Eade v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 130

CITATION:	Eade -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 130
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Damien Phillip Eade RESPONDENT Commisioner of Police, New South Wales Police Service
FILE NUMBER:	001081
HEARING DATES:	05/06/2002
SUBMISSIONS CLOSED:	06/05/2002
DATE OF DECISION:	07/29/2002
BEFORE:	Bartley R - Judicial Member; Lau L - Member; Nemeth de Bikal L - Member
APPLICATION:	Race Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT E Brus, barrister
ORDERS:	1. Complaint dismissed; 2. No order as to costs

1 Damien Phillip Eade (the Applicant) an indigenous Australian was employed as a trainee administrator in a position designated ‘Traineeship Aboriginal –designated position’ with the NSW Police Academy at Goulburn from 25 July 1996 until his employment was terminated on 21 November 1996.

2 The Applicant made a complaint to the Anti-Discrimination Board on 29 June 1999 against the Commissioner of Police (the Respondent), in effect alleging discrimination in employment during his period of employment with the Commissioner of Police.

3 As the complaint was lodged outside the six months statutory period the President of the Board exercised his discretion to accept the late complaint.

4 The relevant sections are sections 7 and 8 of the Anti-Discrimination Act 1977.

5 The Applicant appeared for himself and Ms Brus appeared for the Respondent.

6 When the Applicant commenced his traineeship it was explained to him he had to attend TAFE two days a week and work three days per week at the NSW Police Academy at Goulburn.

7 During the period of his employment he had an accident when a car collided with his bicycle and he said he suffered some head injuries but returned to work within a few days.

8 At the end of October he was suspended from attending classes at TAFE. The Applicant said he did not mind going to TAFE. He said it was all right. But it was just that they could not cater for indigenous people because they did not know anything about cross-culture.

9 He was asked the following question in cross-examination:

Q. From July to November 1996 when you were employed in your traineeship, during that period had anyone at the New South Wales Police Academy discriminated against you on the grounds of your race.

A. No

10 There was about this time an incident with the Police in the main street at Goulburn concerning the riding of his bike inappropriately (it was alleged he did not have his hands on the handlebars) and Sgt. Moody from the Academy asked the Applicant to see him. The Applicant became upset following the interview and he said he was traumatised over the matter. He said he may have been out of control but was not a threat to anyone. His aunt was called down.

11 Under cross-examination it became clear the act of discrimination he was complaining about was the fact the police had apparently been called to escort him from the campus.

12 The Applicant called a witness Mr Byron Lee Davis who currently holds the position of Associate Professor, Assistant Director of Academic Development at the Batchelor Institute at Batchelor.

13 At the time of the Applicant’s employment at the Police Academy at Goulburn, Mr Davis said he was the Lecturer in Aboriginal Community Studies and Multicultural Studies, and had a portfolio within the multicultural section on the Aboriginal education and training of police recruits and operational police across New South Wales.

14 He was the author of a report about the Applicant and was his ‘Mentor’. The report was in evidence.

15 He gave evidence by conference link from Batchelor.

16 He put into perspective the role of the Academy, himself and the training of Mr Eade.

17 He explained that Mr Eade had, because of his cultural background –‘culture shock’ -after he joined the Academy. He said, in his opinion the Academy’s treatment of Mr Eade, in some instances, lacked cultural understanding.

18 Mr Davis referred to the incident in which it appeared to Mr Eade that the Academy called security to escort Mr Eade off the campus.

19 Mr. Davis said in actual fact that it was he, himself that had counselled against the Security’s offer to escort Mr Eade off the premises and which was accepted by the Security personnel.

20 The applicant asked Mr Davis the following questions:

Q. ‘When the police officers and that come to escort me from the ground did you think it was very fair at all?’

A. ‘No, the occasion that the security were put on to you Damien, when you were told to leave the institute, the campus you came to my office, and the sergeant walked in the door wanting to escort you off the campus.’

Q. ‘Yep’

A. ‘And I intervened and said that you were - ‘He’s right. He’s not – there’s no problem here’ and so I understood at the time that there was some approach to have you removed, and I intervened and made that process, so, I guess for me at the time I remember that I wasn’t too happy with those instructions’.

21 Later on the Judicial Member said:
‘But, see the problem I am facing – and listen to me for a moment- is you have nominated the fact that you were removed from the premises by police and you were discriminated on that basis. Now, your own witness said that didn’t happen.’
Mr Eade replied

‘Yeah…because he told them that that was not necessary it was not needed’.

Judicial member:

‘That’s right. That is quite correct’.

Mr Eade said:

‘Why was they there in the first place then?’

Judicial member said:

‘I see. What you are saying then is you were discriminated against because they were sent and spoke to your friend and he stopped it, because that is what he said.’
22 Ms Kay, the Local Area manager who was the Acting Personnel Co-ordinator in 1996, was called by the Respondent, tendered a statement and gave evidence. She was cross-examined by the Applicant. In her statement, which was tendered, she gave a very detailed account of Mr Eade’s conduct at the Academy, which led to his dismissal.

Conclusion

23 Ms Brus submitted earlier there was no case to answer. Possibly there was not but the Tribunal took the view that as the Applicant was unrepresented he should have the opportunity to present his case in full. Whilst the matter did take most of the day everything possible was done to enable the Applicant to present his case.

24 The reasons for the dismissal of the Applicant are set out in the evidence of Ms Kay and his dismissal was justified. The question of his race did not enter into consideration in the decision to dismiss him. It does appear that the Police were making every effort to employ indigenous people, but it does seem on this occasion their efforts were in vain and did not work out.

25 The Applicant at all times relied on the fact that he was forcibly removed from the Academy as evidence of discrimination on the basis of race. In actual fact he was not so removed.

26 The Tribunal considered all of the other evidence to ascertain whether or not there was any evidence to support the Applicant’s claim of discrimination on the basis of race but are satisfied there was no such evidence.

27 The Tribunal finds that the Applicant has not, on the balance of probabilities made out his case, the complaint is dismissed. No order as to costs.