Commissioner of Fire Brigades (NSW) v Lavery - [2005] NSWSC 268

No judgment structure available for this case.

CITATION:
COMMISSIONER OF FIRE BRIGADES (NEW SOUTH WALES) v. TERENCE LAVERY [2005] NSWSC 268

HEARING DATE(S): 8 September 2004

JUDGMENT DATE :

6 April 2005

JURISDICTION:
COMMON LAW

JUDGMENT OF:
Greg James J at 1

DECISION:
I dismiss the summons.; The plaintiff is to pay the defendants costs.

CATCHWORDS:
Appeal - Discrimination - Nature of discrimination - Jurisdiction of Anti Discrimination Tribunal - Continuing discrimination commenced before Act - Requirements for valid complaint - Indirect and direct discrimination - Appropriateness of comparison with non disabled workers.

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Racial Discrimination Act (1975)
Anti-Discrimination Act 1977

CASES CITED:
Purvis v State of New South Wales (2003) 202 ALR 133
Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165
Waters v Public Transport Corporation (1991) 173 CLR 349
Lavery v. Commissioner of New South Wales Fire Brigade [2003] NSWADT 93
Wollongong City Council v. Bonella & Ors (EOD) [2002] NSW ADTAP 26
Najdovska & Ors v. Australian Iron & Steel Pty. Limited (EOC) (1985) 92-140
Australian Medical Council v Wilson (1996) 68FCR 46 at 55
Langley v. Niland (1981) 2 NSWLR 104
Commissioner of Police, NSW Police Service v. Orr (EOD) [2001] NSW ADTAP 16
Reyes-Gonzales v Sydney Institute of Technology (1998) NSWEOT

PARTIES:
COMMISSIONER OF FIRE BRIGADES (NEW SOUTH WALES) v. TERENCE LAVERY

FILE NUMBER(S):
SC No. 30117 of 2003

COUNSEL:
Plaintiff: K Eastman.
Defendant: J Nolan

SOLICITORS:
Plaintiff: Leigh Virtue & Associates
Defendant: Middletons Lawyers

LOWER COURT JURISDICTION:
Administrative Decisions Tribunal

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

WEDNESDAY 6 APRIL 2005

No. 30117 of 2003

COMMISSIONER OF FIRE BRIGADES (NEW SOUTH WALES) v. TERENCE LAVERY

JUDGMENT

1 HIS HONOUR: The Commissioner of Fire Brigades appeals from a decision of the Appeal Panel of the Administrative Decisions Tribunal pursuant to s.119(1) of the Administrative Decisions Tribunal Act 1997 (the “ADT Act”). The appeal is with respect to the whole of the decision of the Appeal Panel of that Tribunal which dismissed the appeal and affirmed the decision and order of the Administrative Appeals Tribunal at first instance. In Lavery v. Commissioner of New South Wales Fire Brigade [2003] NSWADT 93 and Lavery v. Commissioner of New South Wales Fire Brigade (No. 2) [2003] NSWADT 140 appear the decisions and reasons of the Appeal Panel. Damages of $21,851.51 and costs were ordered by the Tribunal. Lengthy and detailed written submissions by both parties have been provided. There has also been detailed oral argument.

2 I was provided with an appeal book prepared by the parties. It includes the judgments, the points of claim and points of defence filed by the parties in the Tribunal, and the report of the President of the Anti-Discrimination Board to the Tribunal in its Equal Opportunity Division to which is attached the material that was before the President and which was forwarded by the President to the Tribunal. That material includes the applicant’s original complaint.

The appeal provisions

3 Section 119(1) of the ADT Act provides that a party to proceedings before an Appeal Panel of the Tribunal may appeal to a Supreme Court on a question of law against any decision of the Appeal Panel in those proceedings.

4 Section 120(1) provides that the Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision. Section 120(2) provides that the orders that may be made include, but are not limited to, orders affirming or setting aside the decision and/or an order remitting the case to be heard and decided again, either with or without the hearing of further evidence in accordance with the directions of the Supreme Court.

The decision of the Tribunal

5 The decision of the Administrative Decisions Tribunal, was affirmed by the Appeal Panel, and was that the complaint of the applicant (the defendant in the proceedings before me (referred to in the ADT Act as the “aggrieved person”, the complainant) was substantiated. In consequence, the Tribunal ordered the plaintiff (referred to in the ADT Act as “the perpetrator”) to pay the damages to which I have referred.

6 The Tribunal had held that the plaintiff had unlawfully discriminated against the defendant on the ground of his disability in his employment. The Tribunal therefore found a relevant contravention of the ADT Act.

7 Section 49D(2) and (4) of the ADT Act provides:-

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

(a) in the terms or 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,

…

(d) by subjecting the employee to any other detriment.”

(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 it 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.”

8 Discrimination is referred to in s.49B(1) of the ADT Act as follows:-

“(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 has 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.

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

(3) …

(4) A reference in this section to persons who have a disability (‘the particular disability’) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.”

9 At paragraph 12 of the decision of the Tribunal appears the following:-

“The following material facts have been admitted by the respondent: (1) the respondent is the employer of the applicant, and the applicant and the respondent have been in the relationship of employer and employee at all material times; (2) the applicant lost the sight in his right eye in 1971 in a non-work related accident and this injury is a ‘disability’ within the meaning of s.4 of the Act.”

10 The issue before the Tribunal then was whether the defendant had unlawfully been discriminated against by his employer on the ground of his disability and whether he might claim under the ADT Act. As will appear under s.88 of the Act, the lodgment of a sufficient complaint is crucial to such a claim.

11 It was common ground that the defendant had been sent a letter by the plaintiff on 7 September 1971. That letter commenced:-

“Following the deferment of your promotion to the rank of First Class Fireman ‘B’ Grade for a period of one month as from 2 May 1971, it was noted that you suffered an injury in a motor vehicle accident on 8 May 1971, which resulted in the loss of sight in one eye.”

12 Thereafter, it continued:-

“The Board’s Medical Officer following examination of your case has advised that in view of having lost an eye you will never be acceptable as being fit for full fire fighting duties.

Having regard to this disability, the Chief Officer has recommended that as you are unable to be passed to drive and operate motor fire appliance and you are prohibited from full firefighting duties and thereby unable to improve to the requires (sic) standard you should remain at the rank of Second Class Fireman.

I am directed to inform you that the Board at its meeting of 1 September 1971, approved the Chief Officer’s recommendation.”

13 That letter and the treatment of the defendant by the plaintiff thereafter laid the context for these proceedings.

14 After 27 years, on 9 March 1999, the defendant lodged a complaint of disability discrimination under the Anti-Discrimination Act 1977. The complaint was notified to the plaintiff by the President of the Anti-Discrimination Board who advised that allegations of contravention, which pre-dated 22 April 1981 would not be dealt with because the provisions dealing with discrimination on the grounds of physical impairment were only included in the Act with effect from that date. The President referred the complaint to the Tribunal.

15 The complaint comprised a letter to the President from solicitors on behalf of the complainant verified by the complainant and dated 9 March 1999. It commenced with the statement “our client has instructed us to make a complaint to the Anti-Discrimination Board with respect to disability discrimination by the New South Wales Fire Brigade”. It referred to facts commencing with the commencement of the applicant’s employment with the Fire Brigades on 2 February 1968, referring to his loss of an eye in 1971 when he was a Second Class Fire-fighter, his return to light duties following the loss of his eye as a Second Class Fire-fighter and that he had remained in that position for the balance of his more than 30 years of service without any promotion, despite requests and refusal of opportunities to undertake training courses. Reference was made in the complaint to the letter from the New South Wales Fire Brigade dated 7 September 1971 and in particular to the latter two paragraphs of that letter.

16 It is common ground that thereafter the complainant remained as a Second Class Fireman.

17 The plaintiff has, at all times, denied that it has contravened the Anti-Discrimination Act 1977 by unlawfully discriminating against the plaintiff on the ground of disability in his employment.

18 The Tribunal set out portions of the complaint in its decision:-

“After setting out their client’s employment background and the fact that he had been injured in 1971, the complainant’s solicitors stated that:-

‘Upon return to health, our client returned to work as a Second Class fire-fighter on light duties in the Relay Room of Castlereagh Street Fire Brigade and has, to this day, remained in this position. During his 31 years of service our client has not received any promotion by the Board of Fire Commissioners of NSW despite his constant requests and evidenced merit.

On two separate occasions during our client’s employment with NSWFB, our client has been refused the opportunity to undertake computer training courses offered by NSWFB, after requesting to do so. To the best of our client’s knowledge, no other employee was ever refused the opportunity to undertake these training courses.

Our client has been informed by the NSWFB that he is not, and will not be eligible for promotion, solely because of the less of his right eye. Enclosed and marked ‘A’ is a letter from the NSWFB, indicating its position. (Emphasis added).”

19 The Tribunal further referred to the content of the complaint:-

“The complaint, which was prepared for the applicant by his solicitor, alleged that ‘[during his 31 years of service, our client has not received any promotion by the Board of Fire Commissioners of NSW despite his constant requests, and evidenced merit’ and that ‘[our client has been informed by the NSWFB, that he is not, and will not be eligible for promotion, solely because of the loss of his right eye’. The applicant’s solicitor went on to state in the complaint:-

‘There is no characteristic inherent in the job of a fire fighter which requires the sight of two eyes. With the use of proper safety equipment and training, our client is capable of performing all inherent tasks required of him as a fire fighter of appropriate rank, and hence should be entitled to be promoted on the basis of merit, as any fire fighter with the benefit of sight of two eyes.

Despite the use of only one eye, our client is eligible to obtain a Class 3 drivers licence. Our client understands that he would have to reach a driving proficiency of that standard to drive fire appliances. Our client has never been given the opportunity to drive fire appliances, despite his ability to do so.

Since 1971, our client has suffered substantial financial and personal loss, through the actions of the NSW Fire Brigade in overlooking him for a promotion (at a minimum, to the position of Station Officer).

The current salary for the position of Station Officer is $53,196 per year. Our client currently earns $38,190 per year. Exponentially, our client has calculated that he has suffered at minimum, a loss of earnings of about $260,000.”

20 The Tribunal made the following findings of fact:-

“105. … (1) the letter written to the applicant by the predecessor to the respondent on 7 September 1971 (reproduced in paragraph 19 above) was still operative during the ‘relevant period’ in the sense that it was a direction by the respondent to the applicant concerning the circumstances of his employment; (2) the effect of this letter, coupled with the respondent’s actual conduct, was that during the relevant period the applicant was employed as a firefighter in a non-operational position at the rank he had occupied since 7 September 1971 (Level 3 Firefighter); (3) in this ‘re-deployed position’ (the term used by the respondent) the applicant was not permitted to participate in the training, and thereby benefit from the consequential promotional opportunities, provided to all operational Level 3 Firefighters by the respondent as a matter of course during their daily work; (4) in this ‘re-deployed position’ there were no training opportunities open to the applicant, in the absence of special request made by him; (5) there is no evidence which satisfies us that the respondent made the applicant aware of the fact that he could make any special requests for training opportunities; (6) in this ‘re-deployed position’ there were no opportunities for the applicant to be promoted to a higher rank as the respondent did not promote firefighters in non-operational positions; (7) there were no opportunities for the applicant to be promoted to a more highly paid position (even if he had remained at the same rank) for the respondent had adopted the practice of limiting non-operational Special duties positions to firefighters who had achieved the rank of Qualified Firefighter; (8) even though there was at least one exception to this practice (Mr. Darren Ellen), the respondent did not make the applicant aware of the fact that he was prepared to grant exceptions; (9) in August 2001, the applicant obtained a Medium Rigid driving licence which may be taken as evidence of the fact that he was physically capable of driving a fire appliance during the relevant period and (10) the respondent has not satisfied us that he would have contravened ss.15 and 16 of the Occupational Health and Safety Act 1983 if he had permitted the applicant to engage in the training afforded to operational Level 3 Firefighters.

106. Two major issues in dispute between the parties were the standard of the applicant’s work performance in the Sydney Relay Room and the rank he could have reasonably expected to have achieved had he been afforded the training and promotional opportunities offered to operational firefighters. We have made the following findings of fact which are relevant to the issue of relief: (1) during his many years undertaking administrative work in the Relay Room the applicant’s work performance should be characterised as satisfactory or average; (2) whilst some aspects of the applicant’s conduct as an employee were of genuine and legitimate concern to the respondent (especially the Duke of Edinburgh Hotel and Relay Room incidents in the mid 1990’s), the applicant’s conduct would not have prevented his promotion to the rank of Qualified Firefigher; (3) had the applicant been provided with the training and promotional opportunities provided to other Level 3 and Level 4 Firefighters during the relevant period he would have achieved the rank of Qualified Firefighter by 9 September 2000; (4) we are not satisfied that the applicant would have progressed beyond the rank of Qualified Firefighter; and (5) the applicant suffered economic loss, humiliation, distress and insult as a result of the respondent’s failure to afford him the training and promotional opportunities provided to other Level 3 and Level 4 Firefighters during the relevant period.”

21 The Tribunal made findings as to the period of time over which it might hold, on the basis of the complaint, relevant contravention occurred. The following appears in the Tribunal’s reasons in this regard:-

“62. A threshold issue to consider is the period of time covered by the complaint. The Tribunal is given jurisdiction by s.96 of the Act. That section requires it to hold an inquiry in relation to ‘each complaint’ referred to it by the President of the ADB pursuant to s.94(1). Complaints are first made to the President of the ADB pursuant to s.88 of the Act. The Act requires the President of the ADB to investigate each complaint and, if appropriate, to seek to resolve the complaint by informal means (see ss.89 and 92 of the Act). Thus, the Tribunal conducts inquiries into complaints first made to the President of the ADB. There are time limits governing complaints to the President of the ADB. Section 88(3) provides that a complaint must be lodged with the President of the ADB within six months of the date of the alleged contravention of the Act. The President is given the power by s.88(4) of the Act to accept a complaint lodged out of time if good cause is shown.

63. The net effect of this statutory scheme is that in the absence of evidence that the President of the ADB has exercised he/her power to accept a complaint out of time, the Tribunal must proceed on the basis that the ambit of the complaint, in terms of time, is limited to the six month period preceding the lodgment of the complaint with the President of the ADB. In other words, the grant of jurisdiction to the Tribunal, in terms of time, is limited to ascertaining whether there has been a contravention of the Act in the six month period prior to the date upon which the complaint was made to the President of the ADB, unless the President has extended that time period by exercising his/her statutory power to do so. This construction of the legislation was recently approved by the Appeal Panel in Wollongong City Council v. Bonella [2002] NSWADTAP 26.

64. As there is no suggestion in this case that the President of the ADB exercised his powers to grant an extension of time, the applicant may only succeed in his complaint if he can establish that the respondent contravened the Act in the six month period prior to the date upon which he lodged his complaint which was 9 March 1999. The applicant is not precluded, however, from arguing that the conduct about which he complains commenced at some date well prior to six months before his complaint was lodged with the President of the ADB and that the conduct was continued over time. As the Appeal Panel stated in Wollongong City Council v. Bonella [2002] NSWADTAP 26 at paragraph 86:-

‘A continuing contravention of the Act is said to occur when, following an initial discrete act, a state of affairs continues.’

In such circumstances it is necessary, however, for the applicant to establish that the ‘state of affairs’, which allegedly constituted unlawful discrimination, continued, or existed, during the six month period prior to the lodgment of the complaint. This point is important in this case for the applicant has alleged that the respondent determined to treat him in a certain way on 7 September 1971 and that this conduct persisted, unchanged, until he lodged his complaint on 9 March 1999, and still persists.”

22 Thus the Tribunal rejected much of the defendant’s claim but found in his favour to a limited extent, ie., only as to the six months prior to the complaint.

23 At paragraphs 108 to 119 of the reasons for decision appears the Tribunal’s conclusions:-

“108. We are satisfied that the respondent discriminated against the applicant on the ground of his disability in contravention of s.49D(2)(a) and (b) of the Act during the six month period encompassed by the complaint in this case, namely 9 September 1998 to 9 March 1999.

109. The contravention of s.49D(2)(b) is most readily apparent. There were, in fact, two distinct ways in which this provision was breached. The respondent discriminated against the applicant on the ground of his disability, firstly, by re-deploying the applicant in a non-operational position in which he was denied the training and promotional opportunities afforded to other firefighters at his rank and, secondly, by affording him as non-operational firefighter no training and promotional opportunities which were equivalent to those afforded to operational firefighters.

110. The facts in relation to the first breach are clear and undisputed … On 7 September 1971, the legal predecessor to the respondent, the Board of Fire Commissioners, wrote to the applicant, who was then a Second Class Fireman, and informed him that as a result of the loss of his eye in May 1971 that he was ‘prohibited from full fire fighting duties’ and that he would ‘remain at the rank of Second Class Fireman’. That determination concerning the applicant’s employment was still operative during the relevant period and at the time of the hearing of this complaint over 30 years later. It was not in dispute that the applicant was prohibited from engaging in fire fighting duties and that he had during the relevant period, and still has, the rank of Level 3 Firefighter which is the modern equivalent of Second Class Fireman. For the past 30 years the applicant has worked in a non-operational position in the Sydney Relay Room answering the telephone and performing other clerical duties.

111. It is not in dispute that during the relevant period the respondent completely denied the applicant access to the training and promotional opportunities, such as drills, driving fire appliances and fire scene attendance, which were available to all operational Level 3 Firefighters as a matter of course during their daily work. It is also not in dispute that the reason for denying the applicant access to these training and promotional opportunities was his loss of sight in one eye. This reasoning has produced the findings of fact recorded at (1), (2) and (3) in paragraph 105 above.

Commissioner of Corrective Services v. Aldridge

113. In denying the applicant opportunities for training and promotion, the respondent treated the applicant less favourably than it treated other Level 3 Firefighters who did not have his disability. The treatment was obviously objectively less favourable. The other people who were afforded the more favourable treatment (the training and promotional opportunities), and who did not have the applicant’s disability, were in same circumstances as the applicant as they were Level 3 Firefighters. It is not possible to assert that the circumstances were different because the applicant was non-operational and all other Level 3 Firefighters without his disability were operational. The action of the respondent in making the applicant non-operational was unilateral. As a matter of workplace practice, the respondent did not maintain two separate classifications of Level 3 Firefighters. The people with whom the applicant should be compared were all other Level 3 Firefighters. Thus, on the basis of his comparison, the respondent engaged in differential treatment.

114. The element of causation is also satisfied because it was not disputed that the reason for declaring the respondent to be non-operational, which resulted in him being denied opportunities for training, was his disability. Mr. Farkas argued that the reason why the applicant was not promoted was because he lacked the necessary qualifications and not because of his disability. This is an argument without merit because the reason why the applicant could not obtain those qualifications was that he was denied access to training because of his disability. As we understood the respondent’s arguments, his primary submission was that he did not deny that this conduct fell within s.49D(2)(b) of the Act, but he asserted that he was lawfully entitled to act as he did because of the exception to liability in s.49D(4), and because he was lawfully obliged to act as he did in order to comply with the obligations case upon him by other statutes.

115. The second way in which the respondent contravened s.49D(2)(b) of the Act is a little more complex. In effect, the cause of his breach was the action of the respondent in maintaining the applicant in a non-operational firefighter position where he was precluded from accessing the training and promotional opportunities to those afforded to operational firefighters. The factual findings which underpin this breach are set out in (4), (5), (6), (7) and (8) in paragraph 105 above.

116. During and prior to the relevant period, the respondent unilaterally determined that the applicant was to be re-deployed in a non-operational firefighter position. In that position he remained classified as a firefighter, originally at the rank of Second Class Fireman and later, when the nomenclature changed, as a Level 3 Firefighter. Thus, in relation to the applicant, and some other employees, the respondent engaged in the practice of employing people as non-operational firefighters. The 1997 Award acknowledged the existence on non-operational firefighters, for it referred to Special Duties positions, but it did not operate as a code in relation to these employees for the respondent engaged in practices which fell outside of that award. For instance, the 1997 Award did not limit Special Duties positions to firefighters who had achieved a particular rank but, as a matter of practice, it appears that the Special Duties positions were available only to firefighters who had achieved the rank of Qualified Firefighter.

117. The effect of this practice was at a Level 3 Firefighter with a disability who had been deployed in a non-operational position, such as the applicant, was placed in a ‘Catch 22’ position concerning training and promotion. There was no training provided as a matter of course, as there was for operational Level 3 Firefighters. The only way to be promoted to the rank of Qualified Firefighter was to successfully complete the training provided to operational Level 3 and Level 4 Firefighters. Consequently, the applicant had no chance of being promoted because he was denied the opportunity to engage in the training provided to operational Level 3 Firefighters. Whilst there was evidence, which we accept (see finding (8) in paragraph 105), that one firefighter below the rank of Qualified Firefighter who was deployed in a non-operational position (Mr. Darren Ellen) received training and was ‘promoted’ to a more highly paid position, this training was not made available as a matter of course, as it was for operational firefighters. Mr. Ellen was not promoted in rank, but merely transferred to a more highly paid position.

118. This conduct by the respondent constituted discrimination against the applicant on the ground of his disability in contravention of s.49D(2)(b). It is clear that the conduct – denial of automatic opportunities for training and no promotional opportunities – fell within s.49D(2)(b). That conduct constituted discrimination on the ground of disability for there was both differential treatment and causation. The applicant was treated objectively less favourably than other Level 3 Firefighters who did not have his disability, in the same circumstances, because he did not receive the training and promotional opportunities afforded to operational Level 3 Firefighters. The circumstances were the same as the applicant had the same rank as the operational Level 3 Firefighters who received training as of right and promotional opportunities. Had the respondent maintained a separate stream of non-operational firefighters and provided those people with equivalent opportunities for training and promotion there would have been no differential treatment for there would have been no less favourable treatment. Had non-operational employees been taken out of the firefighter classification there probably would have been no differential treatment because it would not be appropriate to compare the treatment of non-operational personnel who were no longer firefighters with the treatment afforded to firefighters. The respondent did not do these things. Non-operational firefighters could only receive training by pushing and pushing. There was differential treatment.

119. The second element of causation is also satisfied because it was not disputed that the reason for maintaining the applicant as a non-operational firefighter, which precluded him from being promoted and receiving training as a matter of course during his daily work, was his disability.”

24 Thereafter at paragraphs 121 and 122 appears the following:-

Byrne v. Australian Airlines Limited

122. The same analysis as that undertaken in paragraphs 118-119 above, may be employed to demonstrate that the respondent discriminated against the applicant on the ground of his disability in the terms and conditions of employment which the respondent afforded to him. It is unnecessary to undertake this analysis in detail because, for the reasons set out at paragraph 138 below, the number of separate contraventions of the Act which may be proved has no effect upon the maximum amount of damages available to the applicant or any of the other remedies sought by the applicant in this case.”

25 In a later judgment the damages were quantified.

26 There was an appeal to the Appeal Panel which made the following orders:-

2. The order of the Tribunal in Lavery v. Commissioner of NSW Fire Brigades (No. 2) [2003] NSWADT 140 is affirmed.

3. No order as to costs.

4. The appeals are dismissed.”

27 The grounds of appeal to the Appeal Panel were:-

“1. The Tribunal misconstrued its jurisdiction with respect to the one complaint which had been referred to the Tribunal by the President.

2. The Tribunal misconstrued its jurisdiction, or alternatively erred, in finding that an act of the appellant’s predecessor in 1971 was a continuing contravention for the purposes of s.88 of the Anti-Discrimination Act 1977(NSW) (‘the Act’).

3. The Tribunal erred in the proper construction and application of the Act in finding that the predecessor of the appellant had breached s.49D(2)(b) of the Act by re-deploying the respondent to a non-operational position in 1971.

4. It was unreasonable for the Tribunal to find that the appellant had discriminated against the respondent on the ground of disability within the meaning of s.49B(1)(a) of the Act where the Tribunal stated that the cause of the breach was the action of placing the respondent in a non-operational position.

5. The Tribunal erred in applying s.49B(1)(a) of the Act in comparing the respondent to an operational firefighter, rather than comparing the respondent to an employee without a disability in the same or similar circumstances.

6. The Tribunal erred in finding that the respondent was denied opportunities for training and promotion within the meaning of s.49D(2)(b) of the Act.

7. The Tribunal erred in construing s.49D(2) of the Act as obliging an employer to make reasonable attempts to accommodate the employee with a disability.

8. The Tribunal erred in construing s.49D of the Act as obliging an employer to provide short and long term special or light duties positions for temporarily and permanently disabled members of the force.

9. The Tribunal erred in find that the conduct of the appellant constituted four distinct contraventions of the Act.

10. The tribunal erred in construing s.51(1)(a) of the Act, by failing to have proper regard to the Occupational Health and Safety Act 1983 (NSW) and the Fire Brigades Act 1989 (NSW).”

28 The respondent made the following reply:-

“1. There was no error of jurisdiction on the part of the Tribunal.

2. There was no error of jurisdiction or error in finding of fact by the Tribunal on this question.

3. The Tribunal properly applied the facts before it to the relevant statutory provisions including s.49D(2)(b) of the Act.

4. The Tribunal’s decision is reasonable in and appropriate in light of the material and evidence placed before the Tribunal. The appellant’s characterisation of the basis of the Tribunal’s finding is incorrect.

5. The Tribunal appropriately applied the relevant legislation including s.49B(1)(a) of the Act.

6. The Tribunal appropriately applied the relevant legislation including s.49B(2)(b) of the Act.

7. The Tribunal appropriate applied the relevant legislation including s.49D(2) of the Act.

8. The Tribunal appropriately applied the relevant legislation including s.49D of the Act.

9. The Tribunal’s finding were appropriate and reasonable in light of the evidence and material before the Tribunal.

10. The Tribunal properly considered the interaction of relevant legislation including the Occupational Health and Safety Act 1983 and the Fire Brigades Act 1989 with the Anti-Discrimination Act. Any error or omission on the part of the Tribunal in this regard is insufficient to disturb the correctness of the substantive findings of the Tribunal.”

29 The appeal to the Appeal Panel was, pursuant to s.113 of the ADT Act, limited to an appeal on questions of law or on the merits with leave. Although that leave was sought, it was refused and there is no present complaint about that.

30 At the hearing before the Appeal Panel the grounds were refined. Those going to liability were summarised at paragraph four of the judgment of the Appeal Panel as being: the jurisdictional ground (including an asserted error in finding future discrimination); the causation ground and the comparator ground.

The jurisdictional ground

31 It was submitted no contravention occurred within the six months prior to the complaint, (1) because the complaint, although referring to the defendant being refused the offer of computer training and the lack of promotional opportunity, did not otherwise or adequately refer to other disadvantages in his employment which the Tribunal found he had been placed under; (2) because the original conduct in 1971 did not constitute a “breach” of the Act (since the Act was not then in effect); and, (3) because, so it was submitted, there was no discrete act of contravention in the relevant period.

32 As to the second and third matters, the Appeal Panel held that the Tribunal had correctly found a continued discrimination commencing in 1971 and occurring during the complaint period and hence it had jurisdiction. It did so, upholding the Tribunal’s decision and applying Wollongong City Council v. Bonella & Ors (EOD) [2002] NSW ADTAP 26 and Najdovska & Ors v. Australian Iron & Steel Pty. Limited (EOC) (1985) 92-140.

33 As to the first matter, the Panel held that sufficient had been indicated in the complaint referring to a number of authorities, in particular, Langley v. Niland (1981) 2 NSWLR 104 and Commissioner of Police, NSW Police Service v. Orr (EOD) [2001] NSW ADTAP 16 on the question of how specific a complaint must be as to the disadvantages which might be considered as included in a complaint. The Appeal Panel held:-

Conclusion on scope of complaint

The causation ground

34 It was asserted by the plaintiff that the Tribunal had erred in holding that the defendant was denied promotion because of his disability. It was asserted that because the Tribunal had held that the defendant was in a non-operational position and that training and promotion were not available to those in non-operational positions, the Tribunal should have held, or it was not open to it to hold other than that it was not because of his disability he was denied promotion.

35 Reference was made to this matter in paragraphs 112 and 115 of the Tribunal’s decision. The Appeal Panel held:-

“39. The Tribunal explained at [112] and [115] that the ‘cause of the breach’ in each case was the action of the Commissioner in placing and then maintaining the applicant in a non-operational position. A reading of the whole decision in context makes it apparent that the word ‘cause’ in these paragraphs does not refer to the issue of causation in s.49B(1), but rather to the origins of the unlawful conduct. Under that section, for the Commissioner’s conduct to be unlawful it must, among other things, be ‘on the ground of’ Mr. Lavery’s disability. The Tribunal went on to determine, at [119] that the Commissioner’s conduct was ‘on the ground of ‘ Mr. Lavery’s disability, not because he was placed or maintained in a non-operational position.”

36 The Appeal Panel held that the plaintiff’s submission to it was misconceived. It held that the Tribunal had found that the discrimination was on the ground of the defendant’s disability and that the Tribunal had not erred, as it had been submitted it did, in going behind the “cause” to ascertain the underlying “ground” for the “cause” of the contravention, that is, the action of the plaintiff to the defendant’s disability by placing of him in the non-operational position and the maintenance of him there. It was that to which the Tribunal referred by way of describing the origin of the unlawful conduct.

The comparator ground

37 At paragraph 40, the Appeal Panel described this ground:-

“The third ground of appeal in relation to the liability decision relates to the Tribunal’s choice of a comparator. At [113] of their decision, the Tribunal said, ‘in denying the applicant opportunities for training and promotion the respondent treated the applicant less favourably than it treated other Level 3 fire-fighters who do not have his disability’. The Commissioner submitted that Level 3 fire-fighters were not the appropriate comparator group. According to the Commissioner other Level 3 fire-fighters were not in the same or similar circumstances to Mr. Lavery. The Commissioner said that the Tribunal had no evidence before it to reasonably reach the conclusion that an operational and a non-operational Level 3 fire-fighter were in the same circumstances, or in circumstances which are not materially different. The Commissioner submitted that the Tribunal failed to take into account the evidence of the nature of the work performed by operational fire-fighters which shows the circumstances are materially different.”

38 At paragraph 43, the Panel said:-

“The question arose during the course of the appeal proceedings as to whether there was any evidence before the Tribunal of the existence of other Level 3 fire-fighters who were not engaged in operational duties. Both parties agreed to provide the Appeal Panel with any references in the transcript to such people. Those references include the evidence about Darren Ellen referred to in the Tribunal’s decision, and that there were fire-fighters either on light duties or permanently incapacitated who did not perform operational duties.”

39 The reference to Darren Ellen was a reference to a matter referred to in paragraphs 113 and 116 to 117 of the Tribunal’s judgment.

40 The Tribunal held that the defendant should be compared with all other Level 3 Fire fighters since the Commissioner did not maintain two separate classifications of fire fighters.

41 In paragraphs 116 to 117, the Tribunal referred to the facts and history established by the evidence concerning the treatment of non-operational fire fighters. It said:-

“The effect of this practice was that a Level 3 fire-fighter with a disability who had been deployed in a non-operational position, such as the applicant, was placed in a ‘Catch 22’ position concerning training and promotion. There was no training provided as a matter of course, as there was for operational Level 3 fire-fighters. The only way to be promoted to the rank of Qualified fire-fighter was to successfully complete the training provided to operational Level 3 and Level 4 fire-fighters. Consequently, the applicant had no chance of being promoted because he was denied the opportunity to engage in the training provided to operational Level 3 fire-fighters. Whilst there was evidence, which we accept (see finding (8) at [105], that one fire-fighter below the rank of Qualified fire-fighter who was deployed in a non-operational position (Mr. Darren Ellen) received training and was ‘promoted’ to a more highly paid position, this training was not made available as a matter of course, as it was for operational fire-fighters. Mr. Ellen was not promoted in rank, but merely transferred to a more highly paid position.”

42 The Appeal Panel held at paragraphs 44 and 45:-

“44. The fact that Mr. Lavery was in a non-operational position whilst the vast majority of other Level 3 fire-fighters were in operational positions does not mean that their circumstances were materially different. The only difference between Mr. Lavery and other Level 3 fire-fighters is that Mr. Lavery has a disability which the Commissioner maintains renders him unfit for operational duties. The consequences of Mr. Lavery having a disability cannot be used to render the circumstances materially different. This point was recognised by the Human Rights and Equal Opportunity Commission in Sullivan v. Department of Defence (1992) EOC 92-421 at 79.005:-

‘It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.

45. The Federal Court has acknowledged this point. (See, for example, Commonwealth of Australia v. The Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-566 at 77,106 per Wilcox, J.) Ultimately, the question of whether the circumstances are the same or not materially different is a question of fact. Contrary to the appellant’s submission, the Tribunal took account of all the relevant evidence in coming to its conclusion. We can detect no error o flaw in relation to the Tribunal’s finding.”

Appeal to the Supreme Court

43 Before me the plaintiff challenged the correctness of the decisions both of the Panel and the Tribunal as being in error of law. The asserted errors were set out in the grounds with the summons.

44 The summons asserts two grounds of appeal. They are as follows:-

“1. The Tribunal erred in construing s.88(3) of the Anti-Discrimination Act 1977 (NSW) (‘the Act’) in finding that a decision made on 7 September 1971 constituted a contravention of the Act between 9 September 1998 and 9 March 1999.

2. The Tribunal erred in construing s.49B(1)(a) of the Act with respect to:-

(i) the meaning of ‘treat’ in s.49B(1)(a);

(ii) the question of ‘causation’; and

(iii) determining the proper comparator for the purpose of comparing the treatment accorded to the defendant and to a person without the defendant’s disability.”

45 Those grounds were elucidated in oral argument, as were the extensive written submissions of the plaintiff. When so elucidated and refined, the grounds boiled down to assertions that the Appeal Panel and the Tribunal had erred in law in holding that there was treatment of the complainant during the six months preceding the lodging of the complaint which amounted to unlawful discrimination under the Act (the jurisdiction ground), that the cause of the complainant being so treated was his disability (the causation ground) and that the treatment afforded to him should not have been compared with that afforded to operational firefighters (the comparator ground).

46 It was submitted that by reason of s.88(3) of the Act, the only contraventions that might be found were those, which occurred in the six months immediately prior to the lodging of the complaint, (the complaint period).

47 Section 88(1) and (3) are as follows:-

“(1) Except as provided by this section, a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person (other than a contravention in respect of which a specific penalty is imposed) may be lodged with the President by:-

(a) a person …

…

(3) A complaint shall be lodged within six months after the date on which the contraventions of this Act or the regulations which is the subject of that complaint is alleged to have been committed.”

The jurisdictional ground

48 Ground one asserts that the Tribunal and the Appeal Panel erred in law “in finding that a decision made on 7 September 1971 constituted a contravention of the Act between 9 September 1998 and 9 March 1999”. So expressed, the ground is most confusing and wrongly asserts that the Tribunal and the Appeal Panel found that the decision of 7 September 1971 constituted a contravention of the Act between the dates referred to. They did not.

49 As appears from the passages in its reasons I have earlier set out, the Tribunal concluded that it should uphold the submission that conduct of a continuing kind may constitute as a contravention, once the relevant provisions of the Act come into effect, even though the conduct may have commenced much earlier in time. It held that conduct might still be properly the subject of a complaint to which s.88(3) applied, provided that the “state of affairs” which allegedly constituted unlawful discrimination, continued or existed during the six month period prior to lodgement of the complaint, referring to the decision of the Appeal Panel in Wollongong City Council v. Bonella [2002] NSWADTAP 26 at 86.

50 In this regard, the Appeal Panel held:-

Conclusion on conduct before the relevant period

30. The Tribunal characterised its findings that the letter written to Mr. Lavery on 7 September 1971 was still operative during the ‘relevant period’ as a finding of fact. We agree that it is a finding of fact. The Commissioner submitted that the contents of the letter constituted a discrete act that was not continuing or ongoing. In other words, the Commissioner disagrees with the Tribunal’s factual finding.

31. Pursuant to s.113(2) of the ADT Act, an appeal ‘may be made on any question of law, and with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision’. The Commissioner’s Notice of Appeal did seek leave to have the appeal extended to the merits. The only reason relevant to the jurisdictional issue for requesting leave was that ‘the Tribunal’s finding of facts are inadequate and failed to refer to the evidence adduced by the parties: see [105]’. A submission that the Tribunal’s findings were inadequate, is not the same as saying that the finding was not available on the evidence. No submission was made to the effect that the finding of fact was, for example, ‘inconsistent with the facts incontrovertibly established by the evidence’ or ‘glaringly improbable’ so as to constitute an error of law. (See Devries v. The Australian National Railways Commission (1992) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh, JJ.). In any event, the Commissioner appeared to concede at the conclusion of the hearing that the scope of the appeal was at least initially directed towards identifying a legal error. (See Brandusoiu v. Commissioner of Police [1999] NSWADTAP 8 at [14].

32. In Paing Pty. Limited & Ors v. Golden Harvest (Aust) Pty. Limited [2003] NSWSC 750, Newman, J. set aside a decision of the Appeal Panel of this Tribunal on the basis that it was not open to the Appeal Panel to overturn a finding of fact made by the Tribunal at first instance when it had not extended the appeal to a review of the merits of the decision. Similarly in this case, it is not open for us to overturn the Tribunal’s finding of fact that the letter written to Mr. Lavery on 7 September 1971 was still operative during the ‘relevant period’. (See also Haines v. Leves & Anor (1987) 8 NSWLR 442, per Kirby, P. at 470 and French v. Sydney Turf Club Limited [2003] NSWADTAP 10, 7 April 2003.) Consequently, the Commissioner’s submissions on this point must fail.

33. Alternatively, if our characterisation of the question of fact, question of law distinction is not correct, and the Commissioner has identified a question of law, we find that no error has been made out. The Tribunal’s finding that Mr. Lavery was still subject to the direction in the 1971 letter is entirely consistent with the evidence and was not in dispute before the Tribunal, despite having been put in issue on the appeal. (See [110] of the Tribunal’s liability decision.)

34. Similarly, there was no dispute before the Tribunal that if the conduct was still operative or ongoing during the relevant period, it could constitute a ‘contravention’ pursuant to s.88(3) of the AD Act.

…

35. The Commissioner did not challenge these findings. Consequently as the Tribunal correctly found that the direction to Mr. Lavery in the 19871 letter was still operative during the relevant period, it had jurisdiction to entertain the complaint.”

51 Relevant passages in the judgment of the Appeal Panel were, however, referred to the court by counsel for the plaintiff in her extensive and detailed written submissions. All of those passages make it perfectly clear that the Appeal Panel and the Tribunal at all times held that the decision notified in the letter of 7 September 1971 that the complainant would remain a Second Class Fireman was operative and continuing thereafter including during the six month period which all parties accepted as being the entire temporal ambit of the complaint i.e. that what was involved was “treatment” within the complaint period not the consequence of earlier treatment.

52 It is sufficient to show that the Tribunal and the Appeal Panel did not err as submitted, by referring to the following passages taken from paragraphs 37 to 40 of the plaintiff’s written submissions, portions of which I have already referred to.

“The Appeal Panel at (AB 12 paragraph 23) said:-

‘… the Tribunal did not find that Mr. Lavery’s complaint was substantiated on the basis of a finding that a breach of the AD Act had occurred in 1971. A reading of the Tribunal’s decision in context makes it abundantly clear that the discrimination was ongoing from that date, and was continuing during the relevant period.’

In the First Decision (see AB 86 at paragraph 110), the Tribunal found:-

first breach

That determination concerning the applicant’s employment was still operative during the relevant period and at the time of the hearing of this complaint over 30 years later

Then the Appeal Panel (see AB 14 paragraph 30) stated:-

still operative

The Appeal Panel referred to an alternative approach (see AB15 at paragraph 33):-

‘Alternatively, if our characterisation of the question of fact, question of law distinction is not correct, and the Commissioner has identified a question of law, we find that no error has been made out. The Tribunal’s finding that Mr. Lavery was still subject to the direction in the 1971 letter is entirely consistent with the evidence and was not in dispute before the Tribunal, despite having been put in issue on the appeal. (See [100] of the Tribunal’s liability decision.)’

53 The relevant words I have set in bold.

54 It was argued before me that the Appeal Panel’s approach in both respects was in error, one, because the Act has no retrospective operation, two, the Act makes no express provision for continuing contraventions, three, the Act makes no express provision for complaints to be about continuing effects of a decision earlier in time than the Act relevantly coming into effect to produce a contravention. It was implicit in the submissions that it was contended that unless there was a new, discrete, positive act of discrimination within the six month period, it was an error of law, indeed an error of jurisdictional fact, for the Tribunal or the Appeal Panel to hold that that which had previously come into existence, and continued in existence, could amount to a contravention once the Act applied.

55 At times the plaintiff’s submission suggested that the Tribunal and the Appeal Panel had held that the 1971 decision underlying the letter of 7 September 1971 was a contravention of the Act notwithstanding that the Act was not then in existence. It was said that when it came into existence it did not have retrospective effect. At no time do I see that any such finding occurred. The finding only related to the complaint period. That the state of affairs had commenced earlier was relevant to that matter.

56 Rather than err as submitted both the Appeal Panel and the Tribunal had regard to the actual context in order to establish the state of affairs that existed in that period. Both the Panel and the Tribunal held that state of affairs was not merely passive but active and positive, that is to say, both held that the determination that the complainant would remain in the position of a non-operational kind in which he had been placed in 1971 by reason of his disability was actively and positively implemented by the plaintiff during the complaint period i.e. the complaint was “treated” less favourably and requirements to which Sec 49B1(b) related, were applied to him.

57 It was submitted that insofar as it was a question of fact for the Tribunal to decide whether there was an act or relevant conduct during the period, the Tribunal had erred in law in so finding, in that the necessity to find such a fact properly underlay the ascertainment of jurisdiction, that is to say, it was submitted that it was a jurisdictional fact that conduct amounting to a contravention occurred in the six month period. It was submitted that an error in finding that fact was therefore an error of law. I see no error in the Tribunal having found that fact. I do not see that the decision of 1971 was not continuous, operative, ongoing and effective during the six month period. I see no error of fact or law.

58 As a further submission, it was put that the necessary fact had to be within the terms of a valid complaint made under the act. It was also submitted in connection with this ground that the form of complaint did not comply with the Act. As it was raised before me, this matter had not been raised before. It seems to be raised before me on the basis that the document constituting the complaint had to make specific assertions of identified terms or conditions of employment, acts, decisions or conduct, detriments, requirements and less favourable treatment which occurred during the six month period and to specifically assign them to particular applications of Sections 49B and 49D as though a criminal offence had been charged.

59 Having regard to the terms of the document and the way in which the parties had conducted their respective cases before the President, the Tribunal and the Appeal Panel, I do not see there is any legal insufficiency by way of lack of particularity of those matters. Nor do I detect in the Act such a specific requirement as is asserted, particularly since no particular formality is required by the Act and in particular, Section 88, for a complaint and certainly not the precision and breadth of a criminal charge or a common law pleading. The Panel properly applied the decisions to which I refer above at [34]. I see no error. The passage cited in the Plaintiff’s submission from Reyes-Gonzales v Sydney Institute of Technology (1998) NSWEOT (6 March 1998) per Murrell DCJ

3.7 Where the Tribunal lacks jurisdiction because a matter referred to the Tribunal is not a proper complaint, the Tribunal should decline to inquire into the “complaint”.

3.8 The Tribunal’s jurisdiction to inquire into a complaint depends upon whether there is a written complaint “in respect of” depends very much upon the context in which it is found. Generally, the expression has the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer: ….

Langley v Niland (1981) 2 NSWLR 104 at 107-108.

The President’s jurisdiction to investigate and the Tribunal’s jurisdiction to hold an inquiry depends upon the claimed occurrence of what amounts to a contravention of the Act or the regulations, and that claim must e apparent on the face of the written complaint:

Nestle Australia Ltd v The President and Members of the Equal Opportunity Board and Ors (1990) EOC 90-281, State Electricity Commission of Victoria v Rabal and Ors (1997) EOC 92-875. (emphasis added)

not only does not support the Plaintiff’s contention, but fully and properly read, by reading not only the words underlined but also their context, is directly against that contention.

60 Both the Tribunal and the Appeal Panel in most extensive and detailed decisions examined the evidence of what had occurred during the s ix month period and its effects. The finding of the breadth of discrimination was, in my view, sufficiently open considering the terms of the complaint, even if an approach requiring some specificity was required, although I see no warrant for a requirement to descend to such detail as was submitted.

61 Even considering this argument as illustrative of the central thrust of the submission, that is, that either that which had occurred was so shrouded in history as not to be effectively operative during the period, or that a continuing contravention is not what the Act refers to, I find no error. The discrimination during the period was patent, and its extent obvious, whatever the history. The Act plainly speaks about contravention during the relevant period whether it occurred before or not. Its purpose was to put a stop to contravention, not to preserve some “existing use”. The Act should not be read as protecting from liability those who kept contravening the Act after it applied.

62 The decision of the Tribunal and the appeal panel applying the authorities referred at [32] above, were entirely orthodox. I see no substance in the submissions that the Tribunal and the Appeal Panel failed to address a difference between a discrete act with ongoing consequences and an act which may be described as continuing because the very conduct which produce the contravention continued. Whether one regards the decision communicated to the applicant on 7 September 1971 as a discrete act or not matters in this case very little. Conduct, which commenced then, continued thereafter. I cannot see that it was necessary for the Tribunal to do more than ascertain whether there was relevant discriminatory conduct amounting to a contravention during the six month period before the complaint, albeit it might have arisen in a prior history, for there to be liability.

63 The Tribunal found both direct and indirect discrimination. It was argued this constituted an error. It was contended that the complainant had a case of indirect discrimination, therefore no direct discrimination could lawfully be identified as falling within the period. To deal with that argument I need to have regard to the relevant provisions describing those concepts since what is asserted is that the two concepts are antipathetic and that to hold they can co exist is an error of law with profound consequences having regard to the ambit of the complaint.

64 Disability is defined in s.4 and s.49A of the Act. At all times the plaintiff’s loss of an eye was accepted by all parties as covered by that definition.

65 The discrimination referred to in s.49B(1)(a) is commonly described as direct discrimination; that in s.49B(1)(b) is commonly described as indirect discrimination. It was asserted that the complainant’s case was throughout conducted on the basis of a claim of direct discrimination that it was that kind of discrimination to which the complainant referred, and no claim was made for indirect discrimination. The submission is made that the complainant would not have been entitled to recover for indirect discrimination because of the terms of the complaint. Indeed, the submission seems to go further and assert that because there was indirect discrimination, there could not be any entitlement to succeed for direct discrimination and because what was complained about was direct discrimination, the plaintiff could not succeed for something not in the complaint. I do not accept that submission in any of its guises. The submission ignores the fact that the complaint alleges facts and that the Tribunal found these facts, which were capable of amounting to both forms of discrimination, not one rather than another.

66 As appears from the passages in its reasons I have earlier set out, the Tribunal, however, concluded that it was open to it to uphold the submission that conduct of a continuing kind may constitute as a contravention, once the relevant provisions of the Act come into effect, even though the conduct may have commenced much earlier in time. It held that conduct might still be properly the subject of a complaint to which s.88(3) applied, provided that the “state of affairs” which allegedly constituted unlawful discrimination, continued or existed during the six month period prior to lodgment of the complaint, referring to the decision of the Appeal Panel in Wollongong City Council v. Bonella [2002] NSWADTAP 26 at 86.

67 The Act defines the discrimination by the manner in which the aggrieved person is treated i.e. less favourably or by otherwise imposing on the aggrieved person a requirement or condition which the person cannot meet but others without can. Although it is said that the one set of conduct cannot be simultaneously both forms of discrimination, reliance for that was placed on the judgment of Sackville J in Australian Medical Council v Wilson (1996) 68FCR 46 at 55, on the analogous provisions of the Racial Discrimination Act. This submission is highly technical. It does not assert that the form of discrimination complained about was not made out but asserts that although it was, a contravention should not be found because it might also have been found to be another form of discrimination and hence another contravention

68 That decision was concerned with the relationship between s 9(1) and s 9(1A) of the Racial Discrimination Act (1975). Heerey and Sackville JJ held that the two provisions were mutually exclusive, having considered the reasoning in Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 and Waters v Public Transport Corporation (1991) 173 CLR 349. The issue concerned whether the more particular and express statement in S 9(1A) supplies the only statutory basis for finding indirect discrimination or whether the section should be treated as merely explanatory of the more general provision s 9(1). (See Heerey J pp 52-55 and Sackville J pp 73-74) The decision is concerned with identifying a statutory basis for liability, not with categorising particular conduct. The decision relates to identifying the particular applicable statutory provision.

69 Although a different statue was being construed and the circumstances were very different, those views, expressed as they are in the context of discrimination law, and derived from judicial examination in earlier cases of NSW statutory provisions, are entitled to the greatest respect, but those views do not lead me to conclude that because particular conduct complained about amounts to direct discrimination, that or other conduct included in the complaint cannot be indirect discrimination, nor that there is any error in considering whether conduct is one form of discrimination or alternatively the other.

70 I reject the submission that the two kinds of discrimination cannot be constituted by similar conduct and reject the submission that because such conduct might be indirect discrimination, the complainant may not, in law, assert it could also amount to direct discrimination

71 The Tribunal at [121] found two distinct contraventions of s 49D(2)(b). It held that the conduct, which constituted those contraventions, also amounted to two separate breaches of s 49D(2)(a) and referred to the overlap arising from both provisions relating to the terms and conditions of employment. It did not hold, in my view, that the same facts should be simultaneously characterised as both kinds of discrimination, merely that as a matter of analysis those facts may be approached from either view point yielding the conclusion there had been contravention. At [122] direct discrimination is concluded and the irrelevance of needing to do more explained. The Tribunal found facts and applied the relevant statutory provisions to them. It did not purport to confine the ambit of complaint to one category of discrimination disregarding the other. In my view there is nothing in the authorities to show any error in the Tribunal approaching the matter as it did, nor any restriction arising from the form or content of the complaint, which would support the submission that its effect should be confined. No such ground of appeal, as is now sought to be made, was taken before the Appeal Panel, although the causation and comparator grounds have some relevance to what is now put.

The Causation Ground

72 Here it was contended that the Tribunal had found that “the reason (emphasis in the original submission reproduced) the Defendant was not considered for promotion was that he was in a non-operational position. Having made this finding it was not open to the Tribunal to conclude that the reason he was denied promotion was because of a disability.”

73 Reference was made to paragraphs [112] and [113] of the Tribunal’s decision. It was asserted that as a matter of law it was not open to the Tribunal to find the underlying cause to the Defendant being placed in the non-operational position because it was asserted the complaint did not specifically allege discrimination in appointing him to that position and the appointment was too long ago. It was contended that at most such reasoning as was asserted to be in error would have been available if there had been a complaint of indirect discrimination and that had not been in terms alleged. For the reasons I have referred to above when discussing the jurisdictional ground, I do not accept that a finding of indirect discrimination was unavailable o that such a finding would preclude a finding of direct discrimination.

74 I reject these submissions. The complaint need not be that particular, nor is the finding of a reason or description of a process conclusive of a conclusive or an exclusive sole cause. The fact that the process of discrimination involves phases leading to the discriminatory consequence or took a number of steps, does not require that analysis cease at the most recent. Section 49B and 49D look to the ground of disability and how that ground relates to the treatment of the aggrieved person by the employer or the placing of that person under onerous requirements by the employer. While the reason given by the employer may be that the failure to promote is because the employee is in a position from which as a policy promotion is not afforded that merely at most describes a prima facie cause. I see nothing, including having referred to the argument concerning direct and indirect discrimination, as being mutually exclusive which would in law have meant that by referring to a “reason” the Tribunal would have erred in proceeding to determine whether the ground of the Defendant’s disability was what gave rise to the differing treatment. Causation is a question of fact as is the detection from the evidence of the ground for differing treatment, I find no error of law.

Comparator Ground

75 It was contended that to compare the treatment of or requirements placed on the defendant with persons who did not suffer the relevant disability was in error. Reference was made to the judgment of the High Court in Purvis v State of New South Wales (2003) 202 ALR 133 of Gummow, Hayne and Heydon JJ. It was said that it was necessary to compare the Defendant with persons who were non-operational not operational fire fighters.

76 This argument disregards that the defendant was placed in the non-operational position on the ground of his disability. Applying Purvis the test is how would he have been treated if he was not disabled. The answer given by the Tribunal and the Panel was clearly right.

Conclusion

77 For the forgoing reasons I conclude that none of the grounds are made out and the summons should be dismissed with the Plaintiff to pay the Defendants costs.

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Citations

Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268

Most Recent Citation

Matthews v Markos [2019] FCA 1827

Cases Citing This Decision

7

Peng v Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division [2018] NSWCATAD 210

Peters v The University of Sydney [2015] NSWCATAD 238

Banovec v Director General, Department of Attorney General and Justice (Commissioner of Corrective Services NSW) [2014] NSWCATAD 27

Cases Cited

8

Statutory Material Cited

3

Lavery v Commissioner of Fire Brigades [2003] NSWADT 93

Stevenson v Murdoch Community Services Inc [2010] FCA 648

Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56

CITATION:	COMMISSIONER OF FIRE BRIGADES (NEW SOUTH WALES) v. TERENCE LAVERY [2005] NSWSC 268
HEARING DATE(S):	8 September 2004
JUDGMENT DATE :	6 April 2005
JURISDICTION:	COMMON LAW
JUDGMENT OF:	Greg James J at 1
DECISION:	I dismiss the summons.; The plaintiff is to pay the defendants costs.

CATCHWORDS:	Appeal - Discrimination - Nature of discrimination - Jurisdiction of Anti Discrimination Tribunal - Continuing discrimination commenced before Act - Requirements for valid complaint - Indirect and direct discrimination - Appropriateness of comparison with non disabled workers.
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Racial Discrimination Act (1975) Anti-Discrimination Act 1977
CASES CITED:	Purvis v State of New South Wales (2003) 202 ALR 133 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 Waters v Public Transport Corporation (1991) 173 CLR 349 Lavery v. Commissioner of New South Wales Fire Brigade [2003] NSWADT 93 Wollongong City Council v. Bonella & Ors (EOD) [2002] NSW ADTAP 26 Najdovska & Ors v. Australian Iron & Steel Pty. Limited (EOC) (1985) 92-140 Australian Medical Council v Wilson (1996) 68FCR 46 at 55 Langley v. Niland (1981) 2 NSWLR 104 Commissioner of Police, NSW Police Service v. Orr (EOD) [2001] NSW ADTAP 16 Reyes-Gonzales v Sydney Institute of Technology (1998) NSWEOT
PARTIES:	COMMISSIONER OF FIRE BRIGADES (NEW SOUTH WALES) v. TERENCE LAVERY
FILE NUMBER(S):	SC No. 30117 of 2003
COUNSEL:	Plaintiff: K Eastman. Defendant: J Nolan
SOLICITORS:	Plaintiff: Leigh Virtue & Associates Defendant: Middletons Lawyers