El Kassir v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 319

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

El Kassir v Commissioner of Police, NSW Police Force [2017] NSWCATAD 319

Hearing dates:

29 August 2017

Date of orders:

31 October 2017

Decision date:

31 October 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Hennessy LCM, Deputy President

Decision:

(1) Mr El Kassir’s application for a complaint of disability discrimination against the Commissioner of Police, NSW Police Force to proceed is granted.

 

(2) Mr El Kassir must direct all communications with the Respondent in connection with these proceedings to the solicitors for the Respondent.

 (3) The matter is listed for a case conference on 8 November 2017 at 12.30 pm.

Catchwords:

HUMAN RIGHTS – where President of Anti-Discrimination Board declined a complaint of discrimination – where applicant required President to refer complaint to the Tribunal – whether fair and just for leave to be granted for complaint to go ahead

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)
Law Enforcement (Powers and Responsibilities) Act

Cases Cited:

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Dutt v Central Area Health Services [2002] NSWADT 133
Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Texts Cited:

Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014)

Category:

Procedural and other rulings

Parties:

Hani El Kassir (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Self-Represented (Applicant)
K & L Gates (Respondent)

File Number(s):

2017/00219645

Publication restriction:

Nil

reasons for decision

Overview

1. When the Commissioner of Police refused Mr El Kassir’s application to be appointed as a police officer, he complained to the President of the Anti-Discrimination Board. The complaint was that the Commissioner of Police had discriminated against him on the ground of his disability (depression). The President declined Mr El Kassir’s complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a)(i). Mr El Kassir has asked the Tribunal for permission for his complaint to go ahead: Anti-Discrimination Act, s 93A(1). The complaint cannot go ahead unless the Tribunal gives Mr El Kassir permission or ‘leave’ to do so.

2. The Commissioner’s case is that Mr El Kassir’s complaint either lacks merit or is vexatious. I do not agree and have decided to give leave for Mr El Kassir’s complaint to go ahead.

Legal principles

3. The Supreme Court set out the principles to be applied when determining whether to grant leave for declined complaints to go ahead in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J:

(1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights";

(2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted"; and

(4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

Background

4. Mr El Kassir applied to join the Police Force on 25 August 2016. He had applied nine times since 2004 but with no success. The President declined all his allegations relating to applications to join the Police Force before 25 August 2016.

5. To be appointed as a police officer, an applicant must successfully complete a multi-stage application process. Some of those stages are: academic application, police application, police entrance exam, vetting, physical testing, medical assessment and interview. Applicants who are rejected at any stage are considered to be “not competitive” and their applications are not progressed.

6. I understand that Mr El Kassir’s application was rejected at the second stage of the process. On 10 March 2017 an employee on behalf of the Commissioner of Police wrote to Mr El Kassir stating that his application for employment was “not competitive”. The letter noted that “NSW Police Force is under no obligation to employ any person regardless of an applicant’s ability to meet the assessment criteria.”

7. According to the Commissioner of Police, the decision not to progress Mr El Kassir’s application to the next stage was based on concerns about his lack of integrity in failing to declare that his taxi-driver authority had been cancelled, rather than merely suspended, in 2007. The decision to reject him as being “not competitive” was also said to be based on Mr El Kassir’s failure to disclose the fact that he had been given a “move on” direction by a police officer on 23 November 2015: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 197. According to the Commissioner, Mr El Kassir’s failure to disclose this information in his online application demonstrates that he is dishonest.

Does the complaint lack merit?

8. If it is apparent that the complaint lacks substance, leave may be refused if that is the fair and just outcome.

9. It is unlawful for a prospective employer to discriminate against a person on the ground of disability in “determining who should be offered employment”: Anti-Discrimination Act, s 49D(1)(b). The Commissioner of Police is an employer and, through his staff, he rejected Mr El Kassir’s application at the second stage of the recruitment process.

10. I understand Mr El Kassir’s complaint to be one of direct disability discrimination as defined in s 49B(1)(a):

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

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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

11. The two elements which Mr El Kassir must prove to substantiate a complaint of disability discrimination are “differential treatment” and “causation”: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. The differential treatment component requires a comparison to be made between the treatment afforded to Mr El Kassir and the treatment that was or would have been afforded to a person who did not have his disability in the same or similar circumstances. The causation component requires Mr El Kassir to prove that at least one of the reasons for the treatment was his disability.

12. In summary, for Mr El Kassir to substantiate his complaint, he would have to prove that:

1. he has a disability, he has had a disability, he is thought to have a disability or he is thought to have had a disability;

2. the Commissioner of Police has determined that he should not be offered employment;

3. in making that decision, the Commissioner has treated him less favourably than he treated or would have treated a person without his disability in the same or similar circumstances; (differential treatment) and

4. one of the reasons for that treatment was his disability (causation).

Disability

13. On the basis of Mr El Kassir’s application I have assumed that he is alleging that the Commissioner has discriminated against him either because he has depression or it is thought that he has depression. It is likely that if this matter goes to hearing, the Tribunal would find in either case, that Mr El Kassir has a disability as defined in s 4 and s 49A of the Anti-Discrimination Act.

Treatment

14. If this complaint goes to a hearing, it is arguable that by advising Mr Kassir that his application was “not competitive”, that the Commissioner of Police has decided not to offer Mr El Kassir employment as a police officer: Anti-Discrimination Act, s 49D(1)(b).

Was the treatment “differential treatment”

15. The first component of the test for direct disability discrimination in s 49B(1) is the "differential treatment" test. The comparator in this case is a person without depression who has applied to be a police officer in the same or similar circumstances. In the absence of an actual person whose treatment can be compared with the treatment given to Mr El Kassir, the Tribunal would have to rely on a hypothetical person. Essentially, the question is whether the Commissioner would have rejected another applicant without a disability, who failed to disclose that his taxi driver authority had been cancelled, (as distinct from merely suspended) and who failed to disclose that he was the subject of a ‘move on” direction.

16. The online application, titled NSW Police Force Professional Suitability Application, states, “it is imperative when you are completing this application that you do so honestly. Failure to declare information will generally result in an application being rejected.” Mr El Kassir agrees that he was not 100% accurate in the answers he gave on the application, but that he was 80% accurate and that he was not deliberately dishonest.

17. The Commissioner’s policy is that failure to declare information on the online application form will generally result in an application being rejected. My understanding is that rejection is a discretionary decision based on the particular circumstances of each case.

18. If the complaint goes ahead, Mr El Kassir may be able to obtain evidence as to how other applicants who have failed to disclose the same or similar kinds of information, have been treated. On the basis of the evidence currently before the Tribunal it is not possible to assess the likelihood of the Tribunal finding that the differential treatment element of discrimination has been established.

Causation

19. The second element of direct discrimination is causation. At least one of the reasons for rejecting Mr El Kassir application must be the fact that he has or is thought to have depression: Anti-Discrimination Act s 4A and s 48B(1) and (2).

20. According to the Commissioner, the reason for not progressing Mr El Kassir’s application was that he is dishonest. That inference is based on the following circumstances.

21. Mr El Kassir answered “yes” to the following question on the application: “Have you ever had disciplinary action taken against you in the course of your employment due (but not limited) to: inappropriate or poor conduct; inappropriate or poor behaviour; inappropriate or poor performance?” He disclosed that his taxi driver authority had been suspended in 2007 but did not disclose that it had subsequently been cancelled. Mr El Kassir denied that he deliberately failed to declare this information. He submitted that it should make no real difference whether he declared that his authority had been suspended or suspended and then cancelled.

22. The Commissioner also relied on Mr El Kassir’s failure to disclose a second incident which took place on 23 November 2015. A record of this incident in COPS E - 60115829 records a fight in the technical section of Bankstown library. Mr El Kassir received a “move on” direction. According to the Commissioner, the failure to disclose that direction is another example of choosing not to declare relevant information. Mr El Kassir says that he did not declare the “move on” direction because he was the victim of in the fight in the library. He says the Commissioner is trying to find whatever excuse he can to exclude him from the Police Force.

23. I have not taken into account any information about the circumstances of the incident on 23 November 2015 or the reasons that Mr El Kassir’s taxi driver authority was suspended and then cancelled. My understanding is that the Commissioner’s case is that he relied exclusively on Mr El Kassir’s non-disclosure of the information and not on the circumstances of the related events.

24. There is some evidence which may support a conclusion that a reason for rejecting Mr El Kassir’s application was non-disclosure of certain information and that the inference can be drawn that he is dishonest. But even if a Tribunal made that finding, it may also find that Mr El Kassir’s disability was another reason for the decision not to progress his application. Disability only needs to be one of the reasons for the treatment. It does not have to be the substantial or the dominant reason: Anti-Discrimination Act s 4A.

25. Mr El Kassir says he disclosed his medical history of depression in previous applications to join the NSW Police Force. He relies on a letter written to him by C Borton on 30 March 2004. In that letter Ms Borton wrote that “there are concerns with the fact that you have a history of depression and are currently taking medication.” Mr El Kassir did not provide a copy of this letter to the President of the Anti-Discrimination Board. He says that was an oversight on his part. Mr El Kassir does not know whether any employee of the Commissioner of Police had access to his medical history or the letter when they made the decision.

26. The Commissioner denies that he took Mr El Kassir’s medical history into account when making the decision. According to the Commissioner, it is not until a later stage of the recruitment process that an applicant’s previous history is considered. The only matters taken into account at stage 2 were said to be the application and any response by the applicant to questions asked by the Commissioner.

27. If the person assessing his application had no knowledge of Mr El Kassir’s medical history, it is likely that a Tribunal would find that the decision was not made on the ground of disability. On the other hand, if Mr El Kassir can prove that the person assessing his application did have that knowledge and that it was one of the reasons for the decision, the causation element of direct discrimination may be established.

28. Even if leave were granted for the complaint to go ahead, the Commissioner submitted that the Tribunal does not have power to order that Mr El Kassir be employed. I agree with that view. Mr El Kassir has reached stage 2 of a multi-stage recruitment process. If he substantiates his complaint, that would arguably entitle him to progress to Stage 3. However, the unavailability of a particular remedy is not a sufficient basis to refuse leave.

Is the complaint vexatious?

29. If it is apparent that the complaint is vexatious, leave may be refused if that is the fair and just outcome. According to the author, Bernard Cairns, an allegation will be vexatious if it cannot succeed and is made for the purpose of harassment: Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 507. According to the Commissioner, Mr El Kassir’s history of bringing claims, together with his conduct in these proceedings, demonstrates a vexatious intent on his part.

30. Since 2004, Mr El Kassir has made nine unsuccessful applications to join the NSW Police Force. In relation to two of those applications, that I am aware of, he complained to the President of the Anti-Discrimination Board. In the first case the President declined the complaint as lacking in substance. The Administrative Decisions Tribunal (one of the predecessors to the Administrative and Equal Opportunity Division of NCAT) granted leave for the complaint to go ahead. No written reasons were requested or provided for that decision. The complaint subsequently settled at mediation. (El Kassir v Commissioner of Police, NSW Police Force File No. 1010110.)

31. Following another unsuccessful application to join the Police Force, Mr El Kassir complained to the President of the Anti-Discrimination Board in 2013. The President referred the complaint to the Administrative Decisions Tribunal and the matter was resolved before a hearing. (El Kassir v Commissioner of Police, NSW Police Force File No. 1310094).

32. The second basis on which the NSW Police Force submitted that the proceedings are vexatious is the content of emails Mr El Kassir sent to employees of the NSW Police Force and to their solicitors. In those emails, which are dated between 9 August 2017 and 19 August 2017, Mr El Kassir refers to employees at the Recruitment Branch of the NSW Police Force as “a bunch of dogs”, “a bunch of scum bags”, “fucking dogs”, and a ‘fucking bunch of arseholes”. He also refers to the solicitors for NSW Police as “a bunch of imbeciles”.

33. Mr El Kassir also threatens the NSW Police Force employees and the solicitors in these emails. Three examples are set out below:

I have been patient with those fucking low life bunch of dogs since 2004. Tell them to wait and see when I have enough money where the fuck I will be dragging them to.

The NSW Supreme Court and I will get an order that they employ me whether the fuck they like it or not.

Tell them to lick my fucking balls because I’m going to be the first person in their fucked up history that is going to force his way into the job whether they like it or not.

34. NSW Police Force submits that these emails demonstrate that Mr El Kassir’s complaint is vexatious and that is an added ground for refusing to give leave for the complaint to proceed. In his defence, Mr El Kassir asks rhetorically whether he should be expected to be polite in view of the way the NSW Police Force has treated him. He says he has a reasonable excuse for using abusive language.

35. I am satisfied that Mr El Kassir’s history of complaints and the abusive language he has used when communicating by email, demonstrates that one of his motives in making this complaint is to harass and intimidate employees of the NSW Police Force. But, in my view, unless his complaint cannot succeed on its merits, this motive is not sufficient to justify refusing leave.

36. There is no excuse for Mr El Kassir communicating to anyone connected with these proceedings in an abusive or threatening way. He should stop doing so. Mr El Kassir should direct all communications to the Respondent in connection with these proceedings to its solicitors.

37. Having regard to all the circumstances, it is fair and just to grant leave for Mr El Kassir’s complaint to proceed.

Orders

1. Mr El Kassir’s application for a complaint of disability discrimination against the Commissioner of Police, NSW Police Force to proceed is granted.

2. Mr El Kassir must direct all communications with the Respondent in connection with these proceedings to the solicitors for the Respondent.

3. The matter is listed for a case conference on 8 November 2017 at 12.30 pm.

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

Registrar

Decision last updated: 31 October 2017