FROST and WA POLICE SERVICE
[2005] WASAT 150
•29 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: FROST and WA POLICE SERVICE [2005] WASAT 150
MEMBER: JUDGE ECKERT
MR R SCAIFE (SESSIONAL MEMBER)
MS K LANG (SESSIONAL MEMBER)
HEARD: 11 - 15 APRIL 2005
DELIVERED : 29 JUNE 2005
FILE NO/S: ET 28 of 2004
BETWEEN: DUNCAN FROST
Applicant
AND
WA POLICE SERVICE
Respondent
Catchwords:
Equal opportunity - Discrimination in work on the grounds of impairment Victimisation Legal professional privilege Inadvertent disclosure of legal advice
Legislation:
Equal Opportunity Act 1984 (WA), s 4, s 5, s 66(2), s 66A, s 66B, s 67, s 89, s 90(2), S 93(1)(b), s 161, s 163(2)
State Administrative Tribunal Act 2004 (WA), s 9, s 62
(Page 2)
Result:
Impairment discrimination allowed, victimisation complaint dismissed.
Category: B
Representation:
Counsel:
Applicant: Ms Michelle Ridley
Respondent: Mr Craig Bydder
Solicitors:
Applicant: WA Police Union of Workers
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Airflite Pty Ltd v Arun Goyal [2003] WASCA 45
Australian Iron & Steel Pty Ltd v Banovic (1989) EOC 92-271
Commissioner of Police v Ghockson (1996) EOC 92
Dowling v Bowie (1952) 86 CLR 136
Ghockson v Commissioner of Police (1996) EOC 92 798
Haines v Leves (1987) EOC 92-2192
Jamal v Secretary Department of Health (1988) EOC 92‑234
Key International Drilling Company Ltd v TNT Bulkships
Mann v Carnell (1999) 168 ALR 86
Regan v Kalgoorlie Taxi Car Owners Association Inc (1996) EOC 92‑844
Waters & Others v Public Transport Corporation (1991) EOC 92‑390
Case(s) also cited:
Nil
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 29 July 2003, Mr Duncan Frost ("the applicant") complained to the Equal Opportunity Commission that his employer, the Western Australia Police Service ("the respondent") discriminated against him on the grounds of his impairment (impairment complaint), in breach of s 66B(2) of the Equal Opportunity Act 1984 (WA) ("the Act") and further, that he was victimised (victimisation complaint), in breach of s 67 of the Act. The Commissioner for Equal Opportunity ("the Commissioner") investigated the complaints and unsuccessfully attempted conciliation.
The Commissioner referred the impairment complaint to the Equal Opportunity Tribunal ("the EOT") pursuant to s 93(1)(b) of the Act on 19 May 2004. On 14 April 2004 the Commissioner dismissed the victimisation complaint as misconceived, pursuant to s 89 of the Act. On 6 May 2004, the applicant gave the Commissioner written notice pursuant to s 90(2) of the Act requiring the Commissioner to refer his complaint to the EOT. Accordingly, the Commissioner referred the victimisation complaint to the EOT on 19 May 2004.
On 1 January 2005 the functions of the EOT were assumed by the State Administrative Tribunal ("the Tribunal") by virtue of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). The Tribunal, constituted by a panel of three, heard both complaints in its original jurisdiction from 11 April to 15 April 2005.
Ms Ridley made oral submissions and called the following witnesses on behalf of the applicant: Inspector Robert Mumme, Dr Kotai, Ms Theodora Volleman, Inspector John Hart, Mr Neil Clark and Superintendent David Parkinson.
Mr Bydder also made oral submissions and called Superintendent Michael Emmanuel and Ms Renae Hodgson to testify on behalf of the respondent.
Because of issues of credibility, the Tribunal required each witness to give sworn evidence.
The Tribunal also had before it:
1.complainant's bundle of documents;
(Page 4)
2.OIC Allowance from EBA;
3.respondent's bundle of documents;
4.extracts from Inspector Mumme's work diary;
5.Superintendent Emmanuel's work diary;
6.Equal Opportunity Commission reports on impairment and victimisation complaints dated 19 May 2004; and
7.various documents put into evidence during the course of the hearing.
The transcript of the hearing became available on 31 May 2005, on which date the Tribunal held a directions hearing and reserved its decision.
Summary
This decision concerned a police sergeant who complained that his employer had discriminated against him on the grounds of his post traumatic stress syndrome. After successfully completing a return to work programme and receiving a medical clearance to work full‑time, the applicant was not allowed to return to his substantive position of employment as officer in charge of a metropolitan station because of his impairment.
The Tribunal found a clear breach of s 66(2)(d) of the Act and granted this application but dismissed the applicant's victimisation complaint. The applicant did not prove on the balance of probabilities that he was subjected to the relevant detriment on the grounds of his impairment complaint within the terms of s 67 of the Act.
Background
During the period of his employment as a police sergeant, the applicant was recognised with a number of awards and held in high regard by at least some sections of the Police Service. In 2002, his substantive position of employment was officer in charge of Mundaring Police Station. In March 2002, he was diagnosed with post traumatic stress syndrome by his medical practitioner, Dr Kotai, and went on extended sick leave.
In January 2003, Dr Kotai certified that the applicant was fit to commence a graduated return to work program. He commenced working one day a week under the supervision of Inspector Mumme of
(Page 5)
East Metropolitan District Office ("District Office") and Ms Volleman of the Health and Welfare branch of the Police Service.
By June 2003 the applicant was successfully working four days a week. On 21 July 2003, Dr Kotai provided the applicant with a medical report certifying that he was fit to resume full‑time duties from 28 July 2003. On 22 July 2003, the applicant advised Ms Volleman and Inspector Mumme of this fact but did not return to his substantive position of employment for some period of time.
On 29 July 2003 the applicant lodged his impairment complaint with the Commissioner for Equal Opportunity. On 2 December 2003, he lodged his victimisation complaint. The complaints now come before the Tribunal for determination.
Preliminary issue - who is the correct respondent?
The respondent submits in its points of defence that the Commissioner for Police is the appropriate respondent.
Section 163(2) of the Act states:
"A reference in this Act to an employer shall be read and construed in relation to employment by an officer in the Police Force of Western Australia as a reference to the Commissioner of Police and anything determined or done with respect to … any other matter concerning employment, by an officer … in the … Police Force of Western Australia who is authorised to determine and do things in that respect shall be deemed to have been determined or done by the Commissioner of Police."
It is relevant to note at this point that s 161 of the Act provides:
"161. Vicarious liability
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent —
(a)an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the
(Page 6)
employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph."
The definition of "employment" under s 4(c) of the Act includes "work as a State employee". [And further a] "'State employee' includes a member of the Police Force of Western Australia".
In Ghockson v Commissioner of Police (1996) EOC 92 798, the EOT concluded as follows:
"Having regard to the responsibility for breaches of the Act vested in the Commissioner by s 163(2), that liability under the Act has no other sanction or consequence [s 154], that the Act is remedial and is designed to achieve socially beneficial objects and to the nature of the relief which may be granted by the Tribunal [s 127(b)], the Tribunal considers that it is appropriate that the present proceedings have been brought simply by naming the Respondent as the "Commissioner of Police", such that responsibility under the Act for breaches of it would lie in the Commissioner for the time being, as would the responsibility for compliance with procedural directions …"
We find that the proper respondent is the Commissioner of Police but do not dismiss the complaint on this technicality in view of the main objectives of the enabling Act. The respondent does not make such an application, in any event.
Impairment complaint
We considered the applicant's points of claim and the evidence, and adduced that the claim is as follows:
(Page 7)
1.the applicant suffered from an impairment within the definition of s 4(b) and (d) of the Act;
2.as of 28 July 2003, the applicant was fit to carry out the duties of his substantive position as officer in charge of Mundaring Police Station in a full‑time capacity;
3.in July 2003, Superintendent Emmanuel advised the applicant that he would not be returned to his substantive position effectively because of his impairment;
4.by failing to return the applicant to his substantive position, Superintendent Emmanuel treated the applicant less favourably than he would a person without such an impairment;
5.Superintendent Emmanuel unlawfully discriminated against the applicant on the ground of his impairment by subjecting him to detriment in breach of s 66B(2)(d) of the Act; and
6.the respondent is vicariously liable for the discriminatory conduct of Superintendent Emmanuel.
The respondent denies that it discriminated against the applicant. In summary, the respondent in its points of defence admits that the applicant progressed to full‑time work on 28 July 2003, but pleads that Superintendent Emmanuel wasn't aware of this fact until some time between 19 August and 3 September 2003.
The burden of proving discrimination on the part of the respondent lies on the applicant. The standard of proof is the balance of probabilities. If the respondent relies on an exception to the Act, the respondent must prove on the balance of probabilities that the exception applies (Dowling v Bowie (1952) 86 CLR 136).
What must the Tribunal decide?
The Tribunal must decide in essence:
1.did Superintendent Emmanuel subject the applicant to discrimination within the definition of s 66A of the Act?
2.if so, was the discrimination unlawful within s 66B?
3.if so, is the respondent vicariously liable for the discriminatory conduct of Superintendent Emmanuel, pursuant to s 161?
(Page 8)
Statutory provisions relating to impairment
Parliament legislated to provide protection from disability discrimination by an amendment to the Act assented to on 30 November 1988 and commenced on 20 January 1989.
The relevant sections of the Act are as follows:
"Division 1 — General
66A. Discrimination on ground of impairment
(1)For the purposes of this Act, a person (in this subsection referred to as the "discriminator") discriminates against another person (in this subsection referred to as the "aggrieved person") on the ground of impairment if,
on the ground of —(a)the impairment of the aggrieved person;
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person;
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
Division 2 — Discrimination in work
66B.Discrimination against applicants and employees
(Page 9)
(1)It is unlawful for an employer to discriminate against a person on the ground of the person's impairment —
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's impairment —
(a)in the terms or conditions of employment that the employer affords the employee;
(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;
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment."
By an amendment to s 4 of the Act "impairment" is defined as follows:
" … 'impairment' in relation to a person, means one or more of the following conditions –
(a)any defect or disturbance in the normal structure or functioning of a person's body;
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(Page 10)
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment —
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person …"
Section 5 provides:
"Acts done for two or more reasons
A reference in Part … IVA … to the doing of an act on the ground of [impairment] includes a reference to the doing of an act on the ground of 2 or more matters that include [impairment], whether or not the [impairment] is the dominant or substantial reason for the doing of the act."
Findings on the evidence
The applicant alleges, and the respondent does not dispute, that he suffered from a form of post traumatic stress syndrome. We are satisfied on the evidence that at all material times the applicant had an impairment within the meaning of the Act.
The applicant's return to work program
The applicant's general practitioner, Dr Kotai, declared him unfit for work in March 2002. Dr Kotai certified that he was well enough to commence a graduated return to work program in January 2003. His progress was rapid and by June the applicant was successfully working four days a week. The applicant testified that the goal was to return to his substantive position.[1]
[1] T 17
Inspector Mumme was responsible for assigning duties to the applicant and monitoring his ability to cope with increased responsibilities. Initially the applicant was given a variety of low stress duties including working on bravery awards and conducting audit reviews. By March, he was mentoring and training the relieving officer in charge of Kalamunda police station. The applicant remained in this role
(Page 11)
until July. In May he was also placed in charge of the Crime Prevention Unit, a high‑pressure role incorporating aboriginal police liaison, juvenile justice, community policing and other responsibilities. He stayed in this position until August 2003 and found it equivalent to, if not more challenging, than his original role at Mundaring.[2]
[2] T 20
Inspector Mumme testified that he observed the applicant very closely during his return to work program.[3] He audited Kalamunda Police Station and talked to the other staff there about the applicant's performance. He also consulted with the applicant's family and friends, and members of the indigenous community. In his view, the applicant was doing very well and handling difficult situations satisfactorily. He had no concerns whatsoever with the applicant's return to work as the officer in charge of Mundaring Police Station.[4]
[3] T 146, 147
[4] T 154
Ms Volleman was the applicant's caseworker at the Health and Welfare Unit of the Police Service. She testified that her role was to provide counselling to the applicant and to ensure that his medical condition was adequately treated. She liaised with the applicant's doctor and Inspector Mumme, to monitor the applicant's progress on his graduated return to work. Ms Volleman is a clinical psychologist; she is a public sector level 8, the level of a superintendent. She worked closely with the applicant and formed the view that it was not his day‑to‑day officer in charge responsibilities which had led to his medical condition. The applicant had previously been responsible for implementing strategic changes in the district and was viewed as a "change agent" [5] which had made him unpopular in some quarters of the Police Service. This was a huge project which he had achieved with great success, but the pressures had contributed to his stress condition:
"I actually think he was burnt out from just working very long hours, taking a lot of work home, and then a number of disappointments. People not always accepting the changes that he implemented or that he was responsible for implementing. And so he'd been under, I thought, considerable stress leading up to that time and I thought it was more like a burn‑out."[6]
[5] T 220
[6] T 219
Ms Volleman also assumed that the applicant would return to his substantive position of employment once he was certified fit for full‑time
(Page 12)
duties, "that's the position we're working towards in rehab; to get them back to their own position."[7] She testified that this is the usual aim when an officer is in rehabilitation. It was not possible for the applicant to work in his substantive position part time so he was assigned other duties in the district until he was cleared for full‑time duties.
[7] T 225
Ms Volleman testified that she had observed the applicant coping very well whilst under great pressure in his community policing role. He was open with her about his progress and she felt that they had a good working relationship. By May or June he was working four days a week and she knew that in the normal course of a graduated return to work programme it was likely that within two to four weeks he would be cleared for full‑time work.
Dr Kotai testified that he told the applicant in June that he was likely to be cleared fit for full‑time duties by late July. The applicant testified that he passed this information on to Ms Volleman and Inspector Mumme. Both testified that they were satisfied with the applicant's progress and had no concerns as to his ability to cope upon his imminent return to his substantive position in Mundaring.[8]
Did Superintendent Emmanuel know the applicant was returning to work full-time?
[8] T 154, 235
Superintendent Emmanuel became the head of East Metropolitan District in June 2003. Inspector Mumme was acting Superintendent in the District for the previous two weeks and conducted the handover with Superintendent Emmanuel. This process included introducing all of the district officers in charge to Superintendent Emmanuel, including the applicant, who was at the time acting officer in charge of the Crime Prevention Unit. Inspector Mumme testified that at this introductory meeting;
"I actually highlighted all the achievements that Sergeant Frost had achieved through the district; his awards he'd received, the recognition; his role in the ‑ ‑ I suppose the reorganisation of East Metropolitan District; his role in setting up new units, and so on and so on, and Duncan Frost had his say to the Superintendent. I actually prompted him on a few things that he forgot ‑ ‑
(Page 13)
Mm hm? ‑‑‑ ‑ ‑ and basically what I was trying to do was explain to Superintendent Emmanuel what this person could achieve and what he had achieved, and his valuable contribution to the district.
At the end of that meeting I had a discussion with Mr Emmanuel. He made a comment about Sergeant Frost's red face. His comment was, 'How could you put that man back at Mundaring? Did you see his red face?' and I made comments to Mr Emmanuel about, 'That is Duncan, normal'. I said, 'You can't form an opinion on a person who has a complexion like Duncan. That's ‑ ‑ that's how he normally looks'. And that was the end of that conversation."[9]
[9] T 155
In the following month, a number of further meetings took place between the applicant and Superintendent Emmanuel, including one where the applicant presented a PowerPoint presentation of his work in community policing.
Both Ms Volleman and Inspector Mumme testified that they briefed Superintendent Emmanuel on the applicant's situation, including his health, progress on his graduated return to work program and his return to his substantive position at Mundaring police station. Inspector Mumme testified that he ensured that Superintendent Emmanuel was fully informed of all details concerning the applicant's return to work, regularly providing progress reports.[10]
[10] T202
In early July 2003, Superintendent Emmanuel and the applicant met and discussed his return to work. It was unclear on the evidence whether this meeting took place on 2 July or 10 July, but the Tribunal finds that it was organised by the applicant, on Ms Volleman's advice, in order to inform his superintendent of his imminent return to his substantive position.
The applicant testified that he informed Superintendent Emmanuel at this meeting that he was likely to be cleared by his doctor for full- time duties within two weeks. The applicant testified that Superintendent Emmanuel asked him, "Are you sure you're ready to come back? … it's a stressful position". The applicant testified:
(Page 14)
"Superintendent Emmanuel told me that because I'd had this stress‑related condition, that I should look around and have a look at — and I interjected and said, 'No. Hang on. I have worked very, very hard over that year to get back to my substantive role. I had medical and district office support there and agreement'."
He left the meeting with the issue unresolved and:
"the distinct impression that [Superintendent Emmanuel] wasn't going to allow me to go back to my substantive role … he didn't want me in the district at all."[11]
[11] T22, 23
Superintendent Emmanuel testified that he was not informed at this meeting that the applicant would be imminently declared fit to resume full- time duties. He denied that the applicant had called the meeting to discuss his return to his substantive position, testifying:
"I don't remember that ever being the tenor of our discussions."[12]
[12] T 379
Superintendent Emmanuel testified that at this meeting he told the applicant that he was concerned that Mundaring Police Station had not had a permanent officer in charge since the applicant had commenced sick leave the previous year. He testified that he said:
"Unless you can tell me when you are coming back, I have to turn my mind to filling that police station."[13]
[13] T 380
Superintendent Emmanuel testified that the applicant was unable to tell him when he would be able to return to work. Superintendent Emmanuel testified that he said to the applicant:
"You know what it means to have a police station without a substantive OIC. And he said, 'Yes, I do'.
'It's not fair on the staff,' I said, and he said, 'Yes, I agree'."[14]
[14] T 380
Superintendent Emmanuel testified that the applicant was disappointed but reluctantly agreed that he would not return as officer in charge of Mundaring Police Station.
(Page 15)
The applicant denies that this occurred.
We prefer the applicant's testimony to that of Superintendent Emmanuel. The applicant was keenly looking forward to his return to full- time duties and we find that he made his imminent medical clearance known to Superintendent Emmanuel at this meeting, on 2 or 10 July, expecting that he would be returned to the officer in charge position.
It would be illogical for the applicant to agree not to return to this position, as suggested by Superintendent Emmanuel, in the context of his imminent medical clearance.
We find that at no stage did the applicant agree not to return to his substantive position. Superintendent Emmanuel alone decided not to return the applicant to his substantive position, knowing of his imminent medical clearance, based on his own judgment that the applicant was not medically fit to work in that position.
Meeting of 15 July 2003
Following that meeting in early July, the applicant sought advice from Ms Volleman. She testified:
"I think he came into the office and we had a discussion about it and he was very confused. You know, normally Sergeant Frost isn't very confused. He's normally quite clear …"[15]
[15] T 225-6
Ms Volleman testified that the applicant was very disappointed that Superintendent Emmanuel had indicated he would not be able to return to Mundaring.
Ms Volleman testified that she attempted to clarify the situation by arranging a meeting with Superintendent Emmanuel, which took place on 15 July 2003. Email messages between Ms Volleman, Inspector Mumme and Superintendent Emmanuel prior to this meeting satisfy the Tribunal that the clear purpose of this meeting was to discuss the applicant's imminent medical clearance for full- time duties and his return to his substantive position at Mundaring Police Station.[16]
[16] Respondent's bundle of documents pages 6-12
The applicant testified:
(Page 16)
"I attended a meeting in Mr Emmanuel's office with Ms Volleman. Ms Volleman started off by explaining to Mr Emmanuel what's happened, how the progress has gone, how and what we have been working back towards me being replaced into my substantive role. At the conclusion of that, I then advised Mr Emmanuel of my achievements whilst in the district, my capabilities, my skills, and the fact that, pending my doctor's visit some week after, I would be ‑ ‑ it was envisaged, pardon me, that I would be returning to my full- time operational duties on or about the 28th of July, and would be returning as OIC of the Mundaring Police Station. Mr Emmanuel looked at me, had a grin on his face, and said, 'Sergeant Frost, on behalf of three superintendents before me, I would like to thank you for all the work that you've performed, but due to your' - I can't remember if he said stress-related or illness – 'I do not believe ‑ ‑ I believe you are too much of a risk to me, and I do not believe you can perform the role of an OIC in a contemporary policing environment'."[17]
[17] T 23
Ms Volleman testified that she opened this meeting by stating that the purpose was to discuss whether the applicant would go back to Mundaring or not when cleared by his doctor:
"Mr Emmanuel said to me that he'd already had a meeting, a private meeting, with Duncan and they were both clear on him not going back to Mundaring; that he'd already advised him with the reasons that he implied I didn't need to know about. I then - - I was surprised about that because my discussion with Sergeant Frost was that he was confused. He certainly had the idea that he wasn't going back to Mundaring but he had no clear understanding of why that was and certainly couldn't convey to me why it was that he wasn't going back to Mundaring. So then I said ‑ ‑ well, I was a bit sort of surprised and sort of caught off guard and I said 'Well, did you get a copy of the email sent by Inspector Mumme? … In that, it clearly documents that he has been performing well, that he's been able to do all the tasks, that he's ready to resume his position as OIC at Mundaring … we rely on the … person supervising the person in the workplace to give us accurate information about how they're coping with the job' and then that in addition to the information from Duncan that he'd been discussing returning to full- duties with his
(Page 17)
doctor, and that he was likely to clear him at the next visit, I thought well, this is now the time to put something in place for his return to work.
Ms Ridley: Okay. So what you just said then about the doctor being ready to clear him ‑ ‑ ? --- Mm.
‑ ‑ fit for work, that was information that you gave to Superintendent Emmanuel at this meeting? Is that what you're saying? ‑‑‑ Well, even in my email, I said, 'as he's nearly there.'
… But certainly at some time in the interview I said 'Well, it could be as early as next week now that he'll be cleared' because he had an appointment with his doctor the next week …
I think at that point Mr Emmanuel said something about he didn't feel ‑ ‑ firstly, that he ‑ ‑ the gist of it was that he thought Duncan was too stressed to go back to Mundaring and secondly, he said he didn't know whether he would be able to cope with the demands of modern policing. I think that was his expression. And at that point, Sergeant Frost then talked about the achievements he'd made whilst he was at work as the OIC at Mundaring, the systems he had put in place … he felt that running the Mundaring Police Station, with all its systems already in place, was a piece of cake …
… but after Sergeant Frost had talked about the work that he'd done and the achievements, and I had, you know, mentioned just prior to that about this report from Inspector Mumme, he then said … Mr Emmanuel said something along the lines of, you know, 'On behalf of the previous district superintendents, I'd like to thank you … for all your efforts, the work that you've done, but I think it's time you moved on'. And then I think he made an offer to help him find a position outside the district and he said, 'I'm bringing this meeting to a close now' and then the meeting ended; sort of rather abruptly."[18]
[18] T 232
Ms Volleman testified that Superintendent Emmanuel refused to discuss with her his reasons and did not seek her opinion of whether the applicant was well enough to return to the officer in charge position.
(Page 18)
Superintendent Emmanuel testified that he was surprised at Ms Volleman's opening of the meeting because the applicant had already agreed not to return to his substantive position and the only issue was where else to send him. He terminated the meeting quickly and complained to Ms Volleman's director about her unprofessional conduct.
We prefer the evidence of the applicant, Ms Volleman and Inspector Mumme, which is generally corroborated by the email exhibits.
We were particularly impressed by the evidence of Ms Volleman. She testified clearly and demonstrated a particular attention to detail in all her answers. Ms Volleman's communication skills leave little room for confusion.
In contrast, we find that Superintendent Emmanuel tended to baffle his staff by failing to either consult them or communicate clearly. Ms Volleman and Inspector Mumme were both senior members of staff with the professional responsibility for overseeing the applicant's return to work, but Superintendent Emmanuel made very limited use of their roles. He made his own decision in the absence of any medical advice or proper consultation with Ms Volleman and Inspector Mumme, disregarding their opinions without reasonable explanation.
Ms Volleman testified that on 25 June 2003 Superintendent Emmanuel had telephoned her to discuss the applicant's status. She advised that his rehabilitation was going well but that she didn't have any indication at that time from Dr Kotai as to when he would be back at work. She testified:
"I certainly had the distinct impression that Mr Emmanuel didn't want Sergeant Frost to go back to Mundaring Police Station …
Ms Ridley: … In that discussion, that telephone discussion at the end of June ‑ ‑ ? ‑‑‑ Yes.
‑ ‑ did Superintendent Emmanuel give any reason to you why he didn't want to return Sergeant Frost to Mundaring? Because you indicated it was an impression ‑ ‑ ? ‑‑‑ He focused on his health and on his ‑ ‑ what he perceived as high stress levels in Sergeant Frost, but he said to me that there were other issues that he couldn't discuss with me … "[19]
(Page 19)
[19] T227
Ms Ridley for the applicant later questioned Ms Volleman further about this conversation:
"You said earlier in that discussion there was some mention by Superintendent Emmanuel that he didn't believe Sergeant Frost could cope? ‑‑‑ Mm. Yes.
Okay? ‑‑‑ And he gave me an example of a meeting. It was a community meeting that was held. I don't know what the purpose of it was, but there was apparently a youngish female who had done some presentation, or who attended the meeting and, I think, had done a presentation on something, and in that meeting I think Sergeant Frost was present and he said something to this person which Mr Emmanuel perceived as not to be positive and whether he challenged the speaker on the content of the talk, something along those lines, and that he was quite ‑ ‑ he felt that Sergeant Frost was very red‑faced and worked up about whatever the issue was – and they're my words 'worked up', but certainly he talked about him being red‑faced. And I said to him 'Well then, after that meeting' – you know, presumably the guest speaker would have gone – 'did you talk to Sergeant Frost about what you perceived as inappropriate comments at the meeting or his behaviour or the fact that he looked stressed?' and he said 'No, I didn't'."[20]
[20] T 232
We find that Superintendent Emmanuel placed undue weight on his own opinion of the health of the applicant based on visual perceptions of the applicant. Superintendent Emmanuel decided very soon after starting at East Metropolitan District that he would not return the applicant to his substantive position based on his judgment that the applicant would be unable to cope with the stress. He maintained that decision without any supporting medical advice, in the face of the contrary professional opinions of his senior staff and the demonstrated success of the applicant's graduated return to work program.
Applicant receives medical clearance to work full‑ time as of 28 July
On 21 July, Dr Kotai medically cleared the applicant to work full‑time from 28 July 2003. The Tribunal accepts the evidence of Inspector Mumme that the applicant advised him of his medical clearance
(Page 20)
at the District Office on 22 July, and that he in turn advised Superintendent Emmanuel of this fact on the same day.[21]
[21] T 157, 198
In contrast, Superintendent Emmanuel testified that Inspector Mumme did not brief him on the applicant's medical clearance and he was virtually operating in the dark in relation to the applicant's condition. He testified that Ms Volleman was the only one advising him and, "she was unable to provide me with any sort of – any accurate details as to the state of his one, illness or what his actual illness was, or two, how long it was likely for him to return to work …"[22] And later, "that would have been a guess, that he had a stress related disorder – but a guess only."[23]
[22] T 344, 346
[23] T 484
He testified that he was not aware at any of the meetings in July 2003 that the applicant was soon to be cleared for full‑time work. Superintendent Emmanuel's evidence was that he didn't know until as late as September 2003 that the applicant had been cleared to return to full‑time work as of 28 July. Superintendent Emmanuel testified that Inspector Mumme and Ms Volleman were not in a position to tell him when the applicant would be ready to return to work.
In cross‑examination, Superintendent Emmanuel testified that Inspector Mumme did give him "his personal view" on the applicant's progress, which he disregarded as he did not consider this to be an "official briefing":
"Ms Ridley: Did you have regular briefings from Inspector Mumme in relation to the return to work program Sergeant Frost was on? ‑‑‑ As I said in my evidence in‑chief, Sergeant ‑ ‑ Inspector Mumme gave me his personal view about Sergeant Frost's condition, but never gave me any official briefing ‑ ‑ medical briefings.
All right. Well, in June 2003 when you commenced, did you know how many days per week Sergeant Frost was working? ‑‑‑ I understood it to be 3 days a week.
Ms Ridley: All right. Well, did you become aware when it became 4 days per week? ‑‑‑ No.
(Page 21)
All right. Would the number of days per week that he was working cause you any belief as to the immanency of his return or not? ‑‑‑ Oh, look, nobody could make it clear to me that this man was due to come back to work imminently.
Well, Inspector ‑ ‑ ? ‑‑‑ Now, having said that, Mr ‑ ‑ Ms Volleman said to me the first time I asked her, 'It could be 1 week or it could be 9 months'. So if somebody then said to me at a later time, 'You know, he ‑ ‑ he could be a couple of weeks away', well, yeah, and he could be 9 months away. That was always my concern.
All right. Well, Inspector Mumme said that ‑ ‑ gave in evidence that he advised you in June in informal briefings in the office that the return was imminent, that it was weeks away? ‑‑‑ Well, with respect to Mr Mumme, he is not in a position to provide me with that advice officially.
All right. But did he advise you of that? ‑‑‑ See, my recollection of the conversations I had with Mr Mumme were his opinion about Sergeant Frost. I don't remember him specifically saying he's got some tap into a doctor who is saying to him he's about ready to come back.
No, but that advice might have been from Sergeant Frost, that he would be passing on? ‑‑‑ He may ‑ ‑ the ‑ ‑ the answer to the question is I don't recall."[24]
[24] T 369-70
We reject this evidence from Superintendent Emmanuel. We do not believe that Superintendent Emmanuel was making decisions about the applicant's future in an information vacuum. As District Superintendent it was his responsibility to ensure that he was advised of all pertinent facts. On his evidence, he completely failed in this responsibility. However, we find that he was fully apprised of all relevant facts concerning the applicant's return to work and his evidence to the contrary is not credible.
We prefer the evidence of the applicant, Ms Volleman and Inspector Mumme where it is in conflict with Superintendent Emmanuel's evidence. The great weight of evidence leads us to conclude that Superintendent Emmanuel was well informed by Ms Volleman and Inspector Mumme of the applicant's diagnosis and progress in his return to work program. The applicant also met with Superintendent Emmanuel
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to discuss his imminent return to full‑time employment in early July, advising him of Dr Kotai's expected clearance in July. It is very apparent to us that Superintendent Emmanuel deliberately ignored the abundance of information and the informed opinions of his senior staff as it suited him.
Mundaring Police Station without a permanent officer in charge
Superintendent Emmanuel testified that there were problems at Mundaring caused by the applicant's absence from the officer in charge position. He felt that the applicant would be unable to cope back in that "explosive environment" position after so long on leave:
"Eckert J: … You said in your evidence yesterday that when you arrived, it was explosive at Mundaring and there were problems there. It was an explosive situation? ‑‑‑ No, ma'am. That was a general description of a police station, to be officer‑in‑charge of a metropolitan police station.
Okay. How was the situation at Mundaring when you arrived at Midland? I thought you did say that there were really serious problems there because it had been without anyone for 18 months? ‑‑‑ The situation was ‑ ‑ and I met with the station staff there, and the OIC, and ‑ ‑ in keeping with most stations, the briefing is "We haven't got enough people" et cetera and so forth, "It'd be good to have the OIC of the police station here. We haven't had an OIC for a long time" et cetera, et cetera.
Yes? ‑‑‑ Plus the fact that having somebody relieve in the capacity of OIC is a person down, you know, 24 hours a day.
Yes? ‑‑‑ So those sorts of issues. And it's my knowledge and understanding that when you have that sort of problem, the absence of a designated leader for long periods of time, there are almost always problems."[25]
[25] T485, 346
We find this evidence to be so general as to have almost no evidentiary weight.
In contrast, Superintendent Emmanuel's predecessor, Superintendent Parkinson, testified that the staff at Mundaring liked the three-month rotation of acting officers in charge in the applicant's absence and that this was good experience for the officers. He personally placed
(Page 23)
high performers in the acting OIC position to ensure that the applicant's excellent work didn't go backwards in his absence. He spoke very highly of the applicant's past achievements in the position. We find that Superintendent Parkinson was a truthful and open witness who provided an accurate description of the true situation at Mundaring Police Station.
Superintendent Emmanuel's diary
Superintendent Emmanuel's work diary is a blend of contemporaneous notes, daily diary notes made at the end of each day and lengthy annotations regarding the applicant made on 2 September 2003, after the applicant had complained both internally and externally of discrimination by the respondent.
To the extent that the diary is supplemented by these later annotations, we give this evidence no weight and we find those additions to be self‑serving statements, designed to provide a legal justification for Superintendent Emmanuel's treatment of the applicant. The notes made contemporaneously provide a better indication of the true motivations behind Superintendent Emmanuel's actions. For example, Superintendent Emmanuel was cross‑examined on his diary notes of 15 July 2003:
"Ms Ridley: Now, you agree that those were contemporaneous notes? ‑‑‑ Yes.
Okay. And if ‑ ‑ firstly, if you just look at the time, the meeting commenced at 9.30 [am], according to your diary? ‑‑‑ Yes.
… All right. Okay. If you look, you've got like dot points, with the dashes. Can you read out the second dash that you've written there? ‑‑‑
'Dora inquired as to why he would not return to Mundaring.'
Ms Ridley: And the next dot point states? ‑‑‑
'I advised her and Duncan that I have already told both her and him that for his health sake I am not prepared to return him to Mundaring.'
Okay. Now, those are your contemporaneous notes? ‑‑‑ Yeah.
(Page 24)
And there's no indication there at all, is there, that a reason you gave was because of staffing problems at Mundaring? ‑‑‑ No, not there. No."[26]
[26] T 406
We find that Superintendent Emmanuel decided soon after he took up his position at East Metropolitan District that the applicant was not well enough to return to his substantive position. He did not change his decision in the face of the contrary medical and other professional opinions of those working with the applicant. He may have been influenced in his decision by other factors, such as Constable Nathania Guest's complaints (dealt with below) and concern that Mundaring Police Station had been without a substantive officer in charge for a lengthy period. However, Superintendent Emmanuel's overwhelming, oft repeated reason for his refusal to return the applicant to work in his substantive position was his belief that he could not cope with the stress because of his health.
Application of the principles
It is not necessary for the applicant's impairment to be the only or even the dominant or substantial ground for the relevant act for the unlawful discrimination to be proved – it is enough if it is one of the grounds: Section 5 the Act; Commissioner of Police v Ghockson (1996) EOC 92‑798.
The law does not require an intention to discriminate: Ghockson [supra]. The act which amounts to discrimination must be deliberate; that is, the characteristic of the applicant said to be the ground on which the discriminatory act is performed: Airflite Pty Ltdv Arun Goyal [2003] WASCA 45; Jamal v Secretary Department of Health and Anor (1988) EOC 92‑234 at 77, 196 per Kirby P.
It is well established that for a finding of unlawful discrimination to be made out it is necessary to establish a causal connection between the act complained of and the less favourable treatment but it is not necessary to establish an intention to harm nor to discriminate: Ghockson [supra]; Waters v Public Transport Corporation (1991) EOC 92‑390; Australian Iron & Steel Pty Ltd v Banovic(1989) EOC 92‑271.
The expression "less favourably" is given its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found proved in
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the particular case: Ghockson [supra]; Haines v Leves(1987) EOC 92‑2192 at 76, 842 per Kirby P.
Conclusion on impairment complaint
We find on consideration of all the evidence that Superintendent Emmanuel clearly discriminated against the applicant on the ground of his impairment by treating him less favourably than in the same circumstances or in circumstances that are not materially different he would treat a person without such an impairment. We are satisfied on the balance of probabilities that Superintendent Emmanuel unlawfully discriminated against the applicant on the ground of his impairment by subjecting him to detriment in breach of s 66B(2)(d) of the Act. We also find that the respondent is vicariously liable pursuant to s 161 of the Act. We therefore answer all of the questions posed in paragraph 24 in the affirmative.
Detriment to the applicant
The applicant has been subjected to clear detriment, being the denial of his right to return to his substantive position upon being medically cleared fit for full‑time employment. As a consequence, the applicant suffered damage to his career, reputation and severely reduced opportunities for promotion, loss of officer in charge allowances and an exacerbation of his stress condition. He resumed taking medication and described his health as going backwards, particularly after his substantive position was advertised on Superintendent Emmanuel's instructions in August 2003.
Following his meeting with Superintendent Emmanuel on 13 August 2003, the applicant decided to accept a temporary secondment to Belmont Police Station under Inspector Hart while his internal and external complaints against Superintendent Emmanuel were pending. He had been at Belmont for only a week when a colleague told him that his substantive position at Mundaring had been advertised.
Superintendent Emmanuel testified that he authorised the advertisement. The applicant had not been consulted and had no advance warning about the advertisement of his position. This news caused the applicant understandable distress, and he immediately decided to take annual leave to avoid a further deterioration of his stress condition. The loss of this annual leave, from the last week of August to
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3 November 2003[27], is compensable, as is the hurt and humiliation that he endured.
[27] T 33
Assistant Commissioner Atherton advised the applicant in September that his position had been advertised in error and that he was legally entitled to return to his substantive position at Mundaring. On 3 November 2003, the applicant finally returned to his substantive position. However, he testified that he soon found the position untenable.[28]
[28] T 30, 32
We find that this was reasonable in the circumstances. Superintendent Emmanuel remained in control of the applicant. At no stage did Superintendent Emmanuel attempt to demonstrate to the applicant that he resiled from his previous attitude that he wouldn't cope back in his substantive position. Neither did he offer the applicant any support upon his return, nor apologise for improperly advertising his substantive position. To the contrary, Superintendent Emmanuel requested the applicant's second in charge at Mundaring police station to report to him about the applicant. Superintendent Emmanuel sent undermining notes to Mundaring police station to the effect, "Tell your sergeant don't bother me with these things".[29]
[29] T 29
Following a conciliation conference at the Equal Opportunity Commission, Inspector Moore was directed to act as an intermediary between the applicant and Superintendent Emmanuel, to minimise their contact. The applicant testified that Inspector Moore was then sent to Cambodia and no other person was appointed to this role. Superintendent Emmanuel, as head of the district, denied the applicant the benefit of an intermediary by failing to specifically appoint a successor to this role.
The applicant testified that he was left out of the district officer in charge briefings. It is clear to us that Superintendent Emmanuel maintained his discriminatory stance and actively hindered the applicant's return to work.
The detrimental effect on the applicant's stress condition was predictable. He was taking more medication to reduce his anxiety. Dr Kotai testified that the applicant was suffering stress at work and also at home. The applicant testified that his wife complained that he was displaying signs of nervous stress such as pacing up and down at home.
(Page 27)
He suffered insomnia, more panic attacks, difficulty with concentration and generally exhibited evidence of an exacerbation of his condition.
There was an interaction with Superintendent Emmanuel on 10 November 2003 which the Tribunal accepts greatly unnerved the applicant. He decided that he could no longer work with Superintendent Emmanuel. He applied for alternative positions and in February 2004 was appointed the Internal Investigations Unit Co‑ordinator to Southeast Metropolitan District, out of the jurisdiction of Superintendent Emmanuel. Subsequently, this full‑time employment position was withdrawn and the applicant was placed on the redeployee list. He was then seconded to the Counter Terrorist Co‑ordination Unit and then told that this position was no longer available either. He has now been offered a position at East Perth Lockup, which is a more limited position than the officer in charge position at Mundaring.
We find that the applicant did not voluntarily relinquish his substantive position. The respondent's discriminatory conduct directly led to this outcome. The applicant's reputation, career satisfaction and advancement has been significantly adversely affected. We accept the evidence of Superintendent Parkinson that the applicant now has a pretty limited chance of promotion. His health and enjoyment of life have suffered considerably in the last two years. We find that this detriment was the natural consequence of Superintendent Emmanuel's discriminatory treatment of the applicant.
Victimisation complaint
We now turn to the victimisation complaint. The applicant contends that he was victimised by Superintendent Emmanuel by being subjected to detriment on the ground that the applicant had made or proposed to make a complaint under the Act.
Particulars of the victimisation as pleaded in the points of claim are:
1.inference by Superintendent Emmanuel of some sexual misconduct on the part of the (applicant) when no complaint had been received;
2.a direct confrontation and veiled threat from Superintendent Emmanuel to the (applicant) on 10 November 2003; and,
3.the inclusion of the (applicant) in an independent review of management practices in East Metropolitan District to attempt to
(Page 28)
justify the action taken by Superintendent Emmanuel in refusing to return the (applicant) to his substantive position as Officer in Charge of Mundaring Police Station.
The respondent denies that it has unlawfully victimised the applicant and maintains that the management review was not specifically targeted at the applicant and, furthermore, was instigated on 1 July 2003, prior to the applicant's impairment complaint.
The burden of proving victimisation lies on the applicant. The standard of proof is the balance of probabilities.
The respondent correctly submitted that s 5 of the Act does not apply and referred to Regan v Kalgoorlie Taxi Car Owners Association Inc (1996) EOC 92‑844 at 79 254 which states:
"The matter or conduct complained of has to be a dominant or substantial reason for doing the act and more than that there be an intention to cause detriment and that there be a causative link between the conduct and the detriment."
What must the Tribunal decide?
The Tribunal must decide in relation to each allegation of victimisation:
1.did Superintendent Emmanuel subject or threaten to subject the applicant to any detriment?
2.if so, was this conduct directed at the applicant because he had made or proposed to make a complaint under the Act?
3.if so, is the respondent vicariously liable for the actions of Superintendent Emmanuel?
Statutory provisions relating to victimisation
The Act states at Part V:
"Other unlawful acts
67. Victimisation
(1)It is unlawful for a person (in this section referred to as the "victimiser") to subject, or threaten to subject, another person (in this subsection referred to as the "person
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victimised") to any detriment on the ground that the person victimised —
(a)has made, or proposes to make, a complaint under this Act;
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act;
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act;
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act;
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II, IIAA, IIA, IIB, III, IV, IVA or IVB,
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
(3)Subject to subsection (2), the application or continued application of subsection (1) in a particular case shall not be affected by —
(a)the failure of the person victimised to do any proposed act or thing referred to in any of the paragraphs of subsection (1); or
(b)the withdrawal, failure to pursue, or determination of any complaint, proceeding or allegation under this Act."
(Page 30)
Findings on the victimisation evidence
1. Inference of sexual misconduct
We find that the meeting on 13 August 2003 took place as described by the applicant and Mr Clark, his Police Union representative. Certainly, Superintendent Emmanuel gave the applicant and Mr Clark the impression that Constable Guest had made some type of complaint against the applicant, although he denied that a complaint was in existence. However, it was never stated by Superintendent Emmanuel that there was any sexual misconduct and this was a presumption which Mr Clark and the applicant made in their understandable confusion during this meeting. The applicant has not proved on the balance of probabilities that there was any actual allegation or intended inference by Superintendent Emmanuel of sexual misconduct.
There certainly was a detriment suffered by the applicant as a result of this meeting with Superintendent Emmanuel, but again, we find that the applicant has failed to prove to the requisite standard that this detriment was intended, or that there was any link between Superintendent Emmanuel's alleged conduct and the applicant's impairment complaint, which had been lodged on 29 July 2003.
The applicant has not made out this aspect of his victimisation complaint.
2. Direct confrontation and veiled threat
The applicant testified that an interaction with Superintendent Emmanuel at District Office on 10 November 2003 was confrontational and threatening. This was denied by Superintendent Emmanuel, who described it as an unplanned, brief and pleasant encounter. The applicant had by this date experienced a number of unsettling or stressful interactions with Superintendent Emmanuel, and his stress disorder was exacerbated as a result of the impairment discrimination. We find that this may have altered his perception of the interaction on 10 November. In any event, neither the applicant nor the respondent called any of the witnesses to testify about the incident and we are unable to find to the requisite standard that the conduct took place as alleged by the applicant.
We find that the applicant suffered detriment by way of further stress and that he decided that he couldn't remain in his substantive position following this encounter with Superintendent Emmanuel. The applicant
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did not prove that this detriment was intended, or caused by any conduct of Superintendent Emmanuel.
The applicant has not made out this second aspect of the victimisation complaint.
3. The independent review of management practices
The bulk of the victimisation evidence focused on the claim that the respondent unlawfully victimised the applicant by instigating an independent review into management practices within the East Metropolitan Police District which was in effect a witch‑hunt designed by Superintendent Emmanuel to justify his removal of the applicant from his substantive position. The review incorporated an investigation with coercive powers into complaints by Constable Nathania Guest that the applicant discriminated against her when she was pregnant in 2001. As a result of this review and its ultimate report, the applicant alleges that his reputation has been damaged and he has suffered an exacerbation of his stress condition.
The evidence regarding the reasons for the management review is murky and marked by contradictions between the various witnesses.
Superintendent Parkinson and Inspector Mumme both testified that there were no outstanding equal opportunity issues in the district before Superintendent Emmanuel's arrival in June 2003.[30] They had no knowledge of any discrimination complaints against the applicant.
[30] T 149, 322, 521, 531
Superintendent Parkinson testified that under Police Service procedures he would be advised of any discrimination complaints in his district. Had he been aware of the Guest complaints he would have taken immediate action.
"Ms Lang: … what would the process be if a constable had a complaint, such as Constable Guest's complaint, and the person she was complaining about ‑ ‑ ? ‑‑‑ There's ‑ ‑
‑ ‑ was her officer‑in‑charge? ‑‑‑ There's a number of processes. We have what they call a blue line, where they can go straight to the Internal Investigations, where it's anonymous. They can go to another district superintendent. They can go to the union, which is an obvious choice to me.
(Page 32)
Mm hm? ‑‑‑ Straight to the union. There are a number of issues. To the ‑ ‑ to the superintendent. If they don't trust anyone in the district, they can go to another district. That is the way we have done our business for a very, very long time.
And I think you said that the Women's Advisory Network ‑ ‑? ‑‑‑ Yes.
‑ ‑ would have heard about it if there was ‑ ‑ ? ‑‑‑ Without doubt.
What, as a direct complaint to the representative? ‑‑‑ Yes. Noreen O'Rourke was very, very active and a very, very good representative in the East Metropolitan District. She took it very, very seriously, and I can guarantee that if there was an issue with anyone out there Noreen would know. And Noreen ‑ ‑ what I liked about her - was straight enough and honest enough to ‑ ‑ to come in and ‑ ‑ and see myself or anyone else, because she was given an open invitation to come and see me. When she went on leave, Kal Greenaway was given the opportunity at every OIC meeting, which we had once a month ‑ ‑ she was first on the agenda to address all the OICs and everyone else with any issues pertaining to equal opportunities, Women's Advisory Network. And those meetings were held in the ‑ ‑ in the Midland town hall once a month, and she was first cab off the rank.
Ms Lang: And when you spoke to her, she hadn't heard of any of these complaints at all? ‑‑‑ No.
And so with all of those separate available processes, if a constable had an equal opportunity complaint of this nature and they went through any of those processes, would ultimately you be advised? ‑‑‑ Yes."[31]
[31] T321
When he was advised in 2003 of the management review, Superintendent Parkinson spoke to Ms Renae Hodgson of the Equal Employment Opportunity Unit in Police Services, who told him she did not support the review and there was nothing for him to worry about, as any issues when he was at the district had been resolved.[32]
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[32] T 521-3, 315
The first time Superintendent Parkinson heard the details of the Guest allegations was at this hearing.[33]
[33] T 531
Ms Volleman also testified that she had spoken to Ms Hodgson about the review:
"Eckert J: …Did you get any sense of what this was all about? ‑‑‑ No but, I mean, I knew from discussions with Renae that ‑ ‑ Renae Hodgson ‑ ‑
Yes? ‑‑‑ ‑ ‑ the EEO person, I mean, I'd spoken both to her, to Monica Butler who's in the EEO unit, probably a couple of times each, I knew that there was some sort of review going on.
Yes? ‑‑‑ And my understanding from Monica, and I think Renae as well, was that they advised against it.
Again Sergeant Frost ‑ ‑ ? ‑‑‑ Going ahead with that review.
Eckert J: Oh? ‑‑‑ Going ahead with the review which wasn't for any ‑ ‑ it wasn't for ‑ ‑ it wasn't triggered by any particular incident but there are a number of people targeted. That's what Renae Hodgson said to me."[34]
[34] T 264
Inspector John Hart testified that he acted in Superintendent Parkinson's position in 2001 when Constable Nathania Guest was pregnant at Mundaring police station. No equal opportunity complaints against the applicant had been raised with him at the time. When Superintendent Emmanuel first raised the subject with him in August 2003, he thought, "it didn't smell good to me at all".[35]
[35] T 278
Inspector Hart testified that he then spoke to WAN district representative, Ms Noreen O'Rourke, who was on maternity leave. She denied bringing up the complaints and told him that Superintendent Emmanuel had come to her home to raise them with her. This confirmed for Inspector Hart that the applicant was being set up by Superintendent Emmanuel, and he called the applicant to warn him that there was an investigation and to not go to any meeting at Superintendent Emmanuel's office without representation.[36]
(Page 34)
[36] T 280
The applicant testified that the first indication he was given of Constable Guest's complaints was at a very confusing meeting with Superintendent Emmanuel on 13 August 2003. The applicant attended with a Police Union representative, Mr Clark. At this meeting it was implied by Superintendent Emmanuel that Constable Guest had made a complaint about him. When the applicant sought clarification, Superintendent Emmanuel denied that any complaint had been made. The applicant left the meeting bewildered.
Ms Renae Hodgson, the Equal Employment Opportunity Co‑ordinator in the Police Service's Human Resources branch, testified that in 2002 the WAN district representatives raised with her the Guest complaints, which she had in turn raised with Superintendent Parkinson. In response, Superintendent Parkinson told the applicant to attend an equal opportunity training seminar in or about August or September 2002, but he failed to attend.
The applicant testified that Superintendent Parkinson never requested that he attend an equal opportunity seminar in August or September 2002 and, in any event, the applicant was seriously unwell and on sick leave until January 2003. Superintendent Parkinson also testified to this effect.[37]
[37] T 523
Ms Hodgson testified that the Guest complaints remained unresolved. As a result, Ms Hodgson briefed Superintendent Emmanuel upon his appointment to the district in June 2003 and the management review was the ultimate outcome.
Neither Superintendent Emmanuel nor Ms Hodgson provided a reasonable explanation as to why the Guest complaints were investigated some two years after the fact. The applicant and Constable Guest hadn't worked together since 2001.
Ms Hodgson's testimony that the Guest complaints were investigated because they were recent or ongoing is unsupported by any evidence, and we rejected it.
"Ms Ridley: Okay. In 2002 what was the nature of the concerns that [Guest] was raising? ‑‑‑ Ms Hodgson: She raised concerns in relation to her pregnancy and her treatment while she was pregnant.
(Page 35)
Mm hm? ‑‑‑ Also in regards to her part-time agreement and the fact that that ‑ ‑ she hadn't received a response for an awful long time and then that she felt there was a lack of support about that in that she had to report every time she went to the toilet across the road when she was pregnant, that she wasn't allowed to use the police vehicle when she was pregnant. She basically felt she was treated differently because of her gender, her pregnancy, and her family responsibility.
All right. Okay. And ‑ ‑ and what was the detriment then? Did it cover the three key elements that you've referred to earlier? ‑‑‑Yes. Yes. The detriment to her, obviously, in having to report going to the toilet all the time was not something that other people had to report ‑ ‑
Mm hm? ‑‑‑ ‑ ‑ and she felt humiliated by that. Not being able to use the police vehicle obviously meant she couldn't attend jobs if she wanted to and so on.
Mm hm? ‑‑‑ The part-time agreement she had difficulty with. There was also, you know, comments such as her being called 'fat guts' so there was other, I guess, conversations around her appearance while pregnant.
All right. Did you inquire at that time when these things occurred? ‑‑‑ They were ongoing. From what I understand they had been ongoing from throughout 2001 to 2002 and 2003 there was concerns when she heard that Duncan Frost was coming back to work.
All right. Right. Well, for 2001 are you aware of the period of maternity leave taken by Constable Guest? ‑‑‑ No. I know she did take maternity leave. I wasn't actually in the agency until November 2001.
All right. So you're not sure when the pregnancy was? ‑‑‑ No.
Because I think the papers say that she announced it in December of 2000 ‑ ‑ ? ‑‑‑ Mm hm.
‑ ‑ which means she would have given birth ‑ ‑ sorry, this pregnancy where the complaints occurred would have been the first ‑ ‑ basically the 9 months of ‑ ‑ ? ‑‑‑ Is that her first child or her last child?
(Page 36)
I have no idea? ‑‑‑ She's had another one.
Ms Ridley: … I understand she has much older children, that she has teenage children. This was her only pregnancy at that time? ‑‑‑ I'm not sure.
No? Okay. So given that you know that the 12‑month limitation is there ‑ ‑ ? ‑‑‑ Mm hm.
‑ ‑ and given that the indication was it was ongoing, didn't you make inquiries as to when this ‑ ‑ when this alleged discrimination was occurring, because it would be relevant, wouldn't it, if it was 2 or 3 years old or 1 year old or was current at that particular time? ‑‑‑ Yes, the ‑ ‑ the conversations I had with her, she did talk about recent incidences.
Mm hm? ‑‑‑ Particularly throughout 2003 she talked about recent incidences and a lot of her conversations also were with Nicky Kane ‑ ‑
Mm hm? ‑‑‑ ‑ ‑ who was the person who handled the flexible work queries prior to my arrival.
And all of her complaints, on your evidence, were in relation to Sergeant Frost? ‑‑‑ Yes.
And those recent complaints weren't in relation to any other officer? ‑‑‑ From Nathania, no, not that I recall. They were against Sergeant Frost.
Well, I put to you, as I understand, as I say, her pregnancy was in the ‑ ‑ well, December 2000 I recall she announced it? ‑‑‑ Mm hm.
And so she gave birth some time during 2001. So any of those pregnancy‑related comments could only have occurred in that period of time, would you accept? ‑‑‑ With the fact? ... (indistinct) ... I would say yes.
That, and certainly from most of 2002 ‑ ‑ ? ‑‑‑ Mm hm.
‑ ‑ Sergeant Frost was on long‑term sick leave? ‑‑‑ There was the issue in relation to her return to work, though ‑ ‑
Yeah, that's ‑ ‑ that's in O3? ‑‑‑ ‑ ‑ and the family responsibility.
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Ms Ridley: When was the part-time issue? Are you aware that the part‑time was approved, and approved for her to return to Mundaring? ‑‑‑ Eventually, yes.
All right. And, in fact, that decision wasn't made at the level of Sergeant Frost, was it? ‑‑‑ I don't know.
You don't know? ‑‑‑ No.
All right. So you ‑ ‑ it's not your role to make those inquiries? You would pass that onto the superintendent to make those inquiries, would you? ‑‑‑ I would only pass it onto somebody if I saw that there was a real risk and it was ongoing ‑ ‑
Right? ‑‑‑ ‑ ‑ so at that point we started to raise the issues with Mr Parkinson in 2002."[38]
[38] T545-548
Ms Hodgson's evidence is riddled with inconsistencies and confusion about the timing of the complaints. She was unable to outline the circumstances of the complaint accurately and we accord little evidentiary weight to her testimony.
Superintendent Emmanuel testified that he relied very heavily on Ms Hodgson's advice.
Ms Hodgson advised Superintendent Emmanuel that he couldn't transfer the applicant out of the district without according him natural justice and conducting a proper investigation of the equal opportunity issues. On 1 July 2003, Assistant Commissioner Atherton approved the external management review at a meeting with Ms Hodgson and Superintendent Emmanuel.
Superintendent Emmanuel testified that he met with Constable Nathania Guest in person at her home and she was tearful at times in discussing her complaints against the applicant. He did not review Constable Guest's employment records at any stage after receiving her complaint. Neither did he cause the other staff at Mundaring Police Station to be interviewed in order to test the veracity of the Guest complaints.
Constable Guest's employment record was chequered and she had a number of documented complaints from her supervisors, including the applicant, regarding her performance and poor attitude.[39]
(Page 38)
[39] Applicant's book of documents page 63-64, 67-73
We find it extraordinary that basic investigations were not undertaken, particularly given the age of the Guest complaints. We conclude that Superintendent Emmanuel accepted the veracity of the uncorroborated Guest complaints without question as it suited his purposes in regards to the applicant.
Superintendent Emmanuel's testimony in regards to the review is unsatisfactory and contradictory:
"Ms Lang: Would you have categorised Nathania Guest's complaint as an official complaint? ‑‑‑ When it was brought to my attention, yes."[40]
[40] T478
Clearly this contradicts Mr Atherton's letter to the applicant dated 19 December 2003, the text of which was drafted by Superintendent Emmanuel (Exhibit 10):
"I have commissioned an investigation. It may well be that in the course of her investigations Ms McKnight has uncovered what might be issues of complaint in respect of HR practices. I have not been advised by her of any such complaints."[41]
[41] T502, Complainant' s book of documents page 24
It also contradicts Superintendent Emmanuel's own diary notes for the meeting of 13 August 2003 with the applicant and Mr Clark:
"… I informed him very clearly and carefully that:
1.There is no issue of complaint from Nathania Guest …"
The evidence of Superintendent Parkinson, Inspector Mumme, Inspector Hart, Ms Volleman and the applicant is clear and credible. All of these witnesses testified that they were not informed of the existence of any Guest complaints prior to the appointment to the district of Superintendent Emmanuel. We note from the evidence that these witnesses know the applicant in a professional capacity only with the exception of Inspector Mumme, who has now retired and engages in occasional social interaction with the applicant, although at the relevant time their relationship was professional only.
When in conflict, the evidence of these witnesses is greatly preferred to that of Ms Hodgson and Superintendent Emmanuel.
(Page 39)
We find that Superintendent Emmanuel was not straightforward in his evidence regarding the review, and was not straightforward in setting up the review. We conclude, after considering all the evidence, that Superintendent Emmanuel's primary motivation for commencing the independent management review was his desire to find a legitimate reason to move the applicant to another position of employment, because of his personal opinion that the applicant was unfit to return to his substantive position.
We are surprised that any investigation of uncorroborated complaints, which were outside the Act's limitation period, could have been the subject of so much of the respondent's resources. The fact that the applicant, as one of the people being investigated under cover of this management review, was in the process of returning to work after recovering from a serious stress disorder was not a factor that Ms Hodgson or Superintendent Emmanuel apparently weighed against any perceived benefits of the investigation.
It appears from the evidence before us that the applicant has been treated with gross insensitivity at all stages of this process, from the manner in which he learned that he was under investigation, to the failure of the respondent to accord him procedural fairness, to the review itself which is not for the Tribunal to judge, to the findings and unresolved outcomes. In the applicant's circumstances, the Tribunal finds it hard to imagine how the respondent could have handled the situation more ineptly.
Conclusion on victimisation complaint
Despite the above findings, this victimisation allegation is not proved to the requisite standard as the applicant has not proved that Superintendent Emmanuel's conduct was on the grounds of or pursuant to any actual or proposed complaint by the applicant under the Act. We find that Mr Atherton approved the management review on 1 July 2003. This predated the applicant's impairment complaint of 22 July 2003. There is no evidence before us that Superintendent Emmanuel was aware or believed that the applicant proposed to make a complaint under the Act at the time the review was approved. We find that the respondent's conduct although highly questionable and most inappropriate, does not constitute victimisation. The answer to question 1 in paragraph 102 [these reasons] is "yes", but the answer to question 2 is in the negative, and question 3 falls away and the claim of victimisation is not substantiated.
(Page 40)
Accordingly, the Tribunal dismisses the complaint made under s 67 of the Act.
Relief
We now come to the question of appropriate relief for the impairment discrimination. The points of claim state:
"The Applicant seeks by way of relief:
a)damages
b)an order that the Respondent immediately appoint the Applicant to an equivalent position as Officer in Charge in a District not under the control of Superintendent Emmanuel and which is agreed to by the Applicant;
c)an order that the Respondent amend the Western Australian Police Service policy on EEO issues to ensure all resolved issues and remain confidential; and
d)an order that the Respondent do take action of a management or disciplinary sanction against Superintendent Emmanuel as a result of his actions against the Applicant."
We seek full submissions from the parties on relief and costs. The matter will be listed to hear those submissions at 2.30 pm on 20 July 2005.
Interim orders
The Tribunal made two interim orders during the hearing.
Applicant's assertion of implied waiver of privilege over respondent's legal advice denied
At the commencement of the hearing it became apparent that the applicant's book of documents included a memorandum of legal advice from the respondent's legal services unit which would normally be protected by legal professional privilege. The applicant testified that this legal advice was sent to him in 2003, at the same time as he received a separately posted letter from the respondent advising him that he would be returned to his substantive position as officer in charge of Mundaring Police Station. He was surprised to receive the respondent's legal advice and there was no explanation attached. The memorandum
(Page 41)
was addressed to Superintendent Emmanuel and the applicant believed the respondent was very unwise to send it to him.
Legal counsel for the applicant argued that the respondent waived the privilege when the document was sent to the applicant. She submitted that the respondent must prove that the memorandum was sent to the applicant without authority in order to assert the existence of privilege over the document.
The respondent had no explanation for its legal advice being sent to the applicant and submitted that it had been sent inadvertently or otherwise without authorisation. We find that this is the most likely situation.
There was no reason for the respondent to send its legal advice to the applicant. It would be most unusual for a respondent to an equal opportunity complaint or in any other litigation to take this step. The other letter, which the applicant testified was simultaneously received from the respondent, apparently did not provide any explanation or context for the unusual provision of a confidential legal memorandum. Despite the request, the parties failed to produce the other letter to the Tribunal.
In December 2004 it became apparent to the respondent that the legal advice was in the possession of the applicant. At this point, the respondent immediately advised the applicant in writing that privilege was asserted and the document should be immediately returned. This request was refused.
The waiver of privilege may be express or implied. In the circumstances of this case we do not find that there was an express waiver of the privilege. The question therefore is whether there was any conduct which could be imputed as waiving the privilege attaching to the legal advice.
The question of whether or not there has been an implied waiver of privilege most often arises when there has been a limited disclosure of the contents of the privileged material and the question will turn upon whether, in all the circumstances, the particular conduct is inconsistent with the maintenance of the confidentiality the privilege is intended to protect.
Mann v Carnell(1999) 168 ALR 86 states the principles relating to waiver:
(Page 42)
"Legal professional privilege exists to protect the confidentiality of communications between lawyer and client, and it is the client who is entitled to relinquish that requirement, and the question of implied waiver arises here as to whether or not the particular conduct is inconsistent with the maintenance of that confidentiality …
What brings about a waiver by operation of law is the inconsistency which the court, when necessarily informed by considerations of fairness, perceive between the conduct of the client and maintenance of confidentiality."
It would clearly be inconsistent for the respondent to seek legal advice on its position and then to provide that confidential advice to the applicant in the course of ongoing litigation.
In this case, the privilege is held by the State and as the first law officer of the State the privilege resides in the Attorney‑General, who is the relevant client. There was no evidence that the Attorney‑General or his agent (in this case, the respondent) had waived the privilege attached to the document, either explicitly or implicitly. In fact, the conduct was entirely consistent with asserting privilege; immediately. The respondent became aware of the disclosure, the respondent sought to enforce privilege by the return or destruction of the document. The respondent clearly advised that privilege was not waived and that release of the document was not authorised. We find that the disclosure of the advice was inadvertent or otherwise without relevant authority. The Attorney General or his agent could not be imputed to have waived the privilege in these circumstances.
The respondent referred to the decision of Key International Drilling Company Ltd v TNT Bulkships at 284:
"As soon as the error was discovered by the solicitors for the third party it was drawn to the attention of the second defendant's solicitors. I do not consider that in these circumstances there has been any waiver of privilege. Furthermore, there is no basis upon which it could be argued that it would be not fair to allow the claim of privilege to be maintained."
Ms Ridley's submission that this extremely unusual disclosure of confidential legal advice must be presumed to be authorised, and that the privilege is therefore waived unless the respondent provides proof to the
(Page 43)
contrary, is rejected. Legal professional privilege protects the confidentiality of legal advice in the absence of any waiver. In this case, privilege was properly maintained, there was no waiver, either express or implied, as the respondent made abundantly clear in its subsequent correspondence.
The applicant's counsel should have suspected that the respondent did not intend to provide disclosure of its confidential legal advice to her client and at least made appropriate enquiries of the respondent without delay. In these circumstances, a reasonable lawyer would realise the error and return the privileged document to the other party immediately. Counsel is professionally and legally obliged to put aside her client's personal interests and return or destroy documents which are protected by privilege. She failed to do so, and further, acted without professional courtesy to the respondent's solicitors when they repeatedly asserted the existence of privilege over the document.
Mr Bydder referred us to an extract from "Lawyers professional responsibility in Australia and New Zealand" by GE Dal Pont at 546:
"Lawyers should not disclose or seek to adduce communications that are expressed to be 'without prejudice' or are otherwise privileged. This dictates that lawyers who receive a document, whether by post, by fax or electronically, sent to them by opposing solicitors by mistake, should avoid reading the document and immediately return to the sender. Attempts to argue in such circumstances that privilege has been waived have not often met with success, and it is also open to the court, upon an application for this purpose to disqualify a recipient who has read the document so sent by mistake. The reason for this is that it would be inconsistent with basic notions of justice an fairness for the opposing client to have the benefit of her or his lawyer's accurate perception of the advice given to the other side."
We consider it was extraordinary of counsel for the applicant to refuse to comply with the requests of the respondent's solicitors and to retain the privileged document. Legal practitioners have a professional duty to uphold the principle of legal professional privilege, which is of fundamental importance in the administration of justice.
We made an interim order in the course of the hearing that the document was clearly privileged and the document was therefore removed
(Page 44)
from the applicant's bundle of documents. Counsel for the applicant was ordered to destroy all copies immediately. We also immediately destroyed all copies of the document and did not in anyway take its contents into account for the purposes of the hearing or this decision.
Publication of confidential report prohibited
The second order concerned another issue of confidentiality. The applicant included in his book of documents at page 29 ‑ 47 an extract from the confidential "McKnight Report" which the respondent submitted should be the subject of a suppression order. The applicant did not object to this application. We accepted that the report was confidential and that publication of its contents would be contrary to the public interest. An interim order was made pursuant to s 62 of the SAT Act prohibiting publication or other reference to the McKnight Report.
Result
1.The Commissioner of Police is the correct respondent in this matter.
2.The impairment claim is allowed.
3.The victimisation claim is dismissed.
4.The contents of and details regarding the extract from the "McKnight Report" relating to the applicant (pages 29 – 49 of the complainant's book of documents) shall not be published in any form.
I certify that this and the preceding 154 paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE ECKERT, DEPUTY PRESIDENT
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