he was available from 3 August 2009 to resume work in the metropolitan area, and he and his wife would be staying near Perth with his son. On 31 July, Mr Davis responded that there was a temporary opportunity within police licensing services. Mr Carlisle attended work on 3 August 2009. On 10 August 2009, however, Mr Carlisle advised the licensing enforcement division that he was not coming to work because his wife was ill, and they were in Denmark.
On 19 August 2009, Mr Carlisle wrote to Mr Ferguson regarding access to flexible work options. The letter is long and unfocused. In it, Mr Carlisle argued that he had suffered discrimination on the grounds of family responsibility, stemming back to his original request on 27 March 2007. In particular, he accused Mr Davis of unlawful discrimination and victimisation. Mr Carlisle requested flexible work options 'in telecommuting, working from home or, in the alternative, over strength in the Great Southern District' to facilitate returning Mrs Carlisle to Denmark. He did not identify any position where such work alternatives would be available.
More generally, there is no evidence before the Tribunal that there was, or is, such a position. Mr Carlisle appears to believe that WAPOL is large enough to, and had a responsibility to, find or create a position that would enable him to live in Denmark and care for his wife there.
On 21 August 2009, Mr Carlisle presented another memorandum on the subject of ad hoc flexible work options, with working from home in Denmark as a first preference, to commence immediately. This memorandum was addressed to the Officer in Charge, Licensing Services, where Mr Carlisle was then placed. It specifically addressed the criteria for flexible work options, including hours of duty, home office and work station, availability and flexibility, business needs and service delivery standards. Mr Carlisle said:
As indicated elsewhere, I am prepared to offer a number of flexible work options to meet both the business needs of the unit and my personal responsibilities and these would include:
•working any combination of days between a satellite office and home; and
•availing myself should there be a need to be contacted outside the prescribed hours of work.
On 24 August 2009, Detective Inspector Gage, the officer in charge of Licensing Services, requested further information from Mr Carlisle's manager, Detective Senior Sergeant Atkins. Referring to the position Mr Carlisle then occupied, Inspector Gage said '[i]t is quite clear from duties that this can not be done remotely as there is a need to be on site to fulfil all of the requirements'.
On 25 August 2009, Detective Senior Sergeant Atkins sent a memorandum to Mr Carlisle with queries regarding his application, including a request that Mr Carlisle review the position description for the position that he held, in line with his application. He referred to Inspector Gage's comment and asked if Mr Carlisle could provide an 'alternative and substantiated view'. There is no evidence that Mr Carlisle responded.
On 25 August 2009, Mr Ferguson responded to Mr Carlisle's letter of 19 August 2009. He wrote that WAPOL did not have a suitable position available in the Denmark area, and nor had it been able to identify a suitable position in which the applicant could work from home. Every vacant position at the applicant's substantive level had been referred to him for consideration. Mr Ferguson advised Mr Carlisle that his options were to take a position within WAPOL, most likely in the metropolitan area, and apply for flexible work options, which would be assessed based on job requirements, business needs of the unit and family circumstances. Alternatively, he could look outside WAPOL. Mr Ferguson advised that the department was not able to create a position to meet the personal needs of employees.
On 7 September 2009, Mr Davis referred Mr Carlisle to a level 3 vacancy in Joondalup. Mr Carlisle responded that he would not be able to travel, at most, beyond 30 to 45 minutes from Spearwood and would not consider anything like Joondalup. Mr Davis responded that he would forward opportunities as they arose.
Mr Carlisle complained to the Commissioner for Equal Opportunity on 17 September 2009.

Events after the complaint

While the period after 17 September 2009 falls outside Mr Carlisle's complaint, some of the later events throw light on the earlier period.
On 29 September 2009, Mr Davis circulated a request to other government agencies asking whether there was any potential to place Mr Carlisle on a permanent or long term temporary basis within the Great Southern District, with the department offering to assist with funding if a trial period was required.
In 2010, Mr Carlisle took a newly created position in the Contracts and Commercial Services Section, still as a redeployee. He was advised by Mr Ferguson on 15 February 2010, before he commenced in the position, that the manager of that area was solely responsible for determining whether he could undertake duties in a flexible work arrangement, such as from a satellite location. Mr Carlisle advised that he would not take the position unless he was given a written undertaking that access to flexible work options would be approved. On 25 March 2010, he advised that he had not accepted the offer of a placement in the section.
In April 2010, Mr Carlisle was placed in the Freedom of Information Branch.
He has since found a position, outside WAPOL, in the Great Southern Region.

The legislation

The Equal Opportunity Act 1984 (WA) (EO Act) prohibits discrimination on the ground of family responsibility or family status. The definition of family responsibility and family status is found in s 4 of the EO Act.
family responsibility or family status, in relation to a person, means -
(a)having responsibility for the care of another person, whether or not that person is a dependant, other than in the course of paid employment; or
(b)the status of being a particular relative; or
(c)the status of being a relative of a particular person;
The relevant provisions are then found in Pt IIA. Under s 35A of the EO Act:
Discrimination on the ground of family responsibility or family status
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of family responsibility or family status if, on the ground of -
(a)the family responsibility or family status of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same family responsibility or family status as the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who does not have such a family responsibility or family status.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.

Under s 35B(2) of the EO Act:
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibility or family status -
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the access of the employee, to opportunities for promotion, transfer or training or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.

Findings

Direct discrimination

The first part of the claim of direct discrimination under s 35A(1) alleges that the respondent denied him access to a benefit 'namely his request to [flexible work options] either by working from home, or by reporting to the [Albany District Office] during the relevant period': SFIC paragraph 88. The relevant period is said to be between March 2007 and September 2009.
The elements of discrimination under s 35A(1), as they would apply in this case, are:
1.WAPOL treated Mr Carlisle less favourably than, in circumstances that are the same or not materially different, it would treat an employee who did not have responsibility for the care of another person;
2.WAPOL treated him less favourably on the ground of his having that responsibility, or because of a characteristic that persons who are responsible for the care of another have, or because of a characteristic that is imputed to persons who have the care of another;
3.The less favourable treatment was in the terms or conditions of employment offered to Mr Carlisle, or by denying or limiting his access to opportunities for transfer or any other benefits associated with employment, or by subjecting him to some other detriment.
A reference to the doing of an act on the ground of a family responsibility includes a reference to the doing of an act on the ground of two or more matters that include family responsibility, whether or not family responsibility is the dominant or substantial reason for the doing of the act.
In order to determine whether Mr Carlisle was treated less favourably than another employee would be treated, the EO Act calls for a comparison. The Tribunal must compare the treatment offered to Mr Carlisle (as a person with family responsibility) and the treatment that would be given to a person without that responsibility. Further, s 35A(1) of the EO Act requires that the circumstances attending the treatment given to Mr Carlisle must be identified. What must then be examined is what would have been done in those, or not materially different, circumstances if Mr Carlisle did not have family responsibility: Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [223] (Gummow, Hayne and Heydon JJ).
If I find that Mr Carlisle was treated less favourably than another employee in the same or not materially different circumstances, the next question is why was he treated as he was: Purvis at [236].
On the complaint before the Tribunal, the first question is whether a person without family responsibility would have been granted flexible work arrangements, that is, working from home or reporting to the Albany District Office, in the same or not materially different circumstances. There are, on the findings I have made, two relevant periods.
With respect to the first period, I find that, from 29 March 2007 until around May 2009, Mr Carlisle was at home caring for his wife as a result of her medical problems following surgery. During this time he requested, and was granted, first, the full extent of his accrued leave entitlements, including long service leave, sick leave, annual leave and carer's leave; then, on those entitlements being exhausted he was granted leave without pay. Senior Sergeant McCabe said that based on various matters including her conversations with Mr Carlisle, she understood that Mr Carlisle did not want to work at all due to his desire to care for his wife. I am satisfied that her understanding was correct. Mr Carlisle has shown that he was an employee who was aware of his entitlements, and was not shy in demanding them. I am satisfied that he did not request access to flexible work arrangements over a period of more than two years. I find that he did not request that he be able to work from home, or telecommute from an office closer to Denmark, but requested that he be granted leave.
Further, I am not satisfied that there was a position, either in the Albany District or elsewhere, which could have been filled by a resident of Denmark. I am not satisfied that WAPOL would have treated any one else differently. That is, in the circumstances described, a person without family responsibilities would not have been treated more favourably.
There is also the later period, from when Mr Carlisle indicated that he could return to work in about April 2009 until his complaint in September 2009. Mr Davis forwarded to Mr Carlisle the flexible work options information on 11 May 2009. It is likely that they spoke about those options, including working from home, before the kit was forwarded. On about 20 May, Mr Carlisle made a request to Inspector Leonhardt that he be found work at Denmark or Albany, or that he work from home for six to 12 months. The request may have been informal, but it was concrete enough for her to advise Mr Davis. Later, in August, Mr Carlisle made a more formal approach, first in his letter to Mr Ferguson of 19 August 2009, and then in the memorandum to Inspector Gage dated 21 August 2009.
In order to carry out the comparison required by the EO Act, the relevant circumstances must be identified: Mr Carlisle was a long standing employee, who had gone onto redeployment when his substantive position was abolished in 2006; he had moved his family home to Denmark when he did not have a position in the department in the Great Southern Region, and when there were no positions at his level (vacant or otherwise) in the Region; he did not currently occupy a position that has been shown to be one that could be carried out either from home or from a remote office; there is no evidence that there was such a position available. Mr Carlisle has not shown that he would have been permitted to work from home, or a remote office, or transferred to the Great Southern Region in those circumstances had he not had family responsibilities, or that another employee without family responsibilities would have been more favourably treated.
The question of why Mr Carlisle was treated less favourably does not arise.
The second allegation of direct discrimination is that Mr Davis interfered with Mr Carlisle's application for a post in the Albany District Office in May 2009: SFIC paragraph 88.
The same questions must be addressed. What are the relevant circumstances, and was Mr Carlisle treated less favourably than a person who did not have family responsibilities would have been treated.
The relevant circumstances are that Mr Carlisle had applied for, and been granted an interview for, a position in the Great Southern District. He told Mr Davis by email that that he had been selected for an interview for the position, and also that he would 'as a redeployee resident in Denmark' report for work to the Albany District Office on 18 May. Mr Carlisle sent the email also to Superintendent Leekong, the District Superintendent for the District and the chair of the interview panel for the vacant position.
On the evidence, I am satisfied WAPOL would have acted the same way if Mr Carlisle had no family responsibilities, or in relation to another employee without family responsibilities: it would have instructed the employee not to attend the Albany District Office, and would have advised the employee of his options in the way that Mr Davis advised Mr Carlisle in his email of 11 May 1999.
Mr Carlisle specifically complained that the email referred to the possibility that he might obtain a position and then gain approval to work from home, and thereby prejudiced his application. I do not believe that the advice in the email can properly be characterised as, in some way, limiting Mr Carlisle's opportunity for a benefit or subjecting him to a detriment. Mr Carlisle complained that the email from Mr Davis was 'offensively strident', and expressed concerns that he would be unable to do his job properly due to family responsibility, and jeopardised his chances of selection. None of these complaints is supported by a fair reading of the email.
Again, as I am not satisfied that Mr Carlisle was treated unfavourably, the question of why does not arise. I am, however, satisfied that Mr Davis sent the email, and copied it to Superintendent Leekong, because the applicant had said he would attend at Albany District Office for work on 18 May, and had copied his email to the Superintendent. Mr Davis acted as he did because it was not an approved arrangement, and not because of Mr Carlisle's family responsibility.
The applicant has not, in any event, shown that he suffered any detriment from the email. Superintendent Leekong said that he had no regard to either the email from Mr Carlisle or that from Mr Davis. I accept that evidence, because I accept his explanation for why he did not as neither email was directed to him, and he was being included in correspondence about an administrative matter that should have been dealt with by others. He left it to others.

Indirect discrimination

The elements of discrimination under s 35A(2) of the EO Act are:
1.WAPOL required Mr Carlisle to comply with a requirement or condition;
2.A substantially higher proportion of persons 'not of the same family responsibility' as Mr Carlisle would comply or be able to comply with that requirement or condition;
3.The requirement or condition is not reasonable having regard to the circumstances of the case; and
4.Mr Carlisle is not able to comply with the requirement or condition.
Indirect discrimination occurs where a requirement or condition is apparently neutral and applicable to all equally, but in fact operates to disadvantage a particular group or groups.
The concept of a 'requirement or condition' in equal opportunity legislation should be given a broad rather than a technical meaning: State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at [63] (Gummow, Hayne & Crennan JJ); Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters) at 393 (Dawson & Toohey JJ).
The respondent's human resources policies provide for home based work arrangements. Its Human Resources Manual, in a section headed 'Flexible Work Practices, Home Based Work Guidelines, HR9.2.2.1', provides that applications for a home based work agreement are to be evaluated on a case by case basis, having regard to the nature of the work to be undertaken, operational requirements, the ability of the applicant to work autonomously, suitability of the home office, and whether existing resources owned by the applicant can be used in establishing the home office.
A further guideline states:
In order to maintain communication ties and knowledge and awareness of organisational and workplace issues, home based work employees must:
•spend at least 20 percent of their time at their headquarters. This may be as rigid as a specific day per week or as flexible as any two days per fortnight but this should be specified in the Home Based Work Local Agreement;
•attend branch meetings and planning days; and
•meet regularly with their manager/supervisor and other workplace employees to discuss work progress and other relevant issues.
Mr Carlisle submits that he was denied the flexible work option of working from home due to the requirement or condition of 20% attendance at the workplace. I am satisfied that the guideline can constitute a requirement or condition in the relevant sense.
The second question is whether Mr Carlisle was required to comply with that requirement or condition. In that regard, as I have found, he made no application to work from home during the substantial period between March 2007 and May 2009 when he was caring for his wife full time.
Before he returned to work, he gave notice in his email to Mr Davis on 8 May 2009 that he intended to attend at the Albany District Office. Further, when on his return to work in 2009 he applied for flexible work options, in his application of 21 August 2009, Mr Carlisle offered the option that he 'work in any combination of days between a satellite office and home and availing myself should there be need to be contacted outside the prescribed hours of work'. There was not, on the evidence, any occasion when a decision was made applying the 20% guideline to Mr Carlisle's case.
The next question is: would a substantially higher proportion of persons 'not of the same family responsibility' as Mr Carlisle comply or be able to comply with the relevant requirement or condition? This requires a comparison between two groups of people by reference to the alleged discriminating conduct. It requires the Tribunal to determine the base group for the comparison, that is, the group that will permit a calculation that will reveal whether family responsibility, rather than something else, influences the number of complying people without family responsibility as compared with the number of complying people with family responsibility. The base group that is appropriate for that exercise will vary according to the context in which the condition or requirement is imposed: Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 177 178.
The comparison cannot be done intuitively, and without evidence. There is no evidence before the Tribunal about what number of persons with the responsibility to care for a family member can comply with a requirement of 20% attendance at the workplace; and what number of persons who do not have that responsibility are able to comply. There is also no evidence to enable the Tribunal to ascertain the relevant base group for the purpose of calculating the proportions called for by s 35A(2). In the absence of such evidence, the Tribunal can make no finding whether a substantially higher proportion of persons without Mr Carlisle's family responsibility could comply with the requirement or condition.
The question of whether the requirement or condition is reasonable requires a balancing test, such as that referred to in Waters, in which all the circumstances are to be taken into account. And, as Gleeson CJ said in Purvis at [7], the Act deals with discrimination in a normative, not a value-free, context. It is concerned with discrimination of a kind that the legislature regards as unjust, and makes unlawful.
In Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [115], Sackville and Stone JJ said:
The appellants did not submit that the primary judge had erred in stating the principles to be applied when determining whether a requirement or condition is not reasonable having regard to the circumstances of the case (DD Act, s 6(b)). As his Honour remarked, the principles are now well settled: see Victoria v Schou (2004) 8 VR 120, per Phillips JA (with whom Buchanan JA agreed). They include the following:
(i)The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there;
(ii)The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles[1989] FCA 342; (1989) 23 FCR 251 at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82-83, per Lockhart J.
(iii)The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62, per Heerey J; Commonwealth Bank v HREOC, per Sackville J; and
(iv)The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition: Waters v Public Transport Corporation, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383‑384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, per Beaumont J; Victoria v Schou (2004) 8 VR 120, per Phillips JA.
Mr Ferguson and Mr McDonald both gave evidence that the requirement of 20% was not simply a matter of attendance, but related to team participation in branch meetings and planning sessions, isolation, training and development, and career development. This explains some of the reasons for the policy. The respondent did not put on further evidence about the reasonableness of the policy. But there was no evidence to the contrary, and no evidence to support a positive finding that the requirement or condition was not reasonable.
At times it appeared that Mr Carlisle's real complaint was not that he was required to attend 20% of his time in the workplace, but that he was required to take a placement in the metropolitan area, before he could access flexible work options. As I understood his evidence, had he been located in the Albany District Office, at least in 2009, the 20% attendance requirement would not have been a problem. Although this aspect of the complaint was not set out in Mr Carlisle's SFIC, it was, in my opinion, part of the complaint Mr Carlisle made to the Commissioner for Equal Opportunity.
But again, there is no evidence on which I can calculate the proportion of persons who comply or are able to comply with a requirement of obtaining a position in the metropolitan area, and make the comparison required by s 35A(2)(a).
The opportunity to obtain flexible work arrangements required Mr Carlisle to have a position which could then be assessed for its suitability regarding working from home, or working from a satellite station. That requirement has not been shown to be unreasonable. The evidence is that there was no level 3 position in the Great Southern Region. In the circumstances, there was no alternative but for that position to be in the metropolitan region.
The final question is whether Mr Carlisle did not comply, or was not able to comply, with either requirement. It would not be sufficient that Mr Carlisle chose not to comply with the requirement: State Housing Commission v Martin [1998] WASCA 327. It is difficult in this case to separate this issue of 20% attendance, from the question of where the workplace was to be. On the evidence, Mr Carlisle, at least from May 2009, would have been able to attend 20% of his time at the workplace but for his determination to live in Denmark. Ultimately, the question does not arise. Mr Carlisle has not shown the requirement was discriminatory, even if he did not or could not comply with it.

Conclusion

For these reasons, I would dismiss the application.

Order

1.The application is dismissed

I certify that this and the preceding [116] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J ALLANSON, SUPPLEMENTARY PRESIDENT