Coleman v Commissioner of Police

[2001] NSWADT 34

CITATION:	Coleman -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 34
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Keith Coleman RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	991080
HEARING DATES:	26/06/2000 27/06/2000 07/08/2000
SUBMISSIONS CLOSED:	08/07/2000
DATE OF DECISION:	03/02/2001
BEFORE:	Rees N - Judicial Member; Antonios Z - Member; Taksa L - Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Police Service Act 1990 Sex Discrimination Act 1984 (Cth)
CASES CITED:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Director General of Education v Breen [1982] IR 93 X v Commonwealth of Australia (2000) 74 ALJR 176 Commonwealth Bank of Australian V Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Alexander v Hone Office [1988] 1 WLR 968
REPRESENTATION:	APPLICANT C Ronalds, barrister RESPONDENT G Giagos, barrister
ORDERS:	1. Within 28 days of the date of these orders the respondent is to:; (a) carry out his requisite and usual ethics and conduct enquiries to determine whether the complainant is eligible for promotion to position 98/652.; (b) in the event that the complainant satisfies the respondent's requisite and usual ethics and conduct standards take all necessary steps to appoint the complainant to position 98/652; (c) pay to the complainant damages of $6,500; (d) pay the complainant's costs of these proceedings on a party/party basis; 2. In the event that the parties are unable to agree on the quantum of costs this amount is to be determined pursuant to Division 6 of Part 11 of the Legal Profession Act 1987 by a costs assessor appointed by the Registrar; 3. Both parties have liberty to apply to the Tribunal in relation to the operation of these orders.

1 In this case the complainant, Senior Constable Keith Coleman, has alleged that his employer, the Commissioner of Police (the respondent), unlawfully discriminated against him on the ground of disability when the respondent declined to promote him to a position within the NSW Police Service for which he had applied.

2 The case was heard by the Tribunal in Sydney on 26 and 27 June and 7 August 2000. Both parties were represented by counsel : the complainant by Ms Ronalds and the respondent by Mr Giagos.

3 In the paragraphs which follow we have set out the history of these proceedings, the evidence adduced at the hearing, the submissions by the parties and our reasons for deciding this matter in favour of the complainant and making consequential orders.

B. History of the Proceedings

4 The history of this case may be briefly stated. On 15 June 1999 the complainant lodged a complaint under the Anti-Discrimination Act 1977 (the Act) with the President of the Anti-Discrimination Board (the President) in which he alleged that the respondent discriminated against him on the ground of his disability when he failed to promote him to an advertised position. The complainant alleged that he suffered a back injury, which was not work related, in December 1991. This injury caused him to miss a considerable amount of work and in July 1993 he had a laminectomy operation. The complainant returned to work shortly after this operation. In June 1996 a police medical officer, Dr Sharp, examined the complainant and declared that there should be permanent restrictions on the duties which the complainant could perform for the NSW Police Service.

5 The complainant stated in his letter to the President that in May 1998 he had applied for an internally advertised position identified as “Sergeant. Job Stream – Supervisor – Intelligence – (JSR NO. 11). Location : Coffs/Clarence (Ref No. 98/652)”. He alleged that despite being advised by a member of the selection panel that he “had won the selection based on merit” he subsequently discovered that “I was not found to [be] suitable for the position due to the fact that I was on restricted duties and that the position was classified as an operational position”. At the time of this initial complaint to the President the complainant had not received any official notification from the respondent about the fate of his application for promotion.

6 On 4 July 1999 the complainant sent a further letter to the President to which he attached a copy of the letter he had received from Ms Angela Myers, Director, Assessment Services Directorate, dated 16 June 1999, informing him that he had not succeeded in his application for promotion. The relevant parts of that letter are as follows:

Recruitment Action for the Position of Intelligence Supervisor,
Coffs/Clarence, Sergeant (98/652)
I am writing to advise you that unfortunately you have been unsuccessful in your application and subsequent interview for the above position.
In relation to the position of Intelligence Supervisor, Coffs/Clarence, Local Area Commander Superintendent Wadsworth has indicated that the role of Supervisor, Intelligence, is a fully operational role and thus necessitates that the selected applicant should be able to perform full duties without restrictions.
It is understood that Dr Sharp, the Police Medical Officer placed you on permanent restricted duties on 19 June 1996, with this situation being reviewed and confirmed by Dr Crowle on 28 October, 1997.
These restrictions obviously preclude you from performing full duties without restrictions. A requirement of the role is that you perform full duties. Unfortunately you cannot, at this stage, satisfy this requirement of the position.
This is enshrined in legislation under the Police Service Act of 1990 (No. 47). Part I, 3(b) defines merit as “the aptitude of the person for the discharge of the duties of the position”.
This does not preclude your appeal rights relating to this position or you applying for further positions.

7 By letter dated 4 August 1999 the President referred what he described as “complaints” by the complainant to the Tribunal pursuant to section 94(1) of the Act. In this letter the President stated:
On 3 August 1999 I decided to refer the complaints under section 94(1) of the Anti-Discrimination Act because I believe that the nature of these complaints is such that they should be referred to the Tribunal. I came to this conclusion for the following reasons:

• the matter needs to be dealt with expeditiously;
• another Tribunal process will be on hold pending an outcome in this matter;
• the matter is unlikely to be conciliated;
• the complainant has requested that the President send this matter to the Equal Opportunity Division of the Administrative Decisions Tribunal for a hearing.
8 In his report to the Tribunal (Exhibit 1) the President stated:
On 19 July the Board received an undertaking from the Police Service stating that the Police Service will not move to permanently appoint the current recommended officer in relation to the matter pending the resolution of the discrimination matter, however the Service is not prepared to withdraw or cancel the publication of the current nominated officer.

9 After the matter was referred to the Tribunal the parties were directed to file and serve Points of Claim and Points of Defence. In his Points of Claim the complainant has alleged that the respondent denied or limited his access to an opportunity for promotion and that in so doing the respondent discriminated against him directly and indirectly on the ground of his disability.

10 In the Points of Defence the respondent admitted a number of background facts (see paragraph 27 below), but denied discriminating against the complainant on the ground of his disability. We consider the following paragraphs from the Points of Defence to be of particular relevance:
11. The Respondent says that the Complainant cannot carry out the requirements of the particular employment of position 98/652.
12. The Respondent says that in the Complainant’s letter to the Anti-Discrimination Board dated 15 June 1999 he acknowledges that he was aware that in order to be promoted to the relevant position he must satisfy, inter alia, medical standards.
13. The Respondent says that the Complainant did not meet those medical standards.
14. The Respondent says that the Respondent has a duty of care to the Complainant to provide a safe workplace and to not put him at risk of foreseeable injury, or aggravation of existing injury, in the course of his duties. It is foreseeable that the Complainant might aggravate his existing injury whilst carrying out the requirements of position 98/652.

C. The Evidence

11 There were two witnesses for the complainant: the complainant himself and Mr Raymond Collins, an official employed by the union for police officers, the Police Association. The complainant also tendered a number of documents including the report of the President (Exhibit 1).

12 Key points made in the two written statements of the complainant (Exhibits 3 and 4), and his oral evidence, are as follows:

(a) the complainant became a sworn member of the NSW Police Service in June 1978.
(b) he commenced intelligence duties at Griffith in early 1991.
(c) he sustained a back injury, which was not work related, in late 1991 and as a result of that injury he had spine surgery in July 1993.
(d) since returning to work shortly after that surgery the complainant has worked for the respondent as an intelligence officer on a full time basis.
(e) in June 1996, following an examination by a police medical officer, the complainant was placed on permanent restricted duties. At no stage was the complainant provided with a written report of this examination. He later obtained, through his own efforts, a copy of the restrictions on his duties which had been proposed by the police medical officer Dr Sharp.
(f) in September 1996, whilst on permanent restricted duties, he succeeded in his application for lateral transfer to an intelligence officer position at Grafton.
(g) in October 1997 he was transferred to an intelligence officer position at Coffs Harbour. The complainant is still in this position.
(h) none of his superior officers have questioned the complainant’s capacity to perform his duties as an intelligence officer; “I believe that being on restricted duties has not affected or hampered the workload, efficiency or effectiveness of any Intelligence Office that I have been attached to”.
(i) prior to applying for the position in question in this case the complainant discussed with a police medical officer whether being on restricted duties would preclude him from applying. He was informed that “if the duties of the upgraded position were substantially the same as the duties I was currently performing then she informed me she could not see any reason why I could not apply”.
(j) the position of ‘Intelligence Supervisor – Sergeant – Coffs/Clarence Command’ was advertised in the Police Service Weekly on 4 May 1998. Amongst other things the advertisement stated that applicants for the position must “satisfy medical, ethical and conduct standards”.
(k) after obtaining and examining the job description and other documents relevant to this position the complainant concluded that he was capable of performing the duties of the position even though he was on restricted duties and in his opinion “the duties of the upgraded position were absolutely no different to the duties I was currently performing except that the upgraded position had a supervisory element added”.
(l) the complainant applied for the position and he was interviewed on 6 November 1998. Shortly afterwards the complainant spoke to a member of the interview panel, Superintendent Andrews, who informed him that “the panel had selected me for the position”. Superintendent Andrews informed the complainant that his selection had “caused a problem” which was “due to the fact that I was on restricted duties it had been suggested … that the panel should select another officer for the position so as to not cause any problems. He then informed me that the panel had refused to do this and that my selection would cause a problem and the matter could end up being a discrimination test case”. Superintendent Andrews suggested that the complainant contact Ms Angela Myers, the Director of Assessment Services, in the NSW Police Service, who was handling the matter.
(m) on the same day, 1 December 1998, the complainant contacted Ms Myers who informed him that his recommendation by the panel “was going to cause a problem as I was on full time restricted duties”. Ms Myers informed the complainant that she would obtain additional information from the police medical branch, from the relevant Commander and from his personnel files.
(n) the complainant heard nothing further from Ms Myers until he received a letter from her, dated 16 June 1999, which has been reproduced in paragraph 6 above. In that letter the complainant was advised that he was unsuccessful in his application for the position in question.
(o) the complainant stated that he was “bitterly disappointed at the decision of the Police Service in denying me this promotion. This matter has caused me enormous pain and suffering. It has placed a severe strain on my personal health and my family. I believe that I have been blatantly discriminated against in the area of employment”.
13 During cross-examination of the complainant by Mr Giagos it became apparent that the complainant was placed on permanent restricted duties by Dr Sharp in June 1996 following a request by the complainant’s patrol commander that he undertake general policing duties on a rotational basis. As the complainant questioned his capacity to undertake these duties without risk of injury to his back he was referred to a police medical officer for assessment. The complainant was cross-examined at some length about the duties of an intelligence officer. In view of our conclusion in this case it is unnecessary to refer to this evidence.

14 The statement of Mr Collins (Exhibit 2) was tendered without objection and he was not required for cross-examination. Mr Collins’ statement contained details of the physical fitness requirements for police officers set out in an enterprise agreement and he provided details of negotiations concerning the industrial position of police officers on permanent restricted duties. In view of our conclusion in this case it is unnecessary to refer to this evidence.

15 There were five witnesses for the respondent: Mr Michael Tiltman, Ms Angela Myers, Superintendent Zenio Feszczuk, Superintendent Peter Wadsworth and retired Inspector Ronald McDonald. Only Mr Tiltman and Ms Myers were required for cross-examination.

16 Mr Tiltman is the Deputy Director, Human Resource Services in the NSW Police Service. He has day to day responsibility for the management of human resource functions within the NSW Police Service. Mr Tiltman had no personal involvement in the appointment to the position in question in this case other than to provide advice to Ms Myers. His evidence was directed towards general matters of human resources policy within the NSW Police Service. In his written statement he referred to concerns about the number of police officers on permanent restricted duties and steps taken in conjunction with the Police Association to deal with this issue. Mr Tiltman outlined proposals for change, such as expediting the medical discharge of police officers on long term sick leave or permanent restricted duty, which have no direct bearing on this case.

17 Ms Myers is the Acting Director, Workforce and Careers Directorate in the NSW Police Service. As a result of holding this position she has a delegation, pursuant to section 31 of the Police Service Act 1990, to approve the promotion of officers to the rank of sergeant. We understood it to be agreed between the parties that Ms Myers was the relevant decision maker for the respondent in this case. She declined to approve the recommendation of the interview panel that the complainant be appointed to position 98/652. It was not in dispute that on 16 June 1999 Ms Myers wrote the letter to the complainant, referred to in paragraph 6 of these reasons, in which he was officially informed that this application for promotion had been unsuccessful.

18 A statement by Superintendent Zenio (Ben) Feszczuk was tendered in evidence (Exhibit B). Superintendent Feszczuk was not required for cross-examination. He was the convenor of the three person interview panel for position 98/652. There were 18 applicants for the position, five of whom were called for interview. The complainant was the recommended applicant for the position. Superintendent Feszczuk wrote a report to this effect. In May 1999 he was advised by Ms Myers that the complainant would not be appointed to the position. He was asked to write a report recommending that the other candidate adjudged by the interview panel to be suitable for the position, Senior Constable Jacobson, be appointed.

19 A statement by Superintendent Peter Wadsworth (Exhibit D) was tendered in evidence. He was not required for cross-examination. At all relevant times Superintendent Wadsworth was the Local Area Commander for the Coffs/Clarence Command which was the command in which the person appointed to position 98/652 was to work. In Superintendent Wadsworth’s opinion the position in question is a “fully operational” one and he considered it “imperative that the officer selected should be able to perform full duties without restrictions”.

20 The respondent also tendered a statement by Mr Ronald McDonald (Exhibit D), a retired Inspector of Police, who was not required for cross-examination. During Superintendent Wadsworth’s absence for a few weeks in mid 1998 Mr McDonald was the relieving Local Area Commander for the Coffs/Clarence Command. In this capacity he provided competency ratings for both the complainant and Senior Constable Jacobson as part of their applications for position 98/652. At this time, and generally, Mr McDonald rated Senior Constable Jacobson higher than he rated the complainant. Whilst this evidence may be of some relevance in other proceedings, it is of no relevance in this case.

D. Submissions by the Parties

21 Both parties filed lengthy written submissions. They were given an opportunity to speak to their own submissions and to respond to their opponents submissions. Ms Ronalds, for the complainant, submitted that the Tribunal should find that the respondent had committed unlawful acts of both direct and indirect discrimination on the ground of disability. It is our understanding that the case was primarily put as one of direct discrimination. The details of the complainant’s submissions about liability are discussed in Part E of these reasons, as are the submissions concerning the relief which should be ordered.

22 The respondent denied that he had unlawfully discriminated against the complainant on the ground of his disability. In essence, the respondent’s argument in relation to the claims of both direct and indirect discrimination was that he had acted reasonably. He had classified the position in question as an operational one and because of the permanent work restrictions placed upon the complainant by a police medical officer, as a result of the complainant’s back injury, the complainant could not be appointed to the position because he could not perform the inherent requirements of the particular position.

E. Conclusions

23 In this case the substantive provision of the Act upon which the complainant relies is section 49D(2)(b). It is the complainant’s case that his employer, in refusing to appoint him to position 98/652, denied him access to an opportunity for promotion and, in so doing, discriminated against him on the ground of disability. Section 49D of the Act states:

(1) It is unlawful for an employer to discriminate against a person on the ground of disability:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms of conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee’s access, 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.
(3) Subsection (1) and (2) do not apply to employment:
(a) for the purpose of a private household, or
(b) where the number of persons employed by the employer, disregarding any persons employed within the employers’ private household, does not exceed 5, or
(c) by a private educational authority.
(4) Nothing in subsection (1)(b) or (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
(5) For the purpose of subsection (3)(b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is taken to be a related corporation within the meaning of the Corporations Law .

24 The complainant has alleged that the respondent in breaching section 49D(2)(b) has performed acts of both direct and indirect discrimination on the ground of disability. The relevant definitions of direct and indirect discrimination are found in section 49B(1)(a) and (b) respectively:
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) 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 had that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
25 The word “disability” is defined broadly in section 4 of the Act. That definition states:
disability means:
(a ) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or
(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person’s body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person’s thought process, perception of reality, emotions or judgments or that results in disturbed behaviour.

The complainant has identified his disability in broad and lay terms as “a back injury”. There is no need for us to examine this issue in any detail for in paragraph 3 of the Points of Defence the respondent had admitted that the complainant has a disability within the meaning of section 4 of the Act.

26 We believe that the complainant has successfully made out a case of direct discrimination on the ground of disability. The respondent has sought to rely upon a defence which is not open to it upon a proper reading of the Act. We believe that the evidence from the key witnesses for the respondent demonstrates a fundamental misunderstanding of the disability discrimination provisions of the Act. Counsel for the complainant has also asked us to make a finding in relation to the claim of indirect discrimination on the ground of disability. There is insufficient evidence for us to make any findings in relation to this matter and, accordingly, we decline to do so.

27 There is no dispute between the parties in relation to what we consider to be the main facts in issue. At all material times the parties were in the relationship of employer and employee. For the purposes of proceedings under the Act the respondent has been correctly identified as the employer of the complainant (see section 4B(1)(b)). The complainant suffers from a “disability” within the meaning of the Act in that his back injury may be properly cast as “the malfunction …. of a part of a person’s body” (see paragraph (c) of the definition of disability in section 4 of the Act).

28 Some time in May 1998 the complainant applied for appointment to position no 98/652, which had been advertised by the respondent on 4 May 1998. As the complainant was a senior constable and position no 98/652 was for a sergeant, the complainant applied for promotion. As far as the interview panel was concerned the complainant was the best of 18 candidates for the job and it recommended his appointment to the position. Ms Myers, the delegate of the respondent, determined that the complainant should not be appointed to the position no 98/652 and she advised the complainant of this determination by letter dated 16 June 1999.

29 These facts clearly demonstrate that the respondent, an employer, denied an employee, the complainant, access to an opportunity for promotion. Thus the complaint falls within the relevant substantive provision. The key issue is whether the respondent discriminated against the complainant on the ground of disability. We turn, first, to the claim of direct discrimination.

30 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 an Appeal Panel of this Tribunal, after considering the leading authorities, posed a question which should be asked in cases of direct discrimination. In the context of this case that question is : did the respondent, on the ground of the complainant’s disability (or a characteristic of that disability) treat the complainant less favourably than it treated or would have treated a person without that disability in the same circumstances, or in circumstances which were not materially different? In our opinion the answer to this question is “yes”.

31 In Aldridge the Appeal Panel identified two components to the question which has been posed : differential treatment and causation. For differential treatment to have occurred the treatment of the complainant by the respondent must have been objectively less favourable than the treatment which was afforded, or which would have been afforded, to a person without the complainant’s disability in the same circumstances, or in circumstance which are not materially different. In this case it is clear, on the evidence, that the complainant was treated less favourably by the respondent than he would have treated another applicant for promotion to position 98/652, with similar qualifications and experience to the complainant and who was the candidate recommended by the interview panel, but who did not have a back injury. That other applicant would have been appointed to the position, subject to satisfying the requirements relating to conduct and ethics.

32 The component of causation requires an examination of the grounds or the reasons for the differential treatment. To employ the language used by Street CJ in Director General of Education v Breen [1982] IR 93 at 95, it is necessary for the complainant to prove that his disability, his back injury, had a “causally operative effect” upon the decision by the respondent to afford him what we have described as differential treatment. In this case it is clear that a reason, if not the sole reason, why the complainant was afforded differential treatment by the respondent was because the relevant decision–maker, Ms Myers, believed that the complainant could not perform the duties of the position as a result of his disability, his back injury. In her letter to the complainant of 16 June 1999, advising him that his application for position 98/652 had been unsuccessful, Ms Myers referred to the fact that the complainant had been placed on permanent restricted duties by Dr Sharp and then stated:
These restrictions obviously preclude you from performing full duties without restrictions. A requirement of the role is that you perform full duties. Unfortunately you cannot, at this stage, satisfy this requirement of the position.

33 During cross-examination Ms Myers was questioned at some length about her reasons for failing to appoint the complainant to the position in question. She stated, consistently with the contents of her letter, that it was because “he couldn’t perform the full duties of that position”. It is both necessary and logical to look at the reasons behind this conclusion. Ms Myers concluded that the reason why the complainant could not perform the full duties of position 98/652 was because he had been placed on permanent restricted duties. The reason why he had been placed on permanent restricted duties was because he had a disability, a back injury. Thus, a reason for the differential treatment was the complainant’s disability. Accordingly, the claim of direct discrimination on the ground of disability must succeed.

34 The respondent conducted his case on the basis that he was lawfully entitled to deny the complainant promotion if, in lay terms, the complainant, because of his disability, could not perform the duties of the new job. In legal terms the argument was that the complainant could not perform “the inherent requirements” of the new job. This point was made in paragraph 11 of the Points of Defence (reproduced in paragraph 10 above) and the following statements are found in the respondent’s written submissions:
The Respondent submits that the “inherent requirement of the particular employment” of Intelligence Supervisor is active supervision, monitoring of delegations to other officers and training other officers. These are the “inherent requirements” that distinguish it from the Practitioner’s position. These are the “inherent requirements” that the Complainant admits he cannot perform [page 6] ………..
After considering the circumstances of the case Ms Myers made her decision. She was justified in her decision and the Respondent is entitled to rely on s 49D (4)(a) of the Anti-Discrimination Act 1977.

35 Section 49D(4)(a) of the Act (reproduced in paragraph 23 above) is a defence or exception to some of the conduct by an employer which is rendered unlawful by section 49D(1) and (2). The defence applies only to conduct described in section 49D(1)(b) and (2)(c), which relate to determining who should be offered employment and dismissing employees. The defence does not apply to the substantive provision relied upon in this case, section 49D(2)(b). In view of the express language of section 49D(4)(a) it would be nonsensical to read into section 49D(2)(b) a qualification that an employer had the right to deny an employee access to an opportunity for promotion on the ground of disability if the employer was of the view that the disability prevented the employee from performing the inherent requirements of the position to which he or she had sought promotion.

36 The limited operation of section 49D(4)(a) drew comment from the NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1977 (NSW) (Sydney, 1999) at page 257:
The exception concerning ability to carry out the inherent requirements of the particular employment does not apply in relation to denial of access to promotion, transfer or training. This appears illogical. An employer should be able to take on an employee in a particular position for which he or she is capable (with or without reasonable facilities) but should also be able to reassess the ability of the employee in relation to a new position which may require different capabilities. Without unduly complicating the provision, it is illogical and unhelpful both to disabled people and potential employers to fail to provide expressly for these circumstances.

37 It is interesting to note that the relevant Commonwealth legislation – the Disability Discrimination Act 1992 – contains a provision with precisely the same wording as section 49D(4) of the state Act. Section 15(4) of the Commonwealth Act permits an “inherent requirements” defence only when an employer is engaged in hiring and firing. In contrast the legislation in other Australian jurisdictions (see, section 22 Equal Opportunity Act 1995 (Vic), sections 35 and 36 Anti-Discrimination Act 1991 (Qld), section 71(2) Equal Opportunity Act 1984 (SA), section 66Q(2) Equal Opportunity Act 1984 (WA), section 45 Anti-Discrimination Act 1998 (Tas), section 49(2) Discrimination Act 1991 (ACT) and section 35 (1) Anti-Discrimination Act 1992 (NT)), and legislation previously in force in NSW (see the former section 49I(2) of the Anti-Discrimination Act 1977 repealed in 1994 by the Anti-Discrimination Act (Amendment) Act 1994), does (or did) allow an employer to rely upon an “inherent requirements” defence when making decisions about the promotion of an employee with a disability.

38 Lest it be thought that our reference to the comments made by the NSW Law Reform Commission, and to the defences available to employers in other Australian jurisdictions, conveys the impression that we believe there has been some unfairness to the respondent, we should point out that on the facts of this case the respondent would not have made out the “inherent requirements” defence, even if it was available to him. The respondent appeared to be of the view that pursuant to the “inherent requirements” defence he was entitled to declare all police officer positions to be “operational” (whatever that may mean), that he was entitled to seek compliance with unpublished and unknown medical standards and that he was entitled to decline to promote people with a disability if they could not perform all of the duties of a particular position. This is not how the “inherent requirements” defence operates.

39 As we have indicated, the wording of section 15(4) of the Disability Discrimination Act 1992 and section 49D(4) of the state Act is the same. The High Court made extensive comments about the operation of section 15(4) of the Disability Discrimination Act 1992 in X v Commonwealth of Australia (2000) 74 ALJR 176. The following statements by McHugh J (at page 182) commanded majority support:
Subject to s 15(4)(b), s 15(4)(a) permits discrimination against an employee who, without aid, cannot meet the requirements of the particular employment. But inability to carry out the inherent requirements of the employment without assistance does not make discrimination in employment lawful. It is a mistake to read s 15(4)(a) in isolation from s 15(4)(b). The presence of the latter paragraph shows that s 15(4)(a) is not a discrete defence which ipso facto prevents discrimination being unlawful.
[39] Section 15(4) must be read as a whole. When it is so read, it is clear enough that the object of the subsection is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within a s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was:

(a) not only unable to carry out the inherent requirements of the particular employment without assistance;
but was also
(b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide.
[40] If s 15(4)(a) provided a defence independently of s 15(4)(b), the employer could lawfully discriminate against an employee even though the employee could carry out the inherent requirements of the particular employment once he or she was provided with services or facilities the provision of which imposed no undue hardship on the employer.

40 Thus it is necessary for an employer to consider not only whether a person with a disability is able to carry out the inherent requirements of a particular job without assistance, but also whether that person may be able to carry out the inherent requirements with a level of assistance which would not impose an unjustifiable hardship on the employer. There is no evidence to suggest that an individual analysis of this nature was undertaken in this case. It appears that a blanket policy was applied by the respondent without reference to the particular circumstances of the complaint. The disability provisions in the Act are clearly designed to prohibit this sort of behaviour by employers.

41 The blanket policy in this case was to classify every position in the police service as “operational” and to require every successful applicant for promotion to meet an “operational” medical standard. The meaning of the term “operational” was not clear from the evidence in this case and neither was the content of the medical standard. According to Ms Myers all positions within the police force are “operational”; according to Mr Tiltman there are both “operational” and “non-operational positions”, but every police officer is expected to be capable of performing “front line” policing duties. It may be that the differences between the evidence of Ms Myers and Mr Tiltman are more apparent than real if Ms Myers’ use of the word “operational” is taken to mean that every police officer is expected to be capable of performing “front line” policing duties. These duties we understand to be those which bring police officers into direct contact with members of the public.

42 It is not clear whether there is one medical standard which must be met by every police officer and then additional standards for some positions depending upon the nature of the duties to be performed. There are no published medical standards. Whether a person is medically able to perform the duties of a particular position is determined by police medical officers. How they do this was not explained in terms which we understood. Neither of the witnesses for the respondent who were called for cross-examination appeared to have a sound understanding of the processes undertaken by police medical officers when determining whether an officer could meet the medical standard for a particular position.

43 Whatever be the true position it appears that the respondent’s policy concerning restricted duty officers has been developed and implemented with insufficient consideration having been given to the disability provisions of the Act. As Ms Ronalds indicated, it is open to the respondent to make an application under section 126 of the Act for an exemption from Part 4A, the disability discrimination provisions. There was no evidence that this step has been taken or even contemplated.

44 Ms Ronalds urged us to make a positive finding in relation to the complainant’s indirect discrimination claim even if (as has happened) the direct discrimination claim succeeds. On the basis of the evidence before us, however, we are unable to make any conclusive finding in relation to the indirect discrimination claim.

45 Whilst it is clear that the direct and indirect discrimination provisions of the Act are “ mutually exclusive in their operation” (this language was used by Sackville J in Commonwealth Bank of Australian V Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 97 when discussing the analogous provisions of the Commonwealth Sex Discrimination Act 1984), it is possible that the same set of circumstances could give rise to successful claims for both direct and indirect discrimination.

46 That portion of the Act which governs a claim of indirect discrimination on the ground of disability, section 49B(1)(b), has been reproduced at paragraph 24. In this case, as in many others, it is difficult to accurately and precisely describe the “requirement or condition” upon which the claim of indirect discrimination hinges. In paragraph 7(a) of Points of Claim the complainant described it thus:
The Respondent imposed a requirement or condition that to be able to be a successful applicant for the promotion position, a person must be able to perform full duties without restriction, as the position is an operational position.

Ms Ronalds used similar language in paragraph 91 of her written submissions.

47 We believe that the complainant has cast the “requirement or condition” too broadly and too vaguely. It is not clear what is meant by the allegation that the respondent applied the “requirement or condition” that the successful applicant for promotion to position 98/652 be able “to perform full duties without restriction”. We don’t know, for example, whether a person with an impairment of sight or hearing would have been denied promotion. The term “without restriction” is, on the facts of this case, too imprecise to carry out an indirect discrimination analysis. So is the term “full duties”. It is not clear whether this means all of the particular duties of position 98/652, or the “front line” policing duties which Mr Tiltman and Ms Myers claimed all police officers should be capable of performing. We acknowledge that the complainant has cast the “requirement of condition” by using the language employed by Ms Myers in her letter to the complainant of 16 June 1999 but the burden of proof rests with the complainant. It is necessary to be more specific in order to undertake the indirect discrimination analysis required by the Act. All that the evidence permits us to conclude is that in order to be promoted to the position in question the respondent imposed a medical standard of unknown content with which the complainant could not comply because of his back injury.

48 In order to succeed in an indirect discrimination claim the complainant must prove that a substantially higher proportion of people who do not have his disability are able to comply with the “requirement or condition” and that the “requirement or condition” is not reasonable having regard to the circumstances of the case. There is insufficient evidence for us to undertake a comparison between the proportions of relevant people who can and cannot comply with the alleged “requirement or condition”. How ever one casts the pool of persons to be used for the purposes of the statutory comparison - according to Ms Ronalds it may be all 18 applicants for the position or all potential applicants – we don’t have sufficient information about the members of the pool in order to undertake that comparison.

49 There was no evidence presented to us concerning the state of health of either all 18 applicants for the position, or all potential applicants. There was no evidence concerning the capacity of all 18 applicants, or all potential applicants, to comply with the alleged “requirement or condition”. Here the problem becomes a little circular because in the absence of a more tightly drawn “requirement or condition” it becomes difficult to imagine how the necessary evidence concerning the capacity of pool members to comply with the “requirement or condition” could have been presented. There needed to be, however, evidence concerning the proportions of pool members with and without a back injury similar to the complainant’s because section 49B(1)(b) of the Act makes it clear that it is necessary to consider people with the same disability as the complainant, or one that is substantially the same (see section 49B(4)). That evidence was not presented. Consequently, for the reasons given, there is insufficient evidence for us to make any conclusive findings about the claim of indirect discrimination.

50 As we have found that the complainant has made out his claim of direct discrimination on the ground of disability we must find the complaint substantiated and determine what relief (if any) should be ordered. The remedies which the Tribunal may order are set out in section 113(1) of the Act which states:
(1) After holding an inquiry, the Tribunal may:

(a) dismiss the complaint the subject of that inquiry, or
(b) find the complaint substantiated and do any one or more of the following:
(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,
(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,
(iiia) in respect of a vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
(iiib) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,
(iv) make an order declaring void in whole or in part and either ab initio or form such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or
(v) decline to make any further action in the matter.
51 The relief sought by the complainant was set out in paragraph 9 of the Points of Claim which was amended shortly prior to the hearing and then during the hearing, with the consent of counsel for the respondent. The amended version of paragraph 9 states:
9. The Complainant seeks that the Tribunal finds the complaint substantiated and makes the following orders pursuant to section 113(1)(b) of the AD Act:
(a) that the Commissioner’s recommendation that Senior Constable Phillip Keith Jacobson be appointed to Position 98/652 be revoked.
(b) Notice of that revocation be published in the Police Service Weekly .
(c) Subject to a satisfactory clearance of medical, ethical and conduct standards being obtained and within 14 days of the Tribunal’s decision the Commissioner recommend that the Complainant be appointed to Position 98/652.
(d) The Commissioner’s recommendation be published in the Police Service Weekly as soon as practicable, resulting in the appeal rights to the Government and Related Employees Appeal Tribunal commencing at the date of publication of the notification and those appeal rights remaining open for 21 days from that date.
(e) The Respondent pay to the Complainant damages of $40,000 for his loss or damage, including:
(a) economic loss for the loss of wages and other related benefits which the Complainant would have been paid as a Sergeant Year 1 had he been appointed in January 1999 until the date of the Tribunal’s decision,
(ii) non economic loss for pain and suffering and humiliation caused by the act of unlawful discrimination.
(f) An apology from the Respondent to the Complainant for the act of unlawful discrimination and its effects on the Complainant.
(g) Such other order or orders as the Tribunal thinks fit.
52 It is clear that the orders sought in paragraph 9(a), (b), (c) and (d) of the Points of Claim are intended to place the complainant in the position he would have been in had Ms Myers accepted the recommendation of the interview panel and used her delegated powers to appoint the complainant to position 98/652, if he had met the necessary ethical and conduct standards. The orders sought would cause Senior Constable Jacobson to lose the position, but would cause him to retain his right of appeal to the Government and Related Employees Appeal Tribunal (GREAT) pursuant to section 81B of the Police Service Act 1990 .

53 These proposed orders appear to fall within section 113(1)(b)(iii) of the Act and, subject to our reservations expressed below concerning the unnecessary degree of detail, they appear to constitute a reasonable course of conduct to redress the loss suffered by the complainant as a result of the respondent’s unlawful discrimination. The respondent should be appointed to position 98/652 if he satisfies the ethical and conduct standards and Senior Constable Jacobson should retain his right to appeal to GREAT on merit if he does lose the position.

54 The potential loss to Senior Constable Jacobson is a matter of concern to us. He appears to be an innocent party who may suffer through no fault of his own. The level of detail sought in the proposed orders does not appear to us, at this stage, to be necessary and it does not accord with our understanding of the respondent’s powers when making promotions. The scheme set out in the Police Service Act 1990 appears to permit the respondent to make final decisions concerning promotions. In certain circumstances unsuccessful applicants for promotion may appeal to GREAT, against a decision of the respondent, on the ground that “the merit of the appellant is greater than that of the other police officer”. The references in the proposed orders to the respondent making a “recommendation” appear to us to involve an unnecessary reading down of the Commissioner’s powers. The Police Service Act 1990 appears to give the Commissioner the power to make final and binding decisions concerning promotions, subject to the capacity of GREAT to overturn the Commissioner’s decision on appeal.

55 The reference in paragraph 9(c) of the proposed orders to the complainant meeting “medical standards” before the respondent is required to appoint him to position 98/652 is inappropriate in light of our decision in this case and our statements concerning the effect of the relevant disability discrimination provisions of the Act. The reason why the complainant was found to be ineligible for appointment to position 98/652 was because he did not meet the medical standard for that position. That decision by the respondent constituted unlawful discrimination on the ground of disability. Because the “inherent requirements” defence in section 49D(4) does not apply to decisions by an employer concerning promotion, there is potential for any decision by the respondent to decline to promote the complainant, or any other police officer, because of failure to meet a medical standard to constitute unlawful discrimination on the ground of disability. The policy of the Act appears to be that a person’s disability is an irrelevant consideration when decisions concerning promotion are made. Whilst in theory it may be possible to apply a promotional medical standard which does not constitute unlawful discrimination on the ground of disability, the evidence in this case concerning the medical standards applied by the respondent was so vague that no useful or lawful purpose is likely to be served by requiring the complainant to meet the pre-condition of satisfying the respondent’s medical standard before he can be promoted.

56 We believe it appropriate to phrase broadly the orders made pursuant to section 113(1)(b)(iii) of the Act which are intended to cause the complainant to be appointed to position 98/652, subject to satisfying the ethical and conduct standards and subject to preserving Senior Constable Jacobson’s GREAT appeal rights. Those who advise the respondent may be able to devise a scheme which protects the interests of Senior Constable Jacobson without depriving the complainant of the promotion which he would have achieved absent the unlawful discrimination. In the first instance the mechanics of restoring the complainant to the position he should have been in are best dealt with by the respondent. He is a public official who can be reasonably expected to take appropriate steps to comply with an order of the Tribunal. In case there are difficulties in implementing broadly phrased orders we will permit both parties to apply to the Tribunal to further refine those orders.

57 The complainant has sought $40,000 damages, which is the jurisdictional limit. The parties have agreed that the complainant’s loss of wages as a result of the failure to appoint him to position 98/652 is $1,055.50 until 14 September 2000. In her written submissions Ms Ronalds stated that the complainant “seeks that the remainder of the $40,000 be an award of compensation for pain and suffering and humiliation”. The only evidence led in support of this claim for general damages was the statement of the complainant concerning his response to the respondent’s actions, which is referred to in paragraph 12(o) of these reasons. General damages are difficult to quantify. The NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1977 (NSW) (Sydney, 1999), at page 764, noted that awards for general damages “tend to be low despite the warning of the English Court of Appeal that damages for non-economic loss should ‘not be minimal, because this would tend to trivialise or diminish respect for public policy’ (Alexander v Hone Office [1988] 1 WLR 968 at 975)”. The Commission reported that damages for non-economic loss in cases brought under the Act have varied between $50 and $27,500 (at page 764).

58 Ms Ronalds provided the Tribunal with a list of Commonwealth, New South Wales and Victorian authorities which would appear to indicate that in a number of recent cases general damages awards have been more than minimal. In the circumstances of this case, and bearing in mind the recent cases in a number of jurisdictions to which we have been referred, we believe an award of $5,000 general damages is appropriate. The figure for actual economic loss must be extended to the date of decision. On the basis of the calculations provided by the parties it seems that $1,500 is an appropriate figure for economic loss. Thus the total award of damages is $6,500. As the statutory appeal period is 28 days the award of damages should be expressed to operate at the conclusion of this period.

59 In paragraph 9(f) of the Points of Claim the complainant has sought an order that the respondent apologise to him for the act of unlawful discrimination. In her written submissions Ms Ronalds has not referred to any specific head of power which would permit the Tribunal to make this order. It may be permitted by section 113(1)(b)(iii). This is not an issue which we need to conclusively determine for even if the Tribunal has the power to order an apology in a case such as the present, as opposed to vilification complaints where orders for apologies are expressly permitted (see section 113(1)(b)(iiia)), we do not consider it appropriate to make the order sought in this particular case. There is no suggestion that the actions of the respondent were malicious or wanton. We have concluded that the respondent paid insufficient attention to the contents of Part 4A of the Act, but we accept that the general issue which caused this matter to be litigated, namely the position of police officers who have been placed on permanent restricted duties, is a complex matter of genuine concern to the respondent.

60 Finally, the complainant has sought an order that the respondent pay his costs. There is a statutory presumption that parties should bear their own costs unless the circumstances of the case justify a departure from that general rule. Section 114 of the Act states:

(1) Except as provided by section 111 (2) and subsection (2) each party to an inquiry shall pay his or her own costs.
(2) Where the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

Costs are also dealt with in section 88 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) which states:

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid and
(b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4) In this section, costs includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
61 When read together, sub-sections (1) and (3) of section 88 of the ADT Act lead to the conclusion that the language used in section 114 of the Anti-Discrimination Act 1977 must be qualified by the wording of the more recent provision – section 88(1) of the ADT Act . Therefore, the Tribunal may award costs in this case only if “satisfied that there are special circumstances” which warrant such an order. Whether this makes any meaningful difference to the way in which section 114 has been interpreted and applied in the past is a debatable point.

62 In this case we believe that there are special circumstances which warrant an award of costs in favour of the complainant. There is clear evidence that the respondent regarded this as a test case. Consequently, the complainant, who has simply applied for a promotion, had to endure the expense, the pressure and the delay of being involved in a test case. The respondent is quite entitled to test the limits of the law but, in this case, he has sought to rely upon a defence which is not available to him (section 49D(4)) and he has not acted in accordance with that defence, even if it were available to him. Taken together, these are special circumstances contemplated by section 88(1) of the ADT Act. As contemplated by section 88(2)(b) of the ADT Act, failing agreement between the parties, costs should be assessed by a costs assessor pursuant to Division 6 of Part 11 of the Legal Profession Act 1987. The complainant should receive his costs on a party/party basis. The Registrar of the Tribunal will be empowered to nominate a costs assessor in the event that the parties cannot agree on costs, or the identity of a cost assessor.

F. Decision and Order

63 The complaint is substantiated. The Tribunal makes the following orders:

1. Within 28 days of the date of these orders the respondent is to:

(a) carry out his requisite and usual ethics and conduct enquiries to determine whether the complainant is eligible for promotion to position 98/652
(b) In the event that the complainant satisfies the respondent’s requisite and usual ethics and conduct standards take all necessary steps to appoint the complainant to position 98/652
(c) Pay to the complainant damages of $6,500
(d) Pay the complainant’s costs of these proceedings on a party/party basis

2. In the event that the parties are unable to agree on the quantum of costs this amount is to be determined pursuant to Division 6 of Part 11 of the Legal Profession Act 1987 by a costs assessor appointed by the Registrar.
3. Both parties have liberty to apply to the Tribunal in relation to the operation of these orders.