Hay v State of New South Wales (New South Wales Police Service) (No.3)

[2007] NSWADT 300

CITATION:

Hay v State of New South Wales (New South Wales Police Service) (No.3) [2007] NSWADT 300

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Wayne Hay

RESPONDENT
State of New South Wales (New South Wales Police Service) (No.3)

FILE NUMBER:

041085

HEARING DATES:

26 April 2007 and 27 April 2007

SUBMISSIONS CLOSED:

3 September 2007

 
DATE OF DECISION: 

20 December 2007

BEFORE:

Ireland G - Judicial Member; Antonios Z - Non Judicial Member; Schneeweiss J - Non Judicial Member

CATCHWORDS:

Disability Discrimination - In work

MATTER FOR DECISION:

Principal matter

LEGISLATION CITED:

Anti-Discrimination Act 1977

CASES CITED:

Hay v State of New South Wales (No. 2) [2007] NSWADT 21

REPRESENTATION:

APPLICANT
In person

RESPONDENT
E Brus, barrister

REASONS FOR DECISION


Background


1 In a decision delivered on 18 January 2007 (Hay v State of New South Wales (No. 2) [2007] NSWADT 21), the Tribunal upheld the application by the respondent under s 102 of the Anti-Discrimination Act 1977 (the Act), to dismiss, at the close of the case for the applicant, 15 of a total of 19 items of complaint under the Act made by the applicant against the respondent.
2 The background to the complaints of the applicant are set out in that decision. The Tribunal also decided that the remaining four items of complaint, based on the evidence submitted by the applicant, did not justify the dismissal of those complaints at that stage of the proceedings. The Tribunal directed that the hearing of those four complaints proceed and that evidence of the respondent be taken before a final decision be made on the question whether the applicant had substantiated any one or more of those four remaining claims.
3 The hearing for the purpose of determining the remaining evidence took place on 26 and 27 April 2007. Following written submissions from the parties, the Tribunal is now able to deliver its reasons for the dismissal of those four remaining complaints.
Reasons for dismissal of complaints


4 The item number of each complaint is the item number referred to in the original decision of the Tribunal.
Item 1 (Decline and delaying of special leave applications)


5 On the final two days of hearing, the respondent called evidence of Senior Executive Officers of the Police Service who had responsibility for processing, and in some cases determining, various applications made by the applicant arising out of his employment with the Police Service and about which he had complained. The evidence of the witnesses called by the respondent assisted in elucidating much more detail concerning those items of complaint than the evidence that was produced, in most general terms, by the applicant. As a result of the consideration of the more detailed information supplied to the Tribunal by the respondent’s witnesses, the Tribunal is now in a better position to understand and decide the outstanding items of complaint.
6 It is important to bear in mind that the Tribunal is limited in its consideration of the applicant’s complaint to the complaints that related to the period from 29 November 2001 to 14 February 2003. It was this period that was nominated by the Anti-Discrimination Board as the relevant period of the complaints for reference to the Tribunal for its determination.
7 In relation to this item, the applicant directed a considerable part of his evidence to an application for special sick leave which the applicant made to the respondent on 20 June 2001. The application was backdated to 5 May 2001. The application was prompted by advice he received on 2 May 2001 from Acting Commander D Evans of the Police Assistance Line (PAL) where the applicant was then working. On 2 May 2001, Acting Commander Evans advised the applicant that the GIO (the insurer administering the applicant’s claim for a hurt on duty claim (HOD)) had decided not to approve that claim and that as a result, his special sick leave no longer applied. The applicant had at that time been on special sick leave since 14 March 2001 ‘pending the outcome of his HOD claim.’ Acting Commander Evans advised the applicant that his special sick leave would now cease and that his options were to either take his available extended leave or commence sick leave without pay.
8 Notwithstanding that advice, the applicant made a fresh application for special sick leave backdated to 5 May 2001. The Director of PAL, Mr Chris Beatson, on 22 June 2001 sent a report to the Manager of the Health Services Department of the respondent in which he advised that he did not support the applicant’s applications for special sick leave following receipt of the advice from the GIO. The applicant submitted further applications for special sick leave on 4 July 2001 and 19 July 2001.
9 On 27 July 2001, the Director of the Health Services Division advised the Director of PAL that:

‘In view of the GIO’s decision to decline liability for further absences and certain expenses relating to the officer’s condition, I am unable to approve SSL from the date that the officer was advised of this decision – 2 May 2001.


Senior Constable Hay should be advised of this decision immediately.’



10 However, in that letter, the Director of Health Services did approve the grant of special sick leave from 25 March 2001 to 2 May 2001.
11 On 6 November 2001, the applicant applied for further special sick leave for short periods in September 2001 and October 2001. Another application by the applicant for special sick leave was made on 7 November 2001 for time lost by him on 1 November 2001 and 2 November 2001 plus for one day per week lost whilst he was on an eight hour shift. On 21 December 2001, the Director of Health Services Division advised Mr Beatson that the applications for special sick leave made by the applicant ‘does not meet the criteria for the grant of such leave and therefore special sick leave is not approved. The officer should also be advised to pursue his claim for time lost with the GIO … NB To avoid hardship to the officer in recovery of overpaid salary, special sick leave is approved up until the officer is notified of this decision.’ The applicant made further applications for special sick leave on 23 January 2002, 11 March 2002 and 15 May 2002. Each of these applications was refused on the basis that ‘his circumstances do not meet the criteria for the grant of special sick leave. SSL is only granted to officers who have fully satisfied the criteria specified in the guidelines. As the officer’s situation has not changed, I am unable to approve the SSL for this officer.’ The latter two applications were made not on the basis of the applicant’s previous claims, that is, relating to his back injury. These latter claims related to his absence from work due to anxiety and depression. Each of these applications was rejected on the basis that it did not meet the criteria for the grant of special sick leave.
12 As the period of the complaint commenced on 29 November 2001, the Tribunal is unable to consider or determine whether the circumstances relating to the claims for special sick leave made before that time constituted unlawful discrimination within s 49B(1)(a) of the Act.
13 A considerable amount of evidence was led by the applicant concerning these earlier applications and was directed to establishing that the reason he considered his applications were rejected, was the delay in the submission by Mr Beatson of his applications to the Health Services Division.
14 The evidence demonstrates that Mr Beatson withheld these earlier applications until the GIO had determined whether it would accept the applicant’s HOD claims. If these HOD claims were met by the GIO, the applications for special sick leave would be redundant. Mr Beatson explained that he considered that he was justified in withholding the applications for special sick leave pending determination by the GIO of the HOD claim. In the view of the Tribunal, the approach adopted by Mr Beatson was not strictly correct. It was the duty of Mr Beatson to forward the special sick leave application to the Health Services Division and allow that Division to determine whether, pending a decision by the GIO, the claim could be dealt with within the special sick leave guidelines. The failure by Mr Beatson to forward the application for special sick leave, in the view of the Tribunal, was not directed towards the applicant because of his disability but was a misapplication by Mr Beatson of his responsibility. In the view of the Tribunal it could not be held that Mr Beatson’s failure promptly to send the sick leave applications to the Health Services Division was causally connected to an act of unlawful discrimination directed at the applicant.
15 The Tribunal has felt it necessary to deal specifically with the particular allegations relating to Mr Beatson because of the extent of the evidence directed by the applicant towards this issue. In any event the Tribunal has no jurisdiction to make a determination concerning the applications made prior to 29 November 2001 and, accordingly, can make no finding concerning the allegations of unlawful discrimination arising out of those earlier applications.
16 In relation to the applications for special sick leave made by the applicant after 29 November 2001, the evidence does not demonstrate that, in relation to any of those applications, the respondent subjected the applicant to unlawful discrimination under the Act. The fact that the applications were not approved, on the ground that the applications did not meet the criteria specified in the guidelines of the Health Services Division, is not in itself sufficient to demonstrate that the applicant was discriminated against under s 49B(1)(a) of the Act. The guidelines state that the grant of a special sick leave application is a discretionary concession and is not an automatic entitlement. Consideration of an application for special sick leave must meet the stated guidelines. The most relevant guideline so far as the applicant’s applications are concerned is that quoted earlier, namely, that the officer must be awaiting the outcome of a claim for HOD benefits. In relation to each of the applications made within the relevant period of complaint, the evidence does not demonstrate that the applicant had an HOD claim pending. For this reason alone, the rejection of the applicant’s application was justified. The Tribunal can find no evidence that would support, in relation to these latter applications, that the respondent had subjected the applicant to unlawful discrimination in the manner in which it dealt with, and ultimately refused, his applications.
17 As a consequence, this item of complaint must be dismissed.
Item 9 (Secondary employment declined by Chris Beatson)


18 The background to this complaint is set out in paragraphs 67–70 of the original decision. The applicant submits that in dealing with his application for secondary employment, he was unlawfully discriminated against both directly and indirectly in breach of ss 49(B)(1)(a) and 49(B)(1)(b) of the Act. The applicant was unable to demonstrate the requirement or condition that is a necessary component of a claim within sub-section (b), that is a claim of indirect discrimination. The Tribunal has therefore concentrated on examining the applicant’s complaint as a complaint of direct discrimination under sub-section (a) of s 49(B)(1) of the Act.
19 The evidence of the applicant which, to a large extent, was confirmed by the evidence of the respondent’s witnesses, can be summarised by relating to the rejection of the applicant’s claim for secondary employment on the basis that he failed to produce ‘compelling medical evidence’ to support his application. The evidence of the respondent was that all officers who were on sick leave were refused approval to work at secondary employment for so long as they remained on sick leave unless they supplied ‘compelling medical evidence.’ The decision as to the approval or otherwise of an application for secondary employment was made by Mr Corkill, the then Director of Health Services.
20 The applicant claimed that he endeavoured to support his applications with supporting medical evidence from the medical practitioner with whom he regularly consulted concerning the condition of his back injury. Initially the medical practitioner, Dr Webster, supplied a perfunctory Workcover medical certificate stating that the secondary employment sought by the applicant was for his benefit. On 16 November 2001, the applicant supplied a more comprehensive certificate from Dr Webster in which Dr Webster set out a list of the benefits which Mr Hay had described to him would flow from his secondary employment and Dr Webster concluded ‘In my opinion I believe the secondary employment is beneficial for the reasons listed and I believe he is fit to continue this employment.’
21 Mr Corkill did not accept this medical report as demonstrating compelling medical reasons to grant the application.
22 The application for secondary employment was made on 1 August 2001. On 12 December 2001, the Manager of the Human Resources Administration Division of the respondent advised Mr Beatson that he concurred with Mr Corkill’s assessment that the applicant had not supplied compelling medical evidence to support his application and that the application had been declined. That letter further stated that if the applicant subsequently was found fit for full duties, an application may be approved locally.
23 The criteria for approving of an application for secondary employment by the respondent was far more stringent where the applicant was not on full duty. The applicant had been granted secondary employment for circumstances similar to the secondary employment that he sought approval for in August 2001, on 20 June 2000. At that time the applicant was working full duties on the eight hour default roster system. At the time of his application in August 2001, the applicant was on restricted duties working four days per week at shifts comprising 6.5 hours of duties. In the case of an applicant who was on restricted duties, the applicant had to demonstrate that there were extenuating circumstances that justified approval of his application and to support that there were extenuating circumstances, the applicant needed to supply compelling medical evidence to support his application.
24 On 31 December 2001, the applicant sought clarification of the term ‘compelling medical evidence’. In a letter dated 16 January 2002, the Acting Director of the office of the Human Resources Administration Division of the respondent advised ‘there is no formal definition of the term ‘compelling medical evidence.’ It was merely a turn of phrase used by the then Director, Human Resources Administration, to convey the message that only in extenuating circumstances would an application for secondary employment be considered whilst the applicant was on sick report:

‘The applicant needs to provide such medical evidence as he sees fit. The Director, Human Resources Administration considers that evidence and determines whether extenuating circumstances are evident in the case.’


25 On 23 January 2002, the applicant requested a review of the decision to disapprove his application of secondary employment. By letter dated 5 February 2002, the Acting Director of the Human Resources Administration Division advised Mr Beatson:
‘the secondary employment policy clearly states that ‘applications for secondary employment when an applicant is on sick leave will only be approved in extenuating circumstances. Extenuating circumstances would be such that the secondary employment is assessed by impartial medical evidence to directly benefit the officer’s medical condition and therefore directly contribute to the officer’s recovery.’ On the basis of the information provided, it is my view that Senior Constable Hay has not demonstrated that there are extenuating circumstances in his case. I have therefore determined that the decision to decline his application for secondary employment will stand.’


26 On 18 March 2002, the applicant made a further application for approval for his secondary employment. In this application, the applicant stated that as a result of work-related anxiety and depression, he had been seeking the assistance of a psychiatrist, Dr Canaris, in Sydney. The applicant stated that Dr Canaris had told the applicant that there were obvious benefits to him in being able to take up his secondary employment and that there were also benefits to the Police Service which would dramatically reduce some of the expenses of the Police Service. The applicant made a further application on 2 May 2002. This application was in support of his application made on 18 March 2002. In the later application, the applicant was seeking to have the refusal of his secondary employment reviewed. By letter dated 10 May 2002, Mr Beatson advised the Centre Manager at PAL ‘[the applicant] is well aware that the issues he raises have been dealt with previously. Accordingly, I do not intend to keep responding to these matters.’
27 The oral evidence of Mr Beatson confirmed that each applicant for secondary employment received at PAL is assessed in line with the Secondary Employment Policy and Guidelines. The applicant did not produce evidence which would demonstrate that in the case of his application for secondary employment consideration was given other than in accordance with that policy and guidelines. The surrounding evidence of the applicant’s applications and, in particular, the responses from the respondent, demonstrate to the Tribunal that in considering the applicant’s application for secondary employment, the respondent dealt with and considered the applications and supporting material no differently from the manner in which it would deal with applications for secondary employment by other applicants who were not on full duty. The Tribunal is unable to discern any circumstance in the evidence which would justify the Tribunal in holding that the manner in which the applicant’s applications were treated was different to or in any manner treated less favourably to the manner in which the Department would have dealt with similar applications by other applicants.
28 The fact that in the case of the applications made by the applicant, the respondent did not consider that the medical evidence the applicant supplied met its criteria for compelling medical evidence to demonstrate that there were extenuating circumstances applicable to his situation was, in the view of the applicant, an unfair and unjustified decision. There is no evidence to suggest that the decision was made, whether or not it was fair or justified other than as a bona fide attempt to consider the medical evidence in an objective manner to determine whether extenuating circumstances extended to the applicant and not in a causal sense, to reject the application because the applicant suffered from the disabilities arising out of his back injury or from his anxiety and depression.
29 In the view of the Tribunal, there is no evidence to support the contentions of the applicant that within the terms of s 49B(1)(a) or s 49B(1)(b) the respondent perpetrated an act of unlawful discrimination against the applicant in the manner in which it dealt with his applications for secondary employment in 2001 or 2002.
Item 13 (Non-provision of education and training)


30 In his evidence, Mr Beatson referred to the occasion on which the applicant was invited to undertake training. Mr Beatson stated that in February 2002 he offered the applicant training in the Crimestopper program but the applicant declined the offer as the training would not result in the applicant working 12 hour shifts. Mr Beatson stated that he received no further requests from the applicant for training in the Crimestopper programs. Mr Beatson further stated that during the period of the applicant’s employment at PAL, only 30% of the staff at the centre received training in the Crimestopper programs.

31 In his evidence, Mr Paul Reason, the Executive Officer of PAL, stated that the Team Leader Workshop referred to by the applicant was a training course for persons who were ‘team leaders.’ The applicant was not a team leader and therefore was not eligible to attend.
32 The applicant provided no evidence relating to any other workshop or training courses from which he was excluded because of his disability.
33 In the view of the Tribunal the evidence of the respondent demonstrates that the allegation of the applicant that he was unlawfully discriminated against in being refused training in the Crimestopper program, is not substantiated.
Item 14 Beatson/Director ostracises me from other staff members


34 This item relates to a claim that on 29 October 2002 he was the only member of the staff at PAL who was not invited to a motel resort to attend a two-day Team Leader Workshop at the Forresters Resort, Forresters Beach. No evidence was presented to the Tribunal by the respondent relating to this aspect of the applicant’s evidence.
35 By October 2002, an application had been submitted for the medical discharge of the applicant from employment with the respondent. In these circumstances the Tribunal is not satisfied that the applicant has substantiated that the exclusion of the applicant as a participant in the Team Leader Workshop was on the ground of the applicant’s disability. Mr Reason stated that the applicant was not a team leader and therefore was ineligible to attend the Workshop. In these circumstances the claim of unlawful discrimination by the applicant is not substantiated.
Summary


36 In each of the remaining four items of complaint of unlawful discrimination, the Tribunal finds that each claim has not been substantiated.
37 In his final submissions to the Tribunal, the applicant referred to his feeling of inadequacy in not being legally represented at the hearing and he stated ‘I strongly believed I had been grossly and unfairly mistreated, which led me to believe I was discriminated by the New South Wales Police in relation to my permanent disability which resulted from a workplace injury on 21 May 1994. Having been brought up and taught to stand up and fight for my rights, family and what I believe in, I feel I have no other alternative than to follow the matter through to the best of my ability.’ This statement by the applicant is an appropriate description of the nature of the case presented by the applicant to the Tribunal. The applicant has had little or no regard to the need to establish the circumstances which would justify the Tribunal in finding substantiation to a claim of unlawful discrimination under s 49B(1)(a) or (b). The fact that a person may be grossly or unfairly mistreated falls far short of establishing the elements necessary to prove unlawful discrimination under those sections of the Act. An applicant must demonstrate that the treatment about which he complains constitutes less favourable treatment when compared with the manner in which in the same or similar circumstances another person would be treated who did not have the disability of the applicant. It is necessary further for the applicant to show that if such less favourable treatment operated that the less favourable treatment occurred on the ground of the applicant’s disability. In these complaints, Mr Hay has failed to present evidence to establish these requirements. On a number of occasions the Tribunal drew these matters to the applicant’s attention.
38 Consistent with the applicant’s persistence with a continual barrage of applications and complaints to the respondent during his employment at PAL, before the Tribunal, the applicant persisted in presenting the evidence supporting his complaints in a manner which took no regard for the need for him to demonstrate that any less favourable treatment he received could be classed as discrimination within the provisions of the Act. The result is that the applicant has failed, despite remonstrations from the Tribunal, to relate his claims of unfair treatment to the elements necessary to establish that any unfair treatment came within the compass of the sections of the Act referred to.
39 In conclusion, the Tribunal finds that the applicant has failed to establish that the remaining four items of his complaints, namely items 1, 9, 13 and 14, have been substantiated. The Tribunal accordingly directs that each of those items be dismissed. The result is that the applicant has failed to establish any of the 19 items of complaint that he brought before the Tribunal.
Orders


1. That complaint Items 1, 9, 13 and 14 are not substantiated and each Item be dismissed.





I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.


REGISTRAR/ASSOCIATE