Hay v State of New South Wales (No 2)

[2007] NSWADT 21

CITATION:	Hay v State of New South Wales (No 2) [2007] NSWADT 21
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Wayne Hay RESPONDENT State of New South Wales (New South Wales Police Service) RESPONDENT State of New South Wales (New South Wales Police Service)
FILE NUMBER:	041085
HEARING DATES:	23, 24 and 25/10/2006
SUBMISSIONS CLOSED:	25 October 2006
DATE OF DECISION:	18 January 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
REPRESENTATION:	APPLICANT In person RESPONDENT E Brus of counsel instructed by Crown Solicitor's Office
ORDERS:	1. Complaint Items 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 15, 16, 17, 18 and 19, be dismissed.; 2. Complaint Items 1, 9, 13 and 14 be stood over for further consideration and determination by the Tribunal.; 3. Hearing dates for determination of complaint Items 1, 9, 13 and 14, be set at a Case Conference to be held at the Tribunal on 9 February 2007 at 10.00 am.

Background

1 This decision of the Tribunal relates to complaints of unlawful discrimination made by the applicant against New South Wales Police Service. The complaints were made by the applicant to the Anti-Discrimination Board (the Board) between 29 May 2002 and 14 February 2003. The complaints alleged that the Police Service unlawfully discriminated against the applicant on the ground of his disabilities and covered the period from May 1994 to the day he was forced to medically retire on 13 March 2003. The Board decided not to accept as part of the complaints, events that occurred outside the statutory six months time limit. Accordingly, the complaints that have been referred to this Tribunal relate to the period from 29 November 2001 to 14 February 2003.

2 It was not disputed that during the relevant period the applicant suffered from an injured back which was assessed for the purposes of a workers compensation claim as an 18% permanent impairment caused by a protrusion at L5 S1 in his back which caused pressure to a nerve. As a result of his injury the respondent placed the applicant on permanent restricted duties.

3 The applicant is now aged 39. He joined the Police Service on 17 June 1988. On 21 May 1994, when he was then aged 27, he injured his back in the process of arresting an armed robber.

4 In addition to his injury to his back, the applicant claims that from 13 December 2001 he was diagnosed as suffering from anxiety and depression.

5 As a result of his injuries, the applicant made claims for workers compensation from the respondent. In 1988 he was awarded a lump sum payment to compensate for his past and future economic loss arising from the impairment to his back. In 1999 he made a claim for workers compensation for the time lost and his loss of expenses since 1994. Some time in the year 2000 this claim was settled by negotiation for an amount that covered his past expenses but did not cover his future expenses nor did it cover payment for his time lost claims. In April 2001 the NSW Treasury Managed Fund, the Government body which funds workers compensation claims for the Police Service, declined the applicant’s time lost claims from 11 April 1999 to 27 January 2001 in relation to the back injury. That fund formed the view that the applicant was fit to resume normal duties. The applicant stated that he did not subsequently make an application to the Workers Compensation Commission arising out of the decline of his time lost claims.

6 At the hearing before the Tribunal the applicant was not legally represented. The applicant elected to present his complaints as a series of separate items which the Tribunal has taken to represent separate complaints which require a determination. There were in total 19 items of complaint which were presented to the Tribunal.

7 The evidence of the applicant comprised the applicant’s written statement; tabulated series of documents which support the written statement; a batch of 80 documents under cover of a document headed ‘List of documents Wayne Hay’. These documents were not received as an exhibit but were in part referred to by the applicant in his submissions to the Tribunal.

8 At the close of the evidence presented by the applicant, counsel for the respondent made an application under s 102 of the Anti-Discrimination Act 1977 (the Act), seeking an order from the Tribunal that each of the items of complaint be dismissed on the basis that the Tribunal is satisfied that each complaint is misconceived or is lacking in substance. At the time of the respondent’s application, no statements or other evidence had been presented to the Tribunal by the respondent and accordingly the Tribunal has had regard only to the evidence submitted by the applicant, except where in presenting his evidence to the Tribunal, the applicant referred to documents or statements in the documents filed on behalf of the respondent and where no objection had been taken to that reference by the respondent.

9 Submissions on behalf of the parties were made to the Tribunal for the purposes of the application for dismissal of complaints. In making her submissions in support of the application, counsel for the respondent did not seek to examine in depth the individual items of complaint. Her submissions related to the general proposition that the evidence of the applicant was in such general form that the Tribunal would not, in considering the applicant’s evidence at best, be in a position to be satisfied that the applicant had substantiated his complaints. In particular, counsel for the respondent submitted that the evidence of the applicant in relation to each of the items of complaint contained no evidence that would support a finding that a comparison of the circumstances related by the applicant established either on an actual basis or on a notional basis, that the applicant had suffered unfavourable treatment, as required by s 49B(1)(a) of the Act. In this regard the applicant stated in his submissions that in respect of each item of complaint he was relying on a claim of direct unlawful discrimination under that section of the Act. In addition the counsel for the respondent submitted that in relation to each of the items of complaint the evidence did not justify the Tribunal in finding that if it considered there was potential evidence of unfavourable treatment suffered by the applicant that such treatment was causally connected to the applicant’s disability so that within the meaning of s 49B(1)(a) of the Act, the Tribunal could find that the unfavourable treatment was ‘on the ground of’ the applicant’s disability.

10 Counsel for the respondent could claim some support for her submissions from the acknowledgment of the applicant in his submissions that he had not had regard to the requirements of s 49B(1)(a) of the Act and in particular that he did not give consideration to the need to establish, on a comparative basis, that he had suffered unfavourable treatment or that any unfavourable treatment he did suffer was causally connected to his disability. The applicant acknowledged that he had not read or considered the provisions of the s 49B(1)(a). Having regard to his lack of legal background or legal representation, the Tribunal considers that it is beholden to examine, on behalf of the applicant, whether in respect to each item of complaint the evidence that the applicant has submitted may potentially come within that section, notwithstanding the applicant’s failure to address the requirements of the section in order to establish his claims.

Consideration of dismissal of complaints – s 102

11 In considering the respondent’s application for the dismissal of the complaints at this stage in the proceedings, the Tribunal needs to examine whether the evidence and the material submitted by the applicant in relation to each item of complaint, has a realistic potential to be established. The applicant, having closed his case so far as his evidence is concerned, is not entitled in this application, to rely on any statement or evidence filed on behalf of the respondent. The Tribunal must consider only the evidence submitted by the applicant except for the references to the respondent’s evidence (supra paragraph 8.)

12 In considering the material submitted by the applicant, the Tribunal has come to the view that the evidence is capable of establishing unlawful discrimination in relation to four of the items of complaint. In relation to the remaining 15 items of complaint, the Tribunal is of the view that the material submitted by the applicant, considered in its best light, is not capable of establishing unlawful discrimination and the Tribunal will dismiss each of those 15 items of complaint.

Reasons for dismissal of complaints

13 The Tribunal will deal first with each of the items of complaint which are to be dismissed.

Item 2 (Claim of unfair treatment and inappropriate handling of complaints by Director Chris Beatson)

14 Mr Chris Beatson was appointed Director of the Police Assistance Line (PAL) on 4 June 2001. At that time the applicant had already been assigned to that unit as he had been selected as an officer classed as unfit for operational duty and in accordance with the policy of the Police Service, non-operational officers were assigned to PAL. PAL was located at Tuggerah and the assignment of the applicant to PAL required him and his family to move home from the Illawarra district where he was then located to the Tuggerah district. At PAL, the applicant was assigned to the Customer Assistance Unit (CAU). PAL was a telephone Call Centre which provided a single point of contact for 24 hour reporting and processing of crime and incidents. The CAU was a unit of PAL which dealt with telephone calls relating to complaints and compliments concerning police employees and police incidents. Another unit of PAL dealt with crime reporting by the public.

15 The applicant commenced his duties at the CAU in October 1999. On 4 July 2002 Director Beatson submitted a report to the Medical Discharge Co-ordinator for a determination of the applicant’s ability to continue to work in the New South Wales Police Service. Subsequently an application for medical discharge was submitted which led ultimately to the applicant’s medical discharge on 13 March 2003.

16 This claim relates to an alleged failure by Director Beatson to promptly investigate a complaint regarding discrimination by Director Beatson in failing to promptly deal with a complaint written by the applicant on 10 December 2001. A copy of that complaint letter was not made available to the Tribunal. The applicant had first complained to the NSW Ombudsman on 29 January 2002. The Ombudsman declined to investigate the complaint as he considered it was more appropriate to be dealt with as an internal management issue. Subsequently the matter was referred for investigation by the Chief Superintendent of Police, Mr Norm Hazzard. Mr Hazzard advised the applicant on 6 August 2002 that after investigating the background of the matter he was not able to assist the applicant. It was not clear to the Tribunal from the statement of the applicant and the material that he submitted what was the nature of his complaint. His evidence in relation to this item was too general. The evidence lacked specificity and the Tribunal is not satisfied that the material is capable of establishing that the applicant was subject to unlawful discrimination arising out of his allegation that the Police Service did not adequately investigate his complaint.

Item 3 (Non-provision of ergonomic chair)

Item 17 (Ergonomic furniture supplied to other Police Assistance Line staff but not myself)

17 It is appropriate that these two items be dealt with together. The complaint relates to a claim by the applicant that the Police Service did not appropriately deal with his request to be supplied with an ergonomic chair. As a result of a rehabilitation assessment of the needs of the applicant, a recommendation was made that, amongst other items, the applicant be supplied with an ergonomic chair to assist in the relief of his back pain. There is sufficient evidence in the material of the applicant to show that a positive response to this recommendation was made by the Police Service. The issue, about which the applicant complains, is that although the Police Service approved of an ergonomic chair being provided to the applicant, the Police Service left it to the applicant to make his own arrangements to acquire a chair that best suited his requirement. The applicant did not take action to identify and locate an appropriate chair. He complains that it was the Police Service responsibility to provide him with a chair and that it was unfavourable treatment to expect him to find the chair on his own.

18 As in the previous item, the Tribunal is not satisfied on the evidence of the applicant that it can be established to the Tribunal’s satisfaction that this claim is capable of being substantiated. There is a lack of specific detail of how other applicants for ergonomic chairs were dealt with by the Service. The Tribunal is not able to notionally determine that in the circumstances relating to the applicant that it was unfavourable treatment that he be required to locate a suitable chair.

Item 4 (Non-provision of structured rehabilitation program)

19 The applicant complains that at no time during the period of his injuries was he supplied with a structured rehabilitation program. He claims that in the circumstances the failure to provide such a program constituted direct discrimination. In his statement he refers to a report by the Police Medical Officer on 5 December 1997 which recommended such a program be provided and he also refers to a statement by Superintendent Bruce Newling, in 1998, that the Service did not have a budget to provide a rehabilitation program. The references to the Police Medical Officer and to Superintendent Newling occurred prior to the period covered by the complaints referred to the Tribunal. Within that period there is material before the Tribunal that indicates that the applicant was referred to an external rehabilitation provider who did make recommendations to the Police Service concerning rehabilitation support for the applicant.

20 As in the previous matters, the evidence of the applicant is too general and lacks detail, and is not such that the Tribunal could conceive that this item of complaint is capable of being substantiated.

Item 5 (Non-provision of suitable alternative duties)

Item 6 (Decline of my application to return to work full-time via flexible rostering)

21 Both these items of complaint suffer from the same lack of sufficient detailed evidence to enable the Tribunal to come to a conclusion other than the view that the applicant is not able from the evidence submitted to the Tribunal to satisfy the Tribunal that these claims can be substantiated.

22 Item 5 contains complaints of a general nature and the statement of the applicant does not enable the Tribunal to identify with any degree of assurance any specific act or course of conduct which would constitute unfavourable treatment of the applicant when compared to a person in the same or similar circumstances of the applicant who did not have the applicant’s disability.

23 The same situation applies to the general allegation in Item 6. The details in the statement of the applicant merges the allegation with that contained in Item 7 (the next item to be dealt with).

24 The general nature of the claims of the applicant demonstrate to the Tribunal that the applicant had an expectation that his medical condition required the Police Service to meet each and every one of his innumerable requests for special treatment. If the Police Service did not meet those requests or did not meet them in a manner that the applicant found appropriate, the applicant has made a complaint of unlawful discrimination.

25 Generally, the Tribunal, in relation to each of these claims of unlawful discrimination, has taken the view that unless his evidence is demonstrable in establishing that the responses to a request made by the applicant, was unreasonable in the circumstances, and, on a notional basis, was not likely to be the response by the Police Service in similar circumstances to another person who did not have the applicant’s disability, the applicant’s claim of unlawful discrimination has not been substantiated.

26 In relation to these two items, the Tribunal is not satisfied that the applicant can substantiate his claim of unlawful discrimination.

Item 7 (Decline of 12 hour shifts (flexible rostering))

27 In September 2001, the applicant made application, supported by a medical certificate, to perform 12 hour shifts. This would enable him to return to full working hours. He was then rostered on 4 shifts per week, 8 hours per day Monday to Thursday. He submitted that the 12 hour shifts were the only option which would enable him to return to full working hours.

28 The applicant stated that his controlling officer, Inspector Emms, devised a list of additional duties which would accommodate the applicant whilst he performed a 12 hour shift. The applicant advised Director Beatson that a 12 hour shift would enable him to return to full hours of duty.

29 Director Beatson advised the applicant that the list of duties devised by Inspector Emms was not designed for 12 hour shifts but to allow the applicant to have a variety in his duties that would allow him to become more mobile during his shift. He pointed out to the applicant that his position was attached to the CAU and that along with the Training Unit, there was currently on trial a combination of hours of shifts that would give employees three recurrent leave days off per month. Such a flexible arrangement was available to the applicant. Director Beatson further pointed out to the applicant that the 12 hour rotational shifts were only available for the positions of Sergeant, Team Leader and that there were no other 12 hour shifts in the Call Centre and consequently, 12 hour shifts were not available to the applicant. It would appear from the statement by Director Beatson that 12 hours shifts were not available to any other employee in the Call Centre other than a team leader. The applicant was not a team leader in the Call Centre.

30 The applicant persisted with his request for a 12 hour shift and finally on 21 November 2002 Director Beatson stated that there was currently no operational requirement to justify officers attached to CAU/Crimestoppers working a 12 hour shift.

31 The evidence of the applicant does not support his claim that the refusal to allow him to work 12 hour shifts was unreasonable or that it would not also apply to a similar request from other employees in the Call Centre. The Tribunal is satisfied that the applicant is not able to substantiate this claim of unlawful discrimination.

Items 8 (Discrimination/harassment by Inspector Sullivan)

32 The applicant complains that he was subjected to direct discrimination by Inspector Sullivan in two respects. The first complaint relates to an incident about which the applicant stated: ‘Inspector Sullivan appeared to have devised a strategy to demean me over the Christmas period.’ He stated that he was instructed that he would be rostered for 2 days over the Christmas period to take calls on the Police Assistance Line like the Call Centre staff. The applicant considered that as he had previously been a supervisor/trainer for that position he should have been appointed as supervisor during the 2 day period.

33 The second item of complaint against Inspector Sullivan is that Inspector Sullivan harassed the applicant with on-going requests for medical certificates. In December 2001, the applicant advised the Police Service that because of his anxiety and depression, he was unable to carry out the duties associated with his position at the CAU, because he found that servicing a number of the complaints made to the CAU, was stressful and added to his anxiety and depression. He stated that at least 70% of all the staff working in the Call Centre were not able to cope. There was approximately 100 staff attached to the Call Centre. He stated that there are only 7 or 8 of that staff who could adequately cope. He stated that those other staff who had difficulty in coping, were not required to produce medical certificates. The applicant stated that he advised management that he was not able to answer the telephone calls and he could in future only do restricted duties. He acknowledged that Inspector Sullivan, as a consequence, assigned duties to him consistent with his medical restriction. The applicant stated that he believed he could do the team leader role. This role was not available at the CAU. Inspector Sullivan arranged for a fresh list of duties, on a restricted basis, be provided for the applicant.

34 It is the view of the Tribunal that in the circumstances related by the applicant, Inspector Sullivan, as the responsible officer for the supervision of the applicant’s duties, responded to the changed medical needs of the applicant, in an appropriate manner. In relation to Inspector Sullivan’s requirements for the applicant to be rostered into the PAL operation over the 2 days of the Christmas period in 2001, was reasonable. These actions by Inspector Sullivan do not constitute unfavourable treatment of the applicant, in the circumstances.

Item 10 (Discrimination/harassment by Sergeant Duncan, Inspector Sullivan, Paul Reason and Chris Beatson)

35 In relation to Sergeant Duncan, the applicant complains that on 25 June 2002 Sergeant Duncan saw fit to ‘put me on paper’ over a trivial matter relating to the inappropriate use of the Customer Assistance Data Base. On 7 August 2002, the applicant complains that Sergeant Duncan subjected him to a verbal barrage of abuse. The applicant stated that Sergeant Duncan was not justified in subjecting him to any abuse as he had not acted incorrectly as alleged by Sergeant Duncan. The applicant also related a third incident when the applicant left his workstation, as was often his practice to position himself on the floor and carry out stretching exercises to relieve his back pain. The applicant stated on this occasion Sergeant Duncan loudly proclaimed, ‘Where’s Wayne Hay wandered off to now? He’s never at his desk.’

36 On the fourth incident on 17 October 2002, the applicant stated that Sergeant Duncan told the applicant that on occasions when the supervisor was not present at the CAU he expected the applicant to supervise the customer service representatives. Sergeant Duncan on this occasion also told the applicant that he was required to remain on his shift until 4.00pm each day although, the applicant stated he was given flexibility in his hours and was able to commence his shift between 6.00am and 9.30am with corresponding different finishing times. The applicant stated that up until June 2002 his relationship with Sergeant Duncan was friendly but Sergeant Duncan changed his attitude towards the applicant about that time. Sergeant Duncan was subsequently reassigned from the CAU in October 2002.

37 The Tribunal is unable from the evidence of the applicant to determine that the incidents alleging Sergeant Duncan’s abusive attitude towards the applicant were likely to constitute unfavourable treatment which in the circumstances Sergeant Duncan would not have directed at another constable who did not have the applicant’s disability. It is the view of the Tribunal that the evidence of the applicant is not sufficient to enable the Tribunal to find that the applicant has substantiated his complaint in this item.

38 Although the applicant in his heading to Item 10 referred to discrimination/harassment by Inspector Sullivan, Paul Reason and Chris Beatson, the Tribunal cannot discern any evidence provided by the applicant in his statements before the Tribunal which relate to or would support a complaint of discrimination/harassment by these three officers.

Item 11 (Chris Beatson appoints Crimestoppers position without advertisement)

39 The applicant complains that Director Beatson appointed as a Customer Service Representative, Jenny Lord, to a ‘supervisor’/training position for the introduction of the Crimestopper Units to PAL in October 2002. It was intended that the Crimestopper Unit be merged with CAU. He stated that the appointment of Ms Lord meant that she occupied a position superior to the applicant’s position and to the position of other persons working at the CAU. He stated that no request for expressions of interest were invited from other staff members in the Call Centre. The applicant complains that at the time he was told by Director Beatson that there were no other suitable duties in the Call Centre for him and yet a job was created for Ms Lord and the applicant was not invited to apply for that position.

40 In a letter dated 29 November 2002, Director Beatson, in a letter addressed to the Centre Manager at Tuggerah stated ‘As previously indicated to S/C Hay I am unaware of any officer who has gained a position as a sworn SOCO. S/C Hay is incorrect in his assumption that paperwork for the transfer of an officer on restricted duties from the Mounted Unit working at PAL would require my attention.’

41 Director Beatson in a letter dated 4 July 2002 to the Medical Discharge Co-ordinator stated ‘S/C Hay has now provided medical certificates stating that he is unable to carry out his duties.’ The letter outlines the applicant’s duties at CAU and relates the health issues that were then affecting the applicant’s work performance including a recent medical report from the applicant’s doctor stating ‘Unable/unfit to perform telephone duties due to anxiety depression.’ Director Beatson sets out the revised list of duties devised for the applicant and he states ‘these duties were introduced as a result of the officer’s restricted duties and do not constitute a productive day’s work. They are an attempt to provide the officer, whilst he is unable to perform telephone duties, with meaningful tasks. Unfortunately there is no other duty this officer could undertake within PAL.’ In his letter Director Beatson sets out the applicant’s sick leave records since 6 November 2000 together with his current medical certificate. Director Beatson concludes ‘I am submitting this report for a determination of the officer’s ability to continue to work in the NSW Police Force. I have also spoken with S/C Hay’s medical practitioner, Dr A Webster, concerning the officer’s current medical conditions. Dr Webster indicated S/C Hay’s anxiety and depression would not be resolved in the short to medium term and that his problems were of a long term nature. I have again spoken to the officer today, advising him that I have now submitted a report seeking a medical review of his services.’

42 Subsequently Director Beatson submitted a medical discharge form dated August 2002. On 13 March 2003, the applicant was medically discharged from the Police Service.

43 With this background it is not likely that Director Beatson would recommend any police officer serving in CAU to a position of supervisor/training in the Crimestoppers Unit. The applicant was aware, according to the letter from Director Beatson to the medical discharge co-ordinator that in July 2002, Director Beatson had commenced the process for the medical discharge of the applicant out of the Police Service. The applicant is also aware that in August 2002 that his formal application for medical discharge had been submitted by Director Beatson. It is not unreasonable in these circumstances that the applicant would not be considered for a supervisor/training position especially when he had been placed on restricted duties as a result of his revised medical condition.

44 The Tribunal determines that the applicant is not able to substantiate this claim of unlawful discrimination.

Item 12 (Scene of crime officer application declined by Chris Beatson)

45 This complaint relates to the applicant’s claim that on 22 October 2002 his application to be trained as a scene of crime officer was not forwarded through the channels to Crime Scene for normal processing or response, but it was declined by Director Beatson without reference to Crime Scene.

46 In his letter dated 29 November 2002 to the Centre Manager, Tuggerah, Director Beatson stated that S/C Hay did not understand Director Beatson’s advice of 25 October 2002 in relation to SOCO positions. He stated that for a sworn SOCO position the officer requires the sponsorship of the Local Area Command (LAC) to be trained. He pointed out that SC Hay had not alluded to any LAC that was prepared to sponsor his request for a sworn SOCO position and that as a result Director Beatson was unable to forward his request. The applicant does not dispute that he did not have LAC support.

47 This complaint is unable to be substantiated as it is clear that the applicant lacked the necessary qualifications for the position because of his lack of LAC support. In addition, in the view of the Tribunal, it was not unreasonable for the reasons expressed in relation to Item 11, that Director Beatson would not entertain a request for the applicant, given his restricted medical condition, and the process for his medical discharge, to be considered for a position of this nature. The Tribunal finds that the applicant is unable to substantiate this complaint.

Item 15 (Beatson/Director fails in role of Commander to supply support, assistance, guidance in desperate time of need)

48 This is an item of a general nature. As the Tribunal has jurisdiction to determine only such complaints as are identified and referred to it by the Board, the applicant was invited by the Tribunal to identify whether this item of complaint was included in his complaints that he made to the Board and which it had referred on to the Tribunal. The applicant was unable to assist the Tribunal in identifying the reference from the Board. The statement of the applicant in evidence before the Tribunal, is of such a general nature that without any additional support from the applicant, the Tribunal is not able either to identify it as an item that was referred by the Board or to consider whether the claim could be substantiated as one of unlawful discrimination.

49 The Tribunal determines that in the absence of identification of this item as one which the Board considered and referred to the Tribunal, that the Tribunal lacks jurisdiction to consider and determine the substantiation of this item.

Item 16 (Medical discharge reports submitted by Chris Beatson (inaccuracies/untruthfulness))

50 This complaint relates to the letter of Director Beatson to the Medical Discharge Co-ordinator dated 4 July 2002 and also to the medical discharge form submitted by Director Beatson in August 2002. These two documents were referred to in more detail in relation to Item 11.

51 The applicant complains that the letter of 4 July 2002 contains a number of inaccuracies and that the medical discharge form dated August 2002 was not signed by the applicant. He complains that when submitting the form to the Medical Discharge Co-ordinator, Director Beatson in an accompanying letter stated that the applicant was offered the opportunity to complete the form but declined. The applicant stated that this statement by Director Beatson is not correct and that he had never been shown any paperwork in relation to his medical discharge.

52 The applicant claims as a result of Director Beatson’s actions, his career was terminated leaving him with no income stream or superannuation and no job or retraining for future employment.

53 The applicant acknowledged before the Tribunal that he did not oppose his medical discharge. He stated that he did not receive any lump sum payment or pension as a result of his medical discharge. He subsequently acknowledged, in cross-examination, that he was paid a lump sum of $64,070.60 as a special risk benefit relating to his injury. The Tribunal was advised by counsel for the respondent, without objection from the applicant, that a medical discharge did not require the signature of the police officer although the form provides for it to be signed by the police officer.

54 The Tribunal is unable from the evidence submitted by the applicant, to determine the correctness of the applicant’s statements that Director Beatson’s letters contained inaccuracies. The applicant did not object to his medical discharge and accordingly his claim of suffering detriment as a consequence of his medical discharge, is not substantiated. There is no evidence that would allow the Tribunal to come to a conclusion that in comparison to other officers who submitted, or on whose behalf applications were submitted for medical discharge, would be treated differently to the manner in which the applicant was treated or that the consequences of his medical discharge by the non-receipt of payments by way of a lump sum of a pension or being left without a job or training for another job, was not the same for other officers who were medically discharged.

55 In the view of the Tribunal the evidence of the applicant is not capable of substantiating a claim of unlawful discrimination.

Item 18 (Decline to work shifts and receive penalty allowances)

56 The statement of the applicant in relation to this item is in most general terms. No specific instances of requests for specific shift changes during the period of the complaint that has been referred to the Tribunal by the Board, is contained in the statement. The applicant refers to medical reports from the Health and Workplace Services Unit of the Police Service in December 1999 and 2 August 2000. The earlier medical report does not refer specifically to shift work and the second medical report recommends that he be rostered for later starting shifts (e.g. 10.00am) to allow him time in the mornings before starting work to undertake his loosening up and stretching exercises. The applicant stated that he was allowed flexible starting times from 6.00am to 9.30am. His expectation was that he be given freedom to work within such flexible hours as from time to time suited him in order to obtain the maximum relief from pain from his injury and to perform the exercises recommended by the doctor such as swimming, walking and attending gym. Such flexibility in his shift work, was not conducive to the shift programs at CAU and he was not allowed to work within the flexibility that he wished.

57 The evidence of the applicant supporting this claim is of such a general nature that the Tribunal is not able to determine that the claim is capable of being substantiated. The applicant submitted no evidence that would enable the Tribunal to make a direct comparison as to how the management at PAL dealt with other officers who required the same or similar flexibility in shift work as the applicant expected. There is no evidence that would justify the Tribunal making a notional determination of the manner in which another officer in similar circumstances would be treated by the respondent.

Item 19 (Police Service management continuation to ignore recommendations from police medical officers, specialists, doctors and independent workplace assessors)

58 The Tribunal is unable to discern any evidence that was advanced by the applicant that directly related to this complaint. Again, it is in such general terms that without some specific reference by the applicant to material evidence to support this claim the Tribunal concludes that this item of complaint is not capable of being substantiated.

General

59 At this point the Tribunal has dealt with those items of complaint which the Tribunal considers are not capable of being substantiated and should be dismissed. There remain four items of complaint which in the view of the Tribunal, after considering the evidence submitted by the applicant, contain material which would not justify the dismissal of the claims as misconceived or lacking in substance. The Tribunal considers that it would not be appropriate, based on the applicant’s evidence, to hold that the complaints are not capable of being substantiated. It may be that after hearing the evidence of the respondent in relation to these complaints that the Tribunal will find that the complaints are not substantiated.

Reasons for maintaining four items of complaint

Item 1 (Decline and delaying of Special Sick Leave applications)

60 The applicant stated that where a police officer makes a Hurt On Duty (HOD) claim for time lost, the Police Service applies against the time lost claim, the officer’s outstanding sick leave and annual leave and any additional leave (e.g. working public holidays) and when those leave payments are exhausted the officer is entitled to make an application for Special Sick Leave. The application is lodged with the local police unit which sends the applications to the Police Service, Health Services Directorate.

61 The applicant stated that during the relevant period of these complaints, he sent between 40 and 60 applications for Special Sick Leave. These applications arose because during the relevant period, the applicant would not be able to work his four day per week shift, due to his injury and he would supply a medical certificate supporting his claim for Special Sick Leave.

62 The applicant alleges that although some of his applications were approved and paid, the majority were declined. He states that the decline of his applications related to the retention of the applications by Director Beatson who held back the applications pending a decision by the Government Insurance Office acting as the agent of the NSW Treasury Fund as to whether it would accept the applicant’s HOD claim. If the HOD claim was accepted by the insurer it would meet the time lost claim by way of workers compensation payment and so avoid the respondent having to pay the Special Sick Leave claim. The Government Insurance Office delayed making a decision on the applicant’s HOD claims but finally it rejected the claims and advised the applicant that he was considered fit to resume normal duties. The evidence of the applicant is not precise as to the timing of his HOD claim applications and the final decision by the Government Insurance Office declining the HOD claim. During the period that the HOD claim was being considered, the applicant continued to make applications for Special Sick Leave, the majority of which were declined.

63 The applicant stated that the reason for the decline of his applications was stated in a letter from the Health Service Directorate dated 16 April 2002 which stated ‘the application does not meet the criteria for the grant of such leave’. The applicant considered, although it is not clear to the Tribunal on what basis, the reason for him not meeting the criteria, was that his claim had not been promptly lodged. The applicant alleges that the failure to promptly lodge the claim was not of the applicant’s fault but was caused by Director Beatson not forwarding his claims promptly to the Health Services Directorate whilst Director Beatson sought advice from the Government Insurance Office concerning acceptance of the applicant’s HOD claim.

64 The applicant relies for his view that his claim for Special Sick Leave did not meet the criteria, on the Police Service Special Sick Leave Guidelines and Procedures document which he exhibited to the Tribunal. Those Guidelines state that Special Sick Leave should only be granted where specified criteria are met. One criterion is ‘the officer is awaiting the outcome of a claim for HOD benefits where the claim has been promptly lodged and the officer is clearly unfit for any duty.’

65 The evidence of the applicant, in the absence of a response from the evidence of the respondent, would, in the view of the Tribunal, support a finding by the Tribunal that a claim of unlawful discrimination was substantiated. Such a finding would require the Tribunal to make a notional assessment that in the same or similar circumstances to an officer making a claim for Special Sick Leave that his local command would not delay the submission of his claims to the Health Services Directorate and thereby render ineligible the application for sick leave as failing to meet the criteria under the guidelines issued by the respondent. The rejection of a large proportion of the applicant’s claims for Special Sick Leave during the relevant period of this inquiry caused obvious detriment to the applicant as he was required to receive remuneration benefit through the application of outstanding sick leave, annual leave and special leave or when those leave entitlements were exhausted, he did not receive any remuneration.

66 The Tribunal considers that this item of complaint is capable of being substantiated.

Item 9 (Secondary employment declined by Chris Beatson)

67 The applicant stated that on three occasions whilst he was employed at PAL before Director Beatson took command of that unit, he had his secondary employment applications approved. He stated that Director Beatson chose to decline his subsequent applications stating that restricted duties personnel were unable to perform secondary employment.

68 The applicant exhibited before the Tribunal a circular issued by the Police Association of NSW on 21 November 2000 dealing with secondary employment. The circular referred to a notice issued under the hand of Dr E Chadbourne, Executive Director, Human Resource Services which advised commanders and managers that secondary employment applications lodged by staff members while on sick leave should not be approved. The Association circular went on to say that Dr Chadbourne has confirmed that ‘there is no blanket ban on the approving or continuation of secondary employment approvals’ provided that approval is sought in accordance with the current secondary employment policy and that sufficient medical information is provided which confirms that the activities sought to be undertaken within the scope of the secondary employment are not detrimental to the member’s medical condition.’

69 The applicant wished to continue with a business that he and his wife established which related to an advisory service for investment in real estate. The applicant and his wife operated this business from their home and the applicant stated that he was able to attend to the business in his off duty time and without aggravating his back injury.

70 The applicant stated that he was advised by Director Beatson that his applications were rejected as the relevant police department to whom the applications were sent considered that for an officer on sick leave to be granted secondary employment ‘compelling medical evidence’ demonstrating that the employment was beneficial to the officer must be provided. In support of his applications the applicant provided medical reports from his general practitioner, Dr Andrew Webster, who had been managing the applicant’s condition over a long period. Initially, the medical certificates merely stated that the doctor considered that the secondary employment sought by the applicant was for his benefit. These certificates were rejected as not being compelling. Finally a medical certificate from Dr Webster dated 16 November 2001 was provided. In that certificate Dr Webster lists the benefits described by the applicant that would flow from his second employment and the doctor concludes ‘in my opinion I believe his secondary employment is beneficial for the reasons listed and believe he is fit to continue this employment.’ This certificate was also rejected as insufficient to establish compelling medical evidence of the benefits of the applicant’s secondary employment.

71 In the view of the Tribunal the evidence of the applicant is sufficient, in the absence of evidence from the respondent, to substantiate a complaint of unlawful discrimination.

Item 13 (Non-provision of education and training)

Item 14 (Beatson/Director ostracises me from other staff members)

72 The Tribunal has considered these two items together as they contain not dissimilar allegations of unlawful discrimination.

73 Item 13 relates to an occasion in December 2002 when the applicant states that all staff at PAL received training in Crimestoppers, a new role being taken over by the Call Centre and being undertaken by CAU. He stated that all staff except himself were trained over a two to three day period. He stated that as he was not included in the training, he would not have been eligible to apply for any positions which became available in the Crimestoppers unit.

74 Item 14 relates to a claim of unlawful discrimination on 29 October 2002 when the applicant alleges that he was the only member of the police staff not invited to a motel resort to attend a two day team leader workshop at the Forresters Resort, Forresters Beach. The applicant stated that he was the only police officer in the Call Centre who was not asked to attend and that most of the administration staff including computer technicians were included. The applicant stated that his exclusion was contrary to the Police Statement of Values by not providing him with ‘equal access to training and development.’

75 The statements of the applicant relating to these two items of complaint, in the absence of evidence from the respondent, are capable of substantiating the applicant’s complaint of unlawful discrimination. The Tribunal notes that the two items occurred subsequent to the actions of Director Beatson in July and August 2002 in instigating the medical discharge of the applicant. It may be relevant for the respondent to demonstrate that in view of the process for the medical discharge of the respondent, it was not appropriate for the applicant to be included in the training and workshop processes. This will be a matter for further consideration arising out of the evidence for the respondent.

Summary

76 For the reasons expressed in this decision, it is the view of the Tribunal that the complaints of the applicant that he has suffered unlawful discrimination in the circumstances of the items of complaint numbered 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 15, 16, 17, 18 and 19 are not capable of being substantiated and lack substance. The Tribunal accordingly directs that each of these items of complaint be dismissed.

77 In relation to the remaining items of complaint, namely, items 1, 9, 13 and 14, it is the view of the Tribunal that the evidence of the applicant does not justify the Tribunal at this stage in the proceedings, finding that those complaints are either misconceived or are lacking in substance. Accordingly it will be necessary for the hearing of those four items of complaint to be continued. The Tribunal will arrange through the Registry for a Case Conference to be held to appoint further dates for hearing those four items of complaint.

Orders

1. Complaint Items 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 15, 16, 17, 18 and 19, be dismissed.

2. Complaint Items 1, 9, 13 and 14 be stood over for further consideration and determination by the Tribunal.

3. Hearing dates for determination of complaint Items 1, 9, 13 and 14, be set at a Case Conference to be held at the Tribunal on 9 February 2007 at 10.00 am.