Laycock v Commissioner of Police, NSW Police

No judgment structure available for this case.

CITATION: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Christopher Laycock
RESPONDENT
Commissioner of Police, NSW Police

FILE NUMBER: 051106

HEARING DATES: 10, 11 & 12/04/2006

SUBMISSIONS CLOSED: 05/08/2006

DATE OF DECISION:
09/06/2006

BEFORE: Rees N - Judicial Member; Antonios Z - Non Judicial Member; Mooney L - Non Judicial Member

CATCHWORDS: Disability Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977
Disability Discrimination Act 1992 (Cth)
Occupational Health and Safety Act 2000
Police Act 1990
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED: Cosma v Qantas Airways Limited [2002] FCA 640
Cosma v Qantas Airways Ltd (2002) 124 FCR 504
Jarratt v Commissioner of Police (2005) 79 ALJR 1581; [2005] HCA 50
Purvis v NSW (2003) 217 CLR 92
X v Commonwealth (1999) 200 CLR 177
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

REPRESENTATION:
APPLICANT
In person
RESPONDENT
K Eastman, barrister

ORDERS: 1.Complaints dismissed; 2.The respondent must file and serve written submissions in support of any application which he proposes to make for costs within 14 days of the date of these orders; 3.The applicant must file and serve any written submissions he proposes to make in opposition to an application for costs by the respondent within 14 days of receiving the respondent’s written submissions

Introduction

1 In this case the applicant, Mr Christopher Laycock, has claimed that his former employer, the Commissioner of Police, unlawfully discriminated against him on the ground of his disability at various times between September 2002 and March 2004. The applicant worked as a police officer with the NSW Police from 1990 until 2004. The parties are no longer in an employment relationship. The applicant has not been a police officer since 12 November 2004 when he was removed from the NSW Police by reason of an order made by the Commissioner of Police pursuant to s 181D(1) of the Police Act 1990.

2 The case was heard by the Tribunal in Sydney on 10, 11 and 12 April 2006. At the conclusion of the evidence the parties were directed to file written submissions. The final submissions were filed on 8 May 2006. The applicant presented his own case whilst the respondent was represented counsel, Ms Eastman.

3 Despite the rather voluminous body of evidence which was placed before the Tribunal, and the lengthy written submissions filed both parties commenting upon that evidence, there were very few factual disputes. It was not in dispute that the applicant suffered from a back injury, which is a disability within the meaning of the Act, and that as a result of that disability he was unable to undertake some activities. What was in dispute was the action which the respondent was required by law to take in response to the applicant’s disability. The case turns upon a determination of the extent of the obligations imposed upon an employer by s 49D(2)(a)(b) and (d) of the Anti-Discrimination Act 1977 (the Act) and upon the proper characterisation of various actions taken by the respondent in response to the applicant’s disability.

The complaints to the President of the ADB

4 This case concerns two complaints made to the President of the Anti-Discrimination Board (the ADB) by the applicant against the Commissioner of Police when the parties were in the relationship of employer and employee. The applicant’s first complaint was lodged with the President of the ADB on 18 March 2003 (the ‘first complaint’). This complaint centres upon the applicant’s application for promotion to the position of Investigations Manager at the Lake Illawarra Local Area Command (LAC).

5 The applicant made the following claims in his first complaint to the President of the ADB which were not in dispute:

b) the applicant sustained a back injury at work in 1992 and since that time he has had two operations on his back

c) on 5 April 2001 the applicant applied for a number of vacant positions of Investigations Manager which were at the level of Senior Sergeant

d) by letter dated 24 August 2001 the applicant was advised that he was the recommended officer for the position of Investigations Manager at the Lake Illawarra LAC

e) the applicant was appointed to the position of Investigations Manager at the Lake Illawarra LAC on 12 February 2002 on a temporary basis pursuant to s 66 of the Police Act

f) prior to his appointment to the position of Investigations Manager at the Lake Illawarra LAC the applicant was a Detective Sergeant at the Burwood LAC

g) the applicant performed duties at the Lake Illawarra LAC until late September 2002

h) on 19 September 2002 the applicant received a memorandum from his commanding officer at the Lake Illawarra LAC, Superintendent Hodsdon, in which the Superintendent informed the applicant that he could not support his promotion to the position of Investigations Manager because of a report prepared by a Police Medical Officer, Dr Tania Rogers, in which she stated that the applicant “is not fit for full operational duty, hence not currently fit for promotion to Investigations Manager”

i) shortly afterwards the applicant returned to the Burwood LAC as a Detective Sergeant but not to the actual position which he had occupied prior to his appointment to the Lake Illawarra LAC.

6 The applicant claimed that both the respondent’s “refusal to give effect to my promotion to Senior Sergeant” and his “failure to provide my original position and quality of work as Detective Sergeant on my return to Burwood LAC” constituted unlawful discrimination on the ground of disability in contravention of s 49D of the Act. The respondent has consistently denied both of these allegations.

7 The applicant’s second complaint was lodged with the President of the ADB on 5 March 2004 (the ‘second complaint’). This complaint centres upon the applicant’s duties at the Burwood LAC after his return from the Lake Illawarra LAC in September 2002. The substance of this complaint was as follows:

Anti-Discrimination Act 1977.

This Complaint is that from 19 September, 2002 to the present, I have not been provided with any opportunities to relieve, or act up in higher graded positions. Other Police Officers at Burwood Local Area Command who do not suffer from a disability have been provided with the opportunity to relieve in and act up in higher graded positions.

In addition, NSW Police continues to breach its agreement with me that I would relocate to my former position of Detective Sergeant Team Leader, Criminal Investigations in the event that my appointment to the Senior Sergeant’s position at Lake Illawarra LAC was not made permanent by refusing to permit me to carry out the duties of this position and refusing to hold me against a permanent Sergeant’s position at Burwood LAC.

The failure to provide me with the opportunity to relieve in and act up in higher graded positions on my return to Burwood LAC is unlawful discrimination in accordance with 49B of the Anti-Discrimination Act 1977, and is contrary to section 49D of that Act.

8 The respondent denied the allegations of unlawful behaviour in the second complaint. The two complaints were referred to this Tribunal for adjudication by the President of the ADB on 15 August 2005.

The allegations before the Tribunal

9 In compliance with directions from the Tribunal the parties filed Points of Claim and Points of Defence. In his Points of Claim the applicant elaborated on the claims made in his two complaints to the President of the ADB. In this document the applicant dealt with the two complaints separately. He identified the period of time covered by the first complaint as 18 September 2002 until 18 March 2003; the identified dates for the second complaint were 7 September 2003 until 7 March 2004. Those parts of the Points of Claim which referred to the first complaint contained five allegations of unlawful treatment during the identified period. They were: (1) denial of promotion and offer of lesser duties (Lake Illawarra), (2) [lack of] accommodation assistance (Lake Illawarra), (3) denial of transfer to substantive position and rank (Burwood), (4) work quality/demeaning duties (Burwood), and (5) [lack of] accommodation/assistance (Burwood).

10 In a subsequent document headed ‘Amendment to Points of Claim’ the applicant identified the particular provisions in the Anti-Discrimination Act which he claimed were breached by the respondent. The applicant claimed multiple contraventions of the Act in relation to each allegation of unlawful treatment. For example, in relation to the allegation characterised as ‘denial of promotion’ the application claimed that the respondent contravened s 49D(1)(c) and s 49D(2)(a), (b) and (d) of the Act.

11 Those parts of the Points of Claim which referred to the second complaint contained four allegations of unlawful treatment during the identified period. They were: (1) denial of higher duties ‘relieving’ (Burwood), (2) denial of transfer to substantive position and rank (Burwood), (3) work quality/demeaning duties (Burwood), (4) [lack of] accommodation (Burwood/Lake Illawarra. In the ‘Amendment to Points of Claim’ the applicant also identified the particular provisions in the Act which he claimed were breached by the respondent in the circumstances which fell within this second complaint. As with the first complaint, the applicant claimed multiple contraventions of the Act in relation to each allegation of unlawful treatment.

12 The applicant claimed monetary and non-monetary remedies in relation to both complaints. For each complaint he claimed the statutory limit of $40,000. He made claims for damages for economic loss and for non-economic loss, and for exemplary damages. The applicant also sought written and published apologies from the respondent.

13 The applicant’s Points of Claim could not be characterised as a pleading. As the respondent stated in his Points of Defence, the applicant’s Points of Claim “traverse material facts in issue, evidence, law and matters which are properly matters for submission”. Nevertheless, the Points of Claim provided the respondent with reasonable notice of the details of the claims made against him by the applicant. Any claims which fall outside of the Points of Claim have not been considered as it would clearly constitute a denial of procedural fairness to the respondent to do so.

14 In his Points of Defence the respondent admitted that the parties were in the relationship of employer and employee at all relevant times and that the applicant had a disability. The disability was described as “an injury to his back which impaired his ability to perform a range of physical activities”. It was not in dispute that the applicant injured his back at work in 1992 and that he had spinal surgery in October 1999 and again in November 2001. It was also not in dispute that this back injury was the subject of a workers’ compensation claim which was determined by the Compensation Court in October 2002. The Court decided that the applicant suffered from permanent impairment to various parts of his body and awarded him a lump sum of $71,750.

15 The respondent denied all of the applicant’s allegations that he had acted in breach of the Anti-Discrimination Act. The respondent characterised the applicant’s numerous claims in a way which we consider useful and propose to adopt. The characterisations were:

2. Denial of transfer to substantive position and rank

3. Detriment in respect of work allocation during the identified periods

4. Denial of higher duties during the second identified period

5. Failure to accommodate.

16 The respondent also sought to rely upon two defences or exceptions to liability in the Act. First, the respondent claimed that his actions in relation to what he had characterised as the applicant’s first allegation – the denial of promotion in September 2002 – fell within what is generally referred to as the ‘inherent requirements’ defence in s 49D(4) of the Act. Secondly, the respondent claimed that he was entitled to the benefit of what is generally referred to as the ‘statutory authority’ defence in s 54 of the Act in relation to all of the allegations made by the applicant. The respondent claimed that all of his relevant actions were performed pursuant to Part 6 of the Police Act and s 8 of the Occupational Health and Safety Act 2000. In view of the conclusions which we have reached about the applicant’s claims there is no need for us to consider the respondent’s reliance upon these defences or exceptions to liability.

The evidence

17 No useful purpose is served by a detailed exposition of the evidence of each witness, or by a lengthy description of each document which was tendered, because there were no disputes about the key events which gave rise to these complaints. Consequently, we will provide a brief outline of the evidence given by each witness and make reference only to the documentary evidence when it is directly relevant to our conclusions.

18 There were two witnesses for the applicant: the applicant himself and Inspector Neil Higgins. The applicant also sought to lead evidence from his doctor, Dr John Hehir, by telephone. Ms Eastman opposed this application. The application for Dr Hehir to give evidence by telephone was rejected because of unfairness to the respondent and because of our concerns about the relevance of this evidence. As noted, the respondent admitted that the applicant had a disability and there did not appear to be any dispute between the parties about the extent of that disability. Contrary to the Tribunal’s directions, the applicant had not filed a statement or report from Dr Hehir. Thus, the respondent did not have reasonable notice of any evidence that may be given by Dr Hehir. Also, Ms Eastman indicated that if Dr Hehir was to give oral evidence she wished to show him a large number of documents during cross-examination. Given the confidential nature of those documents it was not feasible to send copies to Dr Hehir by facsimile, or by some other means, prior to being cross-examined. The applicant chose not to apply for an adjournment to enable these difficulties with Dr Hehir’s proposed evidence to be met.

19 The applicant tendered his own statement which extended over 44 pages and contained 253 numbered paragraphs. There were 56 attachments to the statement which comprised hundreds of pages of documents. The applicant’s statement reveals that whilst he was a meticulous recorder of events concerning the matters which were the subjects of these complaints, he also demonstrated a tendency to conflate chronicling actual events with recording his own conclusions about what had happened and his own opinions about the reasons for the conduct of others. Those conclusions did not always withstand scrutiny and his opinions were not always supported by evidence.

20 As the events surrounding the applicant’s aborted promotion to the position of Investigations Manager at the Lake Illawarra LAC are at the core of these complaints, we should outline the applicant’s evidence about this matter as well as his accounts of his disability and his treatment by his commanding officers at both the Lake Illawarra and Burwood Local Area Commands.

21 The applicant stated that the back injury which he sustained at work in December 1992 became “progressively worse” over time culminating in a “bulged disc”. He became “paralysed and unable to walk without assistance”. In October 1999 he had spinal surgery described as “L5 S1 Discectomy”. He claimed that “[t]his injury left me with a permanent impairment of the lower back”. On 14 November 2001 he had further surgery “due to an extrusion of the L5 S1 disc that had compressed the S1 nerve root”. The applicant stated that the respondent was kept informed of the state of his injury and of the various medical interventions for which the respondent’s workers’ compensation insurer accepted liability. The applicant claimed that between October 1999 and November 2004 “all duties have been performed after first having submitted ‘WorkCover’ medical certificates certifying my suitability for work”. On 15 October 2002 he was awarded lump sum permanent impairment compensation for his injuries by the Compensation Court. The Court ordered lump sum compensation “in respect of one-third permanent impairment of the applicant’s back … in respect of 20% loss of use of the applicant’s left leg at or above the knee and … in respect of 25% loss of use of the applicant’s penis”.

22 In April 2001 the applicant applied for a number of vacant positions of Detective Senior Sergeant, Investigations Manager. At that time he was a Detective Sergeant and Team Leader at the Burwood LAC. On 24 August 2001 the applicant was advised by letter that he was the nominated officer for the position of Investigations Manager at the Lake Illawarra LAC. As appointments to positions of this nature are temporary in the first instance, the applicant signed an agreement pursuant to s 66 of the Police Act in which it was recorded that if his appointment did not become permanent “I will be placed into a position at my current substantive rank, at Burwood LAC”.

23 The applicant commenced duties in the temporary position of Detective Senior Sergeant, Investigations Manager at the Lake Illawarra LAC on 3 February 2002. In paragraph 30 of his statement the applicant stated that “I performed all duties and functions expected in the position of Investigations Manager, Detective Senior Sergeant” between 3 February and 8 April 2002 but then goes on to say that during this period “I was placed on restrictions not to engage in violent twisting and repetitive and heavy lifting by treating specialist Dr J Hehir”. At this time the applicant also attended physiotherapy twice a week during working hours.

24 In paragraph 31 of his statement the applicant states that “[o]n the 8th of April, 2002 I was medically examined and assessed by Dr J Hehir as being ‘fit for pre injury duties’ (Attachment 10)”. The document which is Attachment 10 to the applicant’s statement is in fact a copy of a memorandum from the applicant to various people including the Commander of Lake Illawarra LAC. A copy of a ‘WorkCover NSW Medical Certificate’ completed by Dr Hehir, dated 4 April 2002, is attached to that memorandum. In the memorandum the applicant referred to his examination by Dr Hehir on 4 April 2002 and stated that:

Attached is a current Workcover certificate which documents the need to maintain commitment to Physiotherapy and exercises and have this time excluded from normal duties (“Maintain physio and strengthening exercises for next 3 months. Travel time to and from physio and doctors”)

At this time I am attending physiotherapy twice per week, Tuesday and Thursday, in the Bankstown area.

25 This memorandum does not accurately record what Dr Hehir had written on the document headed ‘WorkCover NSW Medical Certificate’. Dr Hehir did not state the applicant was fit “to perform duties without restriction” or “fit for pre injury duties”. Dr Hehir ticked the box next to the entry on the medical certificate that reads: “The worker has reached maximum medical improvement and is fit for permanently modified duties from 4/4/02” (emphasis added). Under the heading - “The worker has the following capabilities for” - Dr Hehir wrote, “office type duties as per his job description”.

26 The applicant stated that between 8 April 2002 and 19 September 2002 he performed the “full inherent functions” of the position of Investigations Manager including arresting an offender after a violent struggle and taking control of forward command post in the field. On 12 September 2002 he was “placed on restricted duties and deemed non operational by virtue of a report from Police Medical Officer (PMO) Tania Rogers”. A copy of Dr Rogers’ report to Superintendent Hodsdon, the Commander of the Lake Illawarra LAC, was provided to the applicant at the time and it is Attachment 15 to his statement. It was not in dispute that the applicant was examined by Dr Rogers on 25 July 2002 at Superintendent Hodsdon’s request. Dr Rogers made it clear in her report that she had consulted the applicant’s treating doctor, Dr Hehir, and that her conclusions were based upon work limitations imposed by Dr Hehir. Dr Rogers wrote in her report dated 12 September 2002:

As far as I am aware the most current medical certification indicates that Sergeant Laycock has the following medical restrictions.

1 “No lifting or twisting more than 20 kg”

2 “Allowance for sitting and standing as needed”.

Sergeant Laycock has not been able to stand for long periods when in the field and requires a rest seat.

Dr Hehir told me that Sergeant Laycock is not fit to handle confrontations with offenders, hence I concluded from Dr Hehir that Sergeant Laycock is not currently able to safely perform all aspects of full operational policing duties as would be required in the field.

I regret to state that Sergeant Laycock’s current medical certification indicates that he is not fit for full operational duties, hence not currently fit for promotion to Investigations Manager.

As you are no doubt aware, standard operational restrictions are as follows:

Not to wear appointments

Not to wear uniform outside the workplace

Not to drive marked police vehicles

Not to handle prisoners or intoxicated persons

Not to work alone in public areas of a police station

Sergeant Laycock is clearly a very experienced police officer who has much to contribute in terms of valuable skills and knowledge. We recommend that Sergeant Laycock discuss his operational fitness and functional limitations with Dr Hehir and perhaps consider obtaining further specialist review regarding fitness for work and rehabilitation. His fitness for promotions can then be reviewed at a later date when his operational fitness has improved.

27 After receiving a copy of this report the applicant spoke to both Superintendent Hodsdon and Ms Angela Myers, the respondent’s Director of Workforce and Careers, about his promotion to the position of Investigations Manager. The applicant stated that Ms Myers told him on 19 September 2002 that “the promotion would not be authorised” but said “I was still able to perform the role by virtue of the ‘66’ agreement”. On the same date the applicant wrote a memorandum to Superintendent Hodsdon headed ‘Request for Urgent clarification regarding nomination of Detective Sergeant Laycock for the position of Investigations Manager, Detective Senior Sergeant – Lake Illawarra Command’. In that document, which is Attachment 18 to the applicant’s statement, he said:

I seek the view of this command in respect of my current position. Perhaps a guarantee or suggestions could be documented to assist and clarify the options I have in respect of my current circumstances.

Should this assistance not be supplied by Thursday the 26th of September I have no viable option other than to formally withdraw from the s 66 agreement, as of that date and return to duties at the former rank of Detective Sergeant at the Burwood Local Area Command.

28 The applicant has recorded that Superintendent Hodsdon responded on the same day in a report that “effectively denied the promotion to the rank of Detective Senior Sergeant”. In this document, which is Attachment 19 to the applicant’s statement, Superintendent Hodsdon wrote:

As such I must inform you that I can not support you (sic) promotion to the position of Investigations Manager.

I would also indicate that there is an error in you (sic) report in that this command had no knowledge of your prior injuries, until you commenced duty at Lake Illawarra and subsequently informed the command.

If you choose to return to your former command I am prepared to agree with the time frame as set out in your attached report. Alternatively if you wish to remain at Lake Illawarra you may perform the role of Investigations Manager, in a limited manner, that is conducive with the restrictions that have been imposed by Dr Rogers.

29 The applicant stated that he actually returned to the Burwood LAC on 16 October 2002 even though he had spoken to the Commander, Acting Superintendent Gilroy, on 25 September 2002 about his proposed return. The applicant asserted that he was entitled to return to “the former position and rank of Detective Sergeant Team Leader”. It was not in dispute that throughout the period after the applicant returned to Burwood LAC he was not placed in a position of Team Leader.

30 The applicant stated that during the period 16 October 2002 to 18 March 2003 he was “directed to perform duties that were demeaning, not consistent of my rank, experience, physical or academic abilities whilst at the Burwood Local Area Command”. Brief handling was one of the duties allocated to the applicant. The applicant described these duties as “demeaning and degrading and an insult to my rank, ability and experience”.

31 The applicant stated that throughout the period of time covered by the second complaint (7 September 2003 to 7 March 2004) he was denied the opportunity to relieve in higher graded positions of Crime Manager and Duty Officer. It was not in dispute that the applicant was not given the opportunity to relieve in these positions. According to the applicant he was informed by the Commander of the Burwood LAC on 4 February 2004 that he could not relieve in either position because both were “fully operational”.

32 Throughout the period of time covered by the second complaint the applicant stated that he “was denied meaningful duties and a basic quality of work” and that his “duties were not consistent with my rank, experience, academic ability and physical ability”. He claimed that “[b]y virtue of [a] medical report of Dr J Hehir dated the 20 August, 2003 I was deemed fit to perform the inherent requirements and job stream responsibilities of the position of Detective Sergeant, Team Leader, Burwood Local Area Command and that of Detective Senior Sergeant, Investigations Manager”. That is not what Dr Hehir stated in his report to the Burwood LAC, relevant parts of which are as follows:

Having looked through the brief of the job description sent to me, I can’t see any of the tasks that would not be achievable with his minor restrictions. He would still be able to use his gun and be able to take evasive action or get into any position that might be needed. He is capable of short runs etc. The situation of grappling with a large violent offender could be avoided in Mr Laycock’s case if he were accompanied by two other police to a confrontation or as I read it by the time he would arrive in this role the offender would already be in custody…

As I read the Senior Sergeant Investigations Manager, Mr Laycock would in his present state of health be capable of performing the job with a very few variations as outlined above.

33 The applicant lead evidence from Inspector Neil Higgins who stated that he had had recent experience as an Investigations Manager and as a Team Leader. He described these roles and referred to their unpredictable nature, especially when in the field. None of Inspector Higgins’ evidence was contentious.

34 The respondent lead evidence from seven witnesses: Mr Gary Hodsdon (former Commander, Lake Illawarra LAC), Inspector Frank Gilroy (former Commander, Burwood LAC), Ms Susan McNaught (former Rehabilitation Co-ordinator, Inner Metropolitan Region, NSW Police), Superintendent Catherine Burn (former Commander, Burwood LAC), Dr Tania Rogers (former Police Medical Officer), Ms Angela Myers (Director of Promotions and Selections, NSW Police) and Superintendent Stuart Smith (Crime Manager at Burwood LAC from October 2002 until September 2004). All of these witnesses, other than Superintendent Smith, were cross-examined by the applicant.

35 There is no need to set out the evidence of these witnesses in any detail because there were no factual disputes between their evidence and the evidence of the applicant’s witnesses which we need to resolve in order to determine these complaints.

36 Both Mr Hodsdon and Ms Myers gave evidence about the circumstances surrounding the applicant’s temporary promotion to the position of Investigations Manager at Lake Illawarra LAC. Inspector Gilroy and Superintendent Burn gave evidence about their dealings with the applicant when in the position of Commander of Burwood LAC. Superintendent Smith gave evidence about some of the duties which the applicant performed, or was directed to perform, at Burwood LAC during the time that Smith occupied the position of Crime Manager. Dr Rogers gave evidence about her dealings with the applicant, and his treating doctor (Dr Hehir), as a Police Medical Officer during the period from mid 2002 until September 2003. Ms McNaught gave evidence about her role as the applicant’s Rehabilitation Co-ordinator during the period from mid 2003 until mid 2004.

The law

37 It is useful, at this stage, to set out the relevant provisions of the Act which impose obligations on the respondent and grant legally enforceable rights to the applicant. In both complaints the applicant alleged that the respondent’s actions contravened s 49D(2) of the Act. He also alleged, erroneously, that the respondent had contravened s 49D(1)(c). This allegation was erroneous because s 49D(1) governs pre-employment situations only. That sub-section renders it unlawful for an employer to discriminate against an applicant, or a potential applicant, for employment on the ground of disability in various ways such as advertising for employees, imposing pre-employment testing, or in the terms and conditions offered to prospective employees.

38 At all relevant times the applicant was an employee of the respondent. Relations between employers and employees are governed by s 49D(2) which provides as follows:

(a) in the terms or conditions of employment which the employer affords the employee, or

(b) by denying the employee access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

39 Section 49D(4) contains an exception or defence to the conduct which is rendered unlawful by s 49D(2)(c) of the Act. That exception or defence does not apply to any of the conduct which falls within paragraphs (a), (b) or (d) of s 49D(2). Section 49D(4) states:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

40 Discrimination on the ground of disability is defined in s 49B to include both direct and indirect discrimination. In his complaints to the President of the ADB and in his Points of Claim the applicant cast his complaints as allegations of direct discrimination. At the commencement of the hearing the applicant sought to amend his Points of Claim to include allegations of indirect discrimination. As the applicant was unable to provide the requisite details of an indirect discrimination claim, such as the identification of any condition or requirement imposed upon him by the respondent which had an adverse impact upon people who had a similar disability to his own, or any reason for the very late inclusion of an indirect discrimination claim, this application was refused. Consequently, as the case proceeded to hearing as a series of allegations of direct discrimination only the definition of direct discrimination is relevant. That definition is found in s 49B(1)(a) of the Act which provides as follows:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability.

41 The term “disability” is defined broadly, and in functional terms, in s 4 of the Act. As we have noted, there was no dispute that the applicant had a “disability” at all material times. That disability was described by the parties as a back injury or impairment. There is no need in the circumstances of this case to undertake a detailed examination of the medical evidence concerning the nature of that back injury. In terms of the statutory definition of “disability”, the applicant’s back injury may be characterised as a “partial loss of a person’s bodily functions” (paragraph (a)) and “the malfunction of a part of a person’s body” (paragraph (c)).

42 The applicant claims that the respondent’s conduct towards him contravened paragraphs (a), (b) and (d) of s 49D(2) of the Act on a number of different occasions during the two separate periods of time covered by these complaints. The rights granted to employees and the obligations imposed upon employers by s 49D(2) of the Act are expressed at a very high level of generality. Consequently, those rights and obligations may sometimes prove difficult to ascertain in individual cases. This difficulty is exacerbated by the fact that s 49D(2) must be read in the light of s 49D(4) which provides an exception to some of the behaviour which would otherwise be unlawful pursuant to s 49D(2) of the Act.

43 The proper place of s 49D(4) in the overall statutory scheme concerning disability discrimination in employment is not readily apparent on an initial reading of the sub-section. Even though s 49D(4) is cast as a defence or exception to liability and negative language is used in part of the sub-section, it is also one of the rare provisions in the Anti-Discrimination Act which actually obliges employers to treat disabled people differently from others in the community. As the NSW Law Reform Commission said in 1999 when commenting upon s 49D(4):

(NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977 (Report No 92), (1999) at pp 254-5).

44 Section 49D(2) of the Act cannot be read in isolation from the body of law which governs relations between employers and employees generally, and from those laws which govern the specific employment relationship that is the subject of a particular case. Just as the High Court made it clear in Purvis vNSW (2003) 217 CLR 92 that the precise nature of a school principal’s obligations to a pupil under disability discrimination legislation must be determined in the light of the entire body of law which governs the relationship between a school and its pupils, so too must the precise nature of an employer’s obligations to an employee under disability discrimination legislation be determined by considering the entire body of law which governs that relationship. The provisions of the Anti-Discrimination Act add to the obligations cast upon employers by the common law, by statutes and by industrial instruments made pursuant to statute, such as awards and collective agreements. The obligations imposed upon employers and the rights conferred upon employees by the Anti-Discrimination Act must be construed in the light of those other laws. The language that is used throughout the Act when the relationship of employer and employee is regulated, such as “terms or conditions of employment”, “promotion” and “benefits associated with employment”, can only be properly understood when interpreted in the light of the entire body of law which governs the employment relationship.

45 Of particular importance in this case are those rules of law which govern the work to be performed by an employee. At common law an employer is entitled to determine what actual work an employee will perform so long as the parties have contracted for work of that nature and the employer’s directions are lawful and reasonable (see Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571). In many instances that common law rule is supplemented or augmented by another source of lawful authority such as a statute, or an award or industrial agreement. That has occurred in this case.

46 The Police Act contains a number of provisions which make it clear that the Commissioner of Police has the lawful authority to determine the nature of the work which will be performed by police officers. This Act clearly casts aside any old common law rules about the relationship between the Commissioner and police officers (see Jarratt vCommissioner of Police (2005) 79 ALJR 1581; [2005] HCA 50). Section 8(1) of the Police Act provides that, subject to the direction of the Minister, the Commissioner is responsible for the management and control of NSW Police. Section 8(3) states that the Commissioner “may classify the various duties that members of NSW Police are required to perform and allocate the duties to be carried out by each such member”. Section 9 requires police officers to comply with directions stemming, by implication, from the Commissioner:

(1) Police officers are required to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them.

(2) In particular, a police officer is required:

(a) to serve wherever the officer is duly directed, and

(b) to perform such police duty as may be duly directed, whether or not during the officer’s rostered hours of duty.

47 Section 10 permits the Commissioner to create, classify, grade and abolish positions within NSW Police. Appointments to non-executive positions of police officers are made by the Commissioner (s 64), who is empowered by s 66 of the Police Act to make temporary appointments to such positions and to terminate a temporary appointment at any time.

Conclusions

48 In this case the applicant has claimed that paragraphs (a), (b), and (d) of s 49D(2) of the Act imposed various obligations on the respondent which he did not meet and that in failing to meet those obligations the respondent unlawfully discriminated against him on the ground of his disability in various ways and at different times. The applicant’s claims are not correct, either legally or factually. Given the conclusions we have reached about the applicant’s claims it is unnecessary to individually consider every allegation of a contravention of the Act. We propose to deal with those claims using the characterisation of the various parts of the applicant’s complaints that has been employed by the respondent throughout the case (see paragraph [14], above). This characterisation permits all of the applicant’s claims to be fairly considered under five headings.

Denial of promotion

49 The applicant’s claims concerning his failure to secure promotion to the position of Investigations Manager at the Lake Illawarra LAC lie at the heart of this case. The applicant alleges that the respondent acted in breach of s49D(2)(a), (b) and (d) when both Ms Myers and Superintendent Hodsdon informed him on 19 September 2002 that his promotion could not proceed so long as there were medically imposed restrictions in place concerning the nature of the duties that he could fulfil. Whilst the applicant was not actually denied the promotion, because he chose to return to Burwood LAC before any formal determination was made, Ms Eastman made it clear that the respondent did not shy away from the fact that the applicant would not have been promoted had the medical restrictions remained in place and had the applicant allowed the formal processes to take their course.

50 This part of the applicant’s case falls squarely within s 49D(2)(b) of the Act for he has claimed that the respondent denied him “access … to opportunities for promotion” when Ms Myers and Superintendent Hodsdon acted as they did on 19 September 2002. The allegation that this action also breached paragraphs (a) and (d) of s 49D(2) is open to the applicant for the wrongs described in the various paragraphs of s 49D(2) clearly overlap and there is no good reason why one action, or course of conduct, by a respondent may not constitute multiple contraventions of the Act. However, the applicant’s claims involving breaches of s 49D(2)(a), (b) and (d) of the Act by the respondent involve a fundamental misunderstanding of those provisions because, like all of the sections of the Act which grant legal rights or impose legal obligations, they cannot be construed in a legal vacuum.

51 When deciding whether to promote the applicant to the position of Investigations Manager the respondent was permitted by law to determine the duties of that position and to judge whether the applicant could fulfil those duties both physically and legally. The respondent was clearly permitted to determine the nature of those duties because s 8(3) of the Police Act specifically permitted him to do so. One of the duties of the Investigations Manager which was determined by the Commissioner’s delegate, the Commander of the Lake Illawarra LAC, was to lead investigations in the field. This meant that the Investigations Manager risked physical confrontation with offenders. The problem which confronted the Commander was that the applicant’s treating doctor, Dr Hehir, had made it quite clear in his reports and in his conversation with the Police Medical Officer, Dr Rogers, that the applicant could not engage in activities such as physical confrontations with offenders. Dr Hehir had certified only a few months previously that the applicant was fit for permanently modified duties of an “office type” only. On 5 September 2002 Mr William Wolfenden, a consultant neurologist, examined the applicant and prepared a report about him for use in workers compensation proceedings. Mr Wolfenden stated in that report:

It would appear that he became worse after I last saw him and has required further surgery, since which time he has returned to about the same level as he was when I last saw him. He has a considerable disability. He cannot play properly with his children and it would be impossible for him to return to full Police duties and he must be restricted to office work. In addition, his chances of promotion have been removed.

52 Shortly afterwards there was a judicial assessment of the applicant’s physical limitations because on 15 October 2002, only a few weeks after the applicant was advised by Superintendent Hodsdon that he could not be confirmed in the position of Investigations Manager, the Compensation Court determined that the applicant’s physical condition was such that he was entitled to compensation for one-third permanent impairment of his back and 20% loss of use of his left leg.

53 As we understood the applicant’s case, his response to the stipulation by the respondent that the Investigations Manager must have the capacity to become involved in physical confrontations if required was two-fold. First, he asserted that as confrontations of this nature rarely occurred they should be discounted and, secondly, he suggested that could be accompanied by two other officers when in the field so that they could deal with any physical confrontation. There are numerous difficulties with this response. The applicant stated in his own evidence that he had been involved in a physical confrontation with an offender during the time he was acting in the position of Investigations Manager. The applicant’s own witness, Inspector Higgins, who had had considerable experience as an Investigations Manager, was not prepared to concede that an Investigations Manager could always avoid physical confrontation because of the unpredictable nature of that job. The suggestion that the applicant could fulfil the job by being accompanied by two other officers when there was a possibility of physical confrontation required the respondent to change the nature of the job of Investigations Manager which he was not obliged by law to do.

54 When deciding whether to promote the applicant to the position of Investigations Manager the respondent was permitted to determine whether the applicant could legally, as well as physically, fulfil those duties. Like the respondents in X v Commonwealth (1999) 200 CLR 177 and Purvis vNSW (2003) 217 CLR 92, the respondent in this case was clearly obliged to consider his legal responsibilities to the applicant, and to others, if it placed the applicant in a position where he risked his own safety, or that of others, as a result of a condition that was clearly known to the respondent. One of the reasons why Superintendent Hodsdon sought advice from the Police Medical Officer was his concern about the respondent’s potential legal liability if the applicant remained in the position of Investigations Manager. That was a prudent and reasonable course of action. The Police Medical Officer, Dr Rogers, did not make a unilateral decision. She sought advice from the applicant’s doctor and, upon receipt of that advice, she urged the applicant to consider further review by a specialist in the hope that some of the restrictions imposed by Dr Hehir may be lifted or varied. In the circumstances of this case the respondent would have risked legal action from the applicant had he been injured whilst in confrontation with an offender and he would have risked legal action from other police officers and members of the community had they been injured due to the applicant’s inability to deal with a violent offender because of his back injury.

55 On the facts of this case the respondent did not deny the applicant an opportunity for “promotion” because the job to which the applicant sought to be promoted was not the job which the respondent had offered to the applicant, or to anyone else who chose to apply for it. The applicant sought to be promoted to a different job: one which was shorn of both the duties which the applicant’s doctor said he could not perform and of the legal risks associated with placing him in the job which had been offered. Section 49D(2)(b) of the Anti-Discrimination Act did not require the respondent to alter the duties of the job which he was offering in order to cater for an employee, such as the applicant, who could not physically, or legally, perform all of those duties as a result of his disability. The respondent did not deny the applicant an opportunity for “promotion” because the applicant was not willing, or able, to occupy the job which the respondent had offered on a promotional basis.

56 The same analysis can be used to dispose of the claims that the respondent breached s 49D(2)(a) and (d) of the Act when both Ms Myers and Superintendent Hodsdon informed him on 19 September 2002 that his promotion could not proceed so long as there were medically imposed restrictions in place concerning the nature of the duties that he could fulfil. As far as the claim under s 49D(2)(a) is concerned, it was not a “term or condition” of the applicant’s employment that he was entitled to a job which was specifically re-designed for him after deleting the duties that he could not perform. The Police Act makes it clear that, subject to the contents of any applicable industrial instruments, the Commissioner had the lawful power to determine the terms or conditions of employment of police officers. As far as s 49D(2)(d) is concerned, it did not amount to “subjecting the employee to any other detriment” for the respondent to decline to promote the applicant to a job when he could not perform the actual duties of that job because there were medically imposed restrictions in place concerning the nature of the duties that he could fulfil.

57 The disability discrimination provisions in the Anti-Discrimination Act do not require an employer to alter the duties of a job in order to accommodate a person with a disability in any circumstances. Whether they ought to do so in some circumstances is a policy issue which it is for the parliament, and not the Tribunal, to determine. Even in those cases when the so-called ‘inherent requirements’ defence in s 49D(4) of the Act is in issue - when an employer may be contemplating refusing to hire or dismissing an employee - the employer is under no obligation to alter the duties of the job in order to cater for an employee with a disability. What s 49D(4) requires an employer to do before failing to hire a person, or dismissing an employee, with a disability who may be unable to perform the job in question because of that disability is to: (1) properly identify the inherent requirements of the job (being the actual requirements as opposed to the imagined or theoretical requirements), (2) determine whether the employee with a disability could perform those inherent requirements of the job with the aid of services or facilities which are not required by people without the employee’s disability, and (3) determine whether it would impose an unjustifiable hardship on the employer to provide the employee with those services or facilities which would enable him or her to perform the job in question.

58 The first part of this process – identifying the inherent requirements of the job – does not require the employer to alter the duties of the job in question in order to render the job suitable for a person with a disability. What it does require the employer to do is to focus upon what the occupant of the job actually does in the workplace rather than to proceed with assumptions about what the occupant might theoretically do but never in fact does as part of the job. The second and third parts of this process oblige employers to treat some people with a disability differently from others in the community. When dealing with job applicants with a disability, or existing employees with a disability who are facing dismissal, the employer must consider whether the applicant or employee could perform the inherent requirements of the job with the aid of services or facilities which are not required by people without that person’s disability and then determine whether it would impose an unjustifiable hardship on the employer to provide that person with those services or facilities.

59 So described, s 49D(4) of the Act is more than a defence or exception to liability. In certain limited circumstances (hiring and firing) it places a positive obligation on an employer to identify whether a person with a disability could perform the job in question with the aid of services or facilities and then to provide the person with those services or facilities if it would not impose an unjustifiable hardship on the employer to do so. It is a legislative stipulation that there be different treatment of people with a disability in those limited circumstances. An employer may invoke the defence or exception to liability set out in s 49D(4) only when the employer has done the positive things dictated by that sub-section.

60 A similar view has been taken of the equivalent provision in the Commonwealth Disability Discrimination Act 1992. The relevant provisions in the Commonwealth Act are for all intents and purposes the same as those found in Part 4A of the Anti-Discrimination Act which deals with discrimination on the ground of disability. When describing the operation of the ‘inherent requirements’ defence in s 15(4) of the Disability Discrimination Act in Cosma v Qantas AirwaysLimited [2002] FCA 640 at [68], Heerey J stated:

The provision does not require the employer to alter the nature of the particular employment or its inherent requirements. Rather it is a question of overcoming an employee’s inability, by reason of disability, to perform such work. This is to be done by provision of assistance in the form of “services”, such as providing a person to read documents for a blind employee, or “facilities” such as physical adjustment like a wheel chair ramp. The “services” or “facilities” are external to the “particular employment” which remains the same.

61 This decision was upheld by the Full Court of the Federal Court on appeal (Cosma v Qantas Airways Ltd (2002) 124 FCR 504).

62 In contrast to ‘hiring and firing’ cases when the obligations cast upon an employer by s 49D(4) of the Act must be met in order to avoid a finding of disability discrimination, an employer is not required by any provision in the Anti-Discrimination Act which is relevant in this case (those in s 49D(2)(a), (b) and (d)) to treat an existing employee with a disability in a different way to other employees when making decisions about promotion and other work-related matters such as the terms and conditions of employment. Only the first part of the process described in paragraph [57] applies when an existing employee with a disability seeks promotion to another job. Subject to what may be dictated by other laws and industrial instruments, the employer is entitled to determine the duties of that job. When determining whether an existing employee with a disability can perform the duties of the job the employer must measure whether that employee can perform the actual duties of the job as opposed to those duties that the occupant might theoretically perform but never in fact does undertake as part of the job. If an employee with a disability cannot perform some of those duties that is the end of the matter for he or she is not an applicant for promotion to the actual job in question. Unlike those instances which trigger the operation of s 49D(4) – hiring and firing cases – the employer is not required to undertake the additional positive steps of determining whether an employee with a disability could perform the job in question with the aid of services or facilities and then providing the employee with those services or facilities if it would not impose an unjustifiable hardship on the employer to do so.

63 In promotions cases, as in ‘hiring and firing’ cases, the employer is not required to alter the duties of the job in order to cater for an employee with a disability. The legal situation confronting both employers and employees is further complicated, however, by the requirement in workers compensation legislation that an employer must provide an employee who has been totally or partially incapacitated as a result of a work caused injury with suitable employment as part of a process of rehabilitation. Section 49 of the Workplace Injury Management and Workers Compensation Act 1998 provides as follows:

(2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 43A of the 1987 act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.

(3) This section does not apply if:

(a) it is not reasonably practicable to provide employment in accordance with this section, or

(b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or

(c) the employer terminated the worker’s employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury.

64 “Suitable employment” is defined in s 43A of the Workers Compensation Act 1987 in the following terms:

“suitable employment”, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:

(a) the nature of the worker’s incapacity and pre-injury employment,

(b) the worker’s age, education, skills and work experience,

(c) the worker’s place of residence,

(d) the details given in the medical certificate supplied by the worker,

(e) the provisions of any injury management plan for the worker,

(f) any suitable employment for which the worker has received rehabilitation training,

(g) the length of time the worker has been seeking suitable employment,

(h) any other relevant circumstances.

(2) In the case of employment provided by the worker’s employer, suitable employment includes:

(a) employment in respect of which:

(ii) the range of duties the worker performs,

(b) if the employer does not provide employment involving the performance of work duties—suitable training of a vocationally useful kind provided:

(ii) by any other person or body under arrangements made with the employer,

(3)…

65 No doubt it was these provisions concerning “suitable employment” which Dr Hehir had in mind when he completed the WorkCover form on 4 April 2002 in which he indicated that the applicant was fit for permanently modified duties only. It appears that an incorrect view of the effect of s 49 of the Workplace Injury Management and Workers Compensation Act on his entitlements may lie at the centre of the applicant’s claims. The requirement in s 49 of the Workplace Injury Management and Workers Compensation Act that the respondent provide the applicant with “suitable employment” does not detract from the power given to the Commissioner by s 8(3) of the Police Act to determine the duties of every police officer. Also, it does not alter the legal obligations cast upon the respondent by the Anti-Discrimination Act by requiring him to modify the duties of the job of Investigations Manager at the Lake Illawarra LAC, or any other job, in order to cater for the fact that the applicant could not perform all of the duties of that job as a result of his work caused injury. There would need to be an unequivocal statutory directive that an employer must alter the duties of a job to cater for an employee with a disability in order to displace the longstanding common law rule that an employer may determine the duties to be performed by an employee, and to modify the clear legislative stipulation in s 8(3) of the Police Act that the Commissioner is empowered to determine the duties to be performed by police officers. Section 49 of the Workplace Injury Management and Workers Compensation Act when read alone, or when read in conjunction with s 49D(2) of the Anti-Discrimination Act, does not contain that unequivocal statutory directive. The remedies for failure to comply with s 49 of the Workplace Injury Management and Workers Compensation Act lie within that Act alone.

66 The interaction between the requirements of the Commonwealth workers compensation and disability discrimination legislation, and the general rules of law governing the employment relationship, was at the centre of the decision in Cosma v Qantas Airways Ltd (2002) 124 FCR 504. In that case an employee who was injured at work in 1991 was dismissed six years later because he could no longer fulfil the duties of his actual job. Between 1992 and 1997 the employee had worked in various temporary positions which had been identified by his employer as “suitable employment” in compliance with its requirements under the relevant Commonwealth legislation, s 40(1) of the Safety, Rehabilitation and Compensation Act 1988. The employee argued that his dismissal from employment constituted unlawful disability discrimination. The employer admitted that it dismissed the employee because he could not perform the duties of his job as a result of his disability but claimed that its actions were lawful because they fell within the ‘inherent requirements’ exception in s 15(4) of the Disability Discrimination Act. The employer claimed that the employee could not perform the duties of his actual job, even with additional services or facilities. The employee claimed that his subsequent “suitable employment” jobs should be taken into account when measuring whether he could perform the inherent requirements of his job.

67 Both Heerey J at first instance and the Full Court of the Federal Court on appeal accepted the employer’s argument that the employee’s capacity to perform his actual job, rather than the subsequent temporary jobs, was the point in issue. The Full Court rejected the employee’s attempt “to create his own classification of employment” (120 FCR 504 at [24]). That is precisely what the applicant has sought to do in this case. He has continually asserted that the respondent was obliged to create a special position for him being the job of Investigations Manager at Lake Illawarra LAC stripped of those duties which his own treating doctor had said he could not perform. The disability discrimination provisions in the Anti-Discrimination Act do not require an employer to do this.

68 Even if the foregoing analysis is incorrect, there is a second quite separate reason why the applicant’s claim that the ‘denial of promotion’ to the job of Investigations Manager at the Lake Illawarra LAC constituted unlawful discrimination on the ground of disability is incorrect. In a direct discrimination case the applicant’s treatment by the respondent must be contrasted with the way in which the respondent did treat, or would have treated, another person without the applicant’s disability in the same or similar circumstances. This is dictated by the definition of direct discrimination in s 49B(1)(a) of the Act. Determining the precise nature of the same or similar circumstances is sometimes an exercise of some subtlety. When describing the operation of the equivalent provision in the Commonwealth Disability Discrimination Act - s 5(1) - Gummow, Hayne and Heydon JJ stated in Purvis v NSW (2003) 217 CLR 92 at 160-1:

those

[224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with the person’s disability. There may be cases in which identifying the circumstances of the intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

69 Ms Eastman was correct when she stated in her written submissions that on the facts of this case “[t]he relevant circumstances for the purpose of the comparison is the circumstance whereby an employee is unable to perform the duties of the role for which he/she applied and demands that the employer waive its rights to demand performance”. We are satisfied that Ms Myers and Superintendent Hodsdon acted as they did on 19 September 2002 because of expert opinion that the applicant could not fulfil all of the duties of the job to which he wished to be promoted. We are not satisfied that the respondent would have treated an employee who did not have a disability which was the same as or similar to the applicant’s disability, and who could not perform all of the duties of the job, more favourably than the applicant. It was the applicant’s inability to perform the duties of the job, and not the reason for that inability, which was the operative factor. As Ms Eastman submitted, the result would have been the same had an applicant for promotion to the job of Investigations Manager at the Lake Illawarra LAC been unable to fulfil the actual duties of that job for any other reason.

70 The respondent did not treat the applicant less favourably than he would have treated another person without the applicant’s disability in the same or similar circumstances when his delegates, Ms Myers and Superintendent Hodsdon, informed the applicant on 19 September 2002 that he could not be appointed to the job of Investigations Manager at the Lake Illawarra LAC whilst there were some duties of that job which could not perform. The applicant’s claims concerning his failure to secure promotion to the position of Investigations Manager at the Lake Illawarra LAC cannot be accepted.

Denial of transfer to substantive position and rank

71 All of the applicant’s other claims are directly related to what has been characterised as the denial of promotion on 19 September 2002. The applicant alleges that the respondent acted in breach of s 49D(2)(a), (b) and (d) of the Act when the Commander of the Burwood LAC refused to transfer him back to his “substantive rank and position of Detective Sergeant Team Leader” at Burwood after he left the Lake Illawarra LAC on 26 September 2002. This conduct was alleged by the applicant to constitute discrimination on the ground of his disability in relation to the terms and conditions of employment (s 49D(2)(a)), by denying him a transfer (s 49(2)(b)), and by subjecting him to a detriment (s 49D(2)(d)).

72 It was not in dispute that the applicant did not return to the job that he had previously occupied at Burwood LAC and that he did not return to the position of Team Leader. It was also not in dispute that the applicant did return to a position at the rank of Sergeant at Burwood, that he retained the designation ‘Detective’ whilst in that position, and that he was remunerated at the level of Detective Sergeant.

73 Ms Eastman was correct when she submitted that the applicant’s claim concerning his return to Burwood LAC was essentially an industrial matter in relation to the operation of agreements made under s 66 of the Police Act rather than a claim of disability discrimination.

74 The applicant’s evidence and submissions demonstrate that he did not properly understand the operation of s 66 of the Police Act. That section, which is headed ‘Temporary appointments to non-executive positions’, permits the Commissioner to temporarily appoint police officers to various positions including those which are available by way of promotion. It is apparent that a major reason for temporary appointments is to permit those officers who were not selected for promotion to appeal against that decision. If the appeal is successful the officer who temporarily occupied the position must vacate it. In order to provide some protection to officers who are temporarily promoted, s 66 also provides for agreements between the Commissioner and the temporarily promoted police officer concerning what will happen to that officer in the event that the promotion does not proceed. In this case the applicant signed a document headed ‘S 66 Appointment – Negotiated Relocation Agreement’ which provided as follows:

I will be placed into a position at my current substantive rank, at Burwood LAC.

75 In his statement the applicant claimed that at the time of entering the agreement “I was of no misunderstanding that the position I would return to would be that of the former position that I retained – Detective Sergeant, Team Leader at Burwood Local Area Command”. If that was the applicant’s understanding at the time he signed the ‘s 66 agreement’ it was incorrect for it demonstrates a failure on his part to appreciate what was clearly meant by the terms “a position” and “my current substantive rank”. The applicant cannot change the agreement that he signed on 21 January 2002 in order to produce the outcome which he now desires.

76 The ranks and grades of police officers are governed by s 12 of the Police Act. By virtue of s 12(1)(e) there is a rank of “sergeant”. Regulation 6(1) of the Police Regulation 2000 establishes various grades within the ranks. For instance, a person with the rank of “constable” may have the grade of “senior constable”. At the time the applicant signed the ‘s 66 agreement’ his “current substantive rank” was “sergeant” and he had not yet achieved the higher grade within that rank of “senior sergeant”. Whilst the applicant was a “detective” at the time he signed the ‘s 66 agreement’, that is neither a rank nor a grade. It is a designation. Regulation 6(2) of the Police Regulation 2000 provides as follows:

A police officer of any rank may, on satisfying requirements specified by the Commissioner, be designated as a detective.

77 The ‘s 66 agreement’ which the applicant signed on 21 January 2002 guaranteed him nothing more than return to a position at the rank of Sergeant at the Burwood LAC. “Team leader” is not a rank and neither is “detective”. “Team leader” was the title given to the occupant of a particular position. The actual position of “team leader” which the applicant had occupied at Burwood was not available when he returned because it had been permanently filled by another police officer shortly after the applicant moved to the Lake Illawarra LAC. In any event, the ‘s 66 agreement’ did not give the applicant an entitlement to return to any particular position: it simply guaranteed him a right to a position at the rank of Sergeant in the event that his temporary appointment to the job at the Lake Illawarra LAC did not proceed. It is quite clear that the applicant returned to a position at the Burwood LAC at his substantive rank of Sergeant and that he was remunerated accordingly. The respondent complied with his obligations under the ‘s 66 agreement’.

78 Once the operation of s 66 of the Police Act is properly understood there can be no suggestion that the respondent caused the applicant to receive less favourable treatment in relation to the terms and conditions of employment (s 49D(2)(a)), that the respondent denied him a transfer (s 49(2)(b)), or that the respondent subjected him to a detriment (s 49D(2)(d)) on the ground of his disability. There is no evidence that the applicant suffered any of these ills or that the respondent, when determining which position the applicant would occupy on his return to the Burwood LAC, treated him less favourably than he would have treated a person in the same or similar circumstances who did not have a similar disability to the applicant. This aspect of the applicant’s claims is without merit.

Detriment in respect of work allocation during the identified periods

79 The applicant alleges that the respondent acted in breach of s49D(2)(a), (b) and (d) of the Act during the two periods of time covered by the complaints when the two Commanders of the Burwood LAC (Acting Superintendent Gilroy and Superintendent Burn) allocated him duties that he considered “demeaning, not consistent of my rank, experience, physical or academic abilities”. Whilst the applicant did not clearly describe how this alleged conduct amounted to breaches of the nominated substantive provisions in the Act, it appears to involve the claims that the allocation of duties constituted discrimination on the ground of his disability in relation to the terms and conditions of employment (s 49D(2)(a)), by denying him benefits associated with employment (s 49(2)(b)), and by subjecting him to a detriment (s 49D(2)(d)).

80 The claims concerning the work allocated to the applicant upon his return to the Burwood LAC are inextricably linked to the claims concerning the applicant’s promotion to the job at the Lake Illawarra LAC and to the position that he was entitled to occupy on his return to Burwood. Like those claims, these work allocation claims are based on a misunderstanding by the applicant of his entitlements and the legal obligations of the respondent under the Act.

81 Throughout the period following his return to the Burwood LAC in late 2002 the applicant remained under restrictions imposed by his treating doctor concerning the duties he could perform. On 28 November 2002 Dr Hehir wrote that “he is unable to get back to full active service because of the risk of aggravating his back condition”. Dr Hehir went on to say that: “He is currently certified by me for a restrictive role in police work. He is to avoid heavy lifting or severe/violent bending or twisting actions”. A few weeks later, on 11 December 2002, Dr Rogers, the Police Medical Officer, wrote to the Commander of the Burwood LAC and provided further information and recommendations:

Dr Hehir thought that Sergeant Laycock could sit for 30-45 minutes a time with 5 minutes break to move around. He thought that spending would not be a problem as long as Sergeant Laycock could move around and change posture.

Sergeant Laycock said that he could sit for a variable period time depending on the day which could be anything from 5 minutes to 1 hour. However he agreed that a sitting limit of 30 minutes at a time with 5-10 minute breaks to move around was probably reasonable.

He said that he could stand for at least 10-20 minutes if able to lean on something. He stated that he is not happy with brief handling work as it requires him to twist and reach for documents frequently which causes him pain. He is happy with his current duties and said he could do 95% of requirements in his current position.

Recommendations

After speaking with Dr Hehir and Sergeant Laycock, I conclude Sergeant Laycock is ideally fit for light work that alternates sitting for up to 30 minutes with standing and walking around for about 10 minutes.

However he can do work that requires sitting (e.g. office work) if he can have 5 minute stretch breaks at least every 30 minutes as well as his usual rostered lunch break.

Dr Hehir has previously specified a lifting limit of 20 kg, but this probably assumes an ideal lifting technique, otherwise the weight should be lowered.

If sitting for long periods he requires an ergonomically correct workstation with his chair and monitor adjusted to the correct height. He should avoid recurrent reaching with his arms extended. Objects that he uses frequently should ideally be placed in his immediate reach zone; that is, the zone that he reaches with his hands if his shoulders and elbows are kept in a relaxed position.

He should avoid recurrent bending from the waist.

Other standard non-operational restrictions should apply…

82 In view of this situation it is not correct for the applicant to suggest that he was subjected to detriment in respect of the work allocated to him at the Burwood LAC during the identified periods on the ground of his disability in breach of any of the obligations imposed upon the respondent by paragraphs (a), (b) and (d) of s 49D(2) of the Act. As we have indicated previously, the relevant provisions in the Anti-Discrimination Act did not require the respondent to create a new job for the applicant, or to remove duties from an existing one, in order to cater for the work restrictions which had been imposed upon the applicant by his treating doctor. Neither the Anti-Discrimination Act, nor any other law which governs the employment relationship, allowed the applicant to choose the duties that he would perform and to reject those duties which he considered “demeaning, not consistent of my rank, experience, physical or academic abilities”.

83 The respondent was faced with the difficult task of trying to find some meaningful work for the applicant to perform throughout the two periods of time covered by these complaints. The evidence establishes that a number of people employed by the respondent invested a considerable amount of time and energy in seeking to locate duties which the applicant could perform which were commensurate with his skills and experience but which did not infringe the restrictions imposed by Dr Hehir. The claims that the allocation of tasks such as brief handling to the applicant constituted unlawful discrimination on the ground of disability are baseless.

Denial of higher duties during the second identified period

84 The applicant alleges that the respondent acted in breach of s49D(2)(a), (b) and (d) of the Act when the Commander of the Burwood LAC refused to allocate him higher duties during the period 7 September 2003 until 7 March 2004. This conduct was said to constitute discrimination on the ground of the applicant’s disability in relation to the terms and conditions of employment (s 49D(2)(a)), by denying him a benefit associated with employment (s 49(2)(b)), and by subjecting him to a detriment (s 49D(2)(d)).

85 As with the applicant’s claims concerning demeaning duties, his claims about denial of higher duties during the identified period are inextricably linked to the allegations concerning the applicant’s promotion to the job at the Lake Illawarra LAC and to the position that he believed he was entitled to occupy on his return to Burwood. Like those other claims, the applicant’s claims about denial of higher duties are based on a misunderstanding of his entitlements and of the legal obligations of the respondent.

86 It was not in dispute that the applicant was not offered any higher duties work during the second identified period even though it was available from time to time and even though the applicant requested it. The evidence reveals that throughout the period between 7 September 2003 and 7 March 2004 the applicant remained under restrictions imposed by his treating doctor concerning the duties he could perform. During this period the applicant had regular absences to attend physiotherapy during working hours.

87 The applicant continued to assert, however, that the respondent should alter the duties of existing positions in order to create a job especially for him. For instance, on 4 February 2004 the Commander of the Burwood LAC, Superintendent Burn, sent the applicant an email in which she identified jobs which he had been offered and which he could safely perform despite his medical restrictions. These ‘office type’ type jobs included brief manager and compliance coordinator. The applicant stated in his email response to Superintendent Burn on the same day:

I appreciate the alternative duties offer and at this point in time I am not prepared, unless directed, to do any of these duties as they in my view are not meaningful and possibly a catalyst to further injury. However I must state that I believe (supported by medical evidence) that I am fit enough to fulfill (sic) the duties of a team leader in C.I. or Investigation Manager with minor and not unreasonable ammendments (sic) to to these duties ie: No aggressive twisting/ heavy and repetitive lifting. One of these two positions are vacant at the moment and of late there have been people releiving (sic) into these positions whilst I have been present and working in the office.

88 The relevant provisions in s 49D(2) of the Act did not permit the applicant to pick and choose the duties which he considered meaningful and nor did they give him an entitlement to act up in a higher duties position as a detective whilst the medical restrictions remained in place concerning the duties that he could fulfil. The Commander of the Burwood LAC was entitled to decline to allocate the applicant a higher duties position as Team Leader or Investigations Manager for as long as he could not perform the duties of those positions. One of those duties included the capacity to deal with physical confrontations with offenders. The Commander would have exposed the applicant to unacceptable physical danger had she permitted him to occupy one of these positions of a higher duties basis and she would have exposed the respondent to potential legal risk had she placed the applicant in a job which contained duties which she knew the applicant’s treating doctor said he could not safely perform. There is no substance to the applicant’s claims concerning denial of higher duties between 7 September 2003 and 7 March 2004.

Failure to accommodate

89 The applicant’s final group of claims concern what is alleged to be a denial by the respondent of assistance to, or accommodation of, the applicant in relation to his disability. These claims involve the periods of time covered by both the first complaint and the second complaint. The applicant alleges that in denying him assistance and accommodation the respondent acted in breach of s49D(2)(a), (b) and (d) of the Act in a variety of ways and on numerous occasions.

90 The accommodation or assistance which the applicant claims to have been denied include: (1) failure to provide him with a rest seat for use in the field when he was the Investigations Manager at the Lake Illawarra LAC, (2) failure to provide him with other unspecified assistance which would have enabled him to fulfil all of the duties of that position, (3) failure to provide a functional assessment in order to determine the duties he could perform at Burwood and Lake Illawarra LAC, and (4) failure to assess the feasibility of Dr Hehir’s suggestion that the applicant have two other police officers present when responding to a confrontational situation.

91 In his Points of Defence the Commissioner responded to all of the applicant’s claims concerning failure of accommodation or assistance by stating that:

26 Even if such an obligation to accommodate existed in the Act, the Respondent says that he accommodated the Applicant to ensure that he could remain in employment performing duties which were appropriate having regard to his disability and the operational requirements of the Police Service.

92 Both of these statements are correct. Subject to what has been said previously about s 49D(4) (and the equivalent provisions elsewhere in Part 4A of the Act, such as s 49L(4) and (5)), the Anti-Discrimination Act “does not explicitly oblige persons to treat disabled persons differently from others in the community” (Gummow, Hayne and Heydon JJ in Purvis v NSW (2003) 217 CLR 92 at 155). None of the substantive provisions in the Act which are relevant in this case - those in s 49D(2) - imposed obligations on the respondent to “accommodate” the applicant in the ways that he has claimed, or in any other ways. Despite that lack of obligation, the evidence convinces us that the respondent went to considerable lengths to assist the applicant to deal with his disability and to provide him with suitable work which he could reasonably perform. There is no merit to the applicant’s allegations concerning a failure of accommodation.

Decision and orders

93 As we have found that all of the applicant’s claims lack merit the decision of the Tribunal must be that the complaints are not substantiated. The respondent should have an opportunity to seek an order of costs if he so desires and the applicant must be given an opportunity to respond to any such application.

94 The Tribunal makes the following orders:

2. The respondent must file and serve written submissions in support of any application which he proposes to make for costs within 14 days of the date of these orders.

2. The applicant must file and serve any written submissions he proposes to make in opposition to an application by the respondent for costs within 14 days of receiving the respondent’s written submissions.

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Citations

Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261

Most Recent Citation

Ryan v Commissioner of Police, NSW Police Force (No 2) [2021] FCA 106

Cases Citing This Decision

18

Jenkins v Secretary, Department of Education [2021] NSWCATAD 185

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Czerniecki v TAFE NSW [2017] NSWCATAD 278

Cases Cited

7

Statutory Material Cited

7

Purvis v New South Wales [2003] HCA 62

Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73

CITATION:	Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Christopher Laycock RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	051106
HEARING DATES:	10, 11 & 12/04/2006
SUBMISSIONS CLOSED:	05/08/2006
DATE OF DECISION:	09/06/2006
BEFORE:	Rees N - Judicial Member; Antonios Z - Non Judicial Member; Mooney L - Non Judicial Member
CATCHWORDS:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Occupational Health and Safety Act 2000 Police Act 1990 Safety, Rehabilitation and Compensation Act 1988 (Cth) Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Cosma v Qantas Airways Limited [2002] FCA 640 Cosma v Qantas Airways Ltd (2002) 124 FCR 504 Jarratt v Commissioner of Police (2005) 79 ALJR 1581; [2005] HCA 50 Purvis v NSW (2003) 217 CLR 92 X v Commonwealth (1999) 200 CLR 177 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	1.Complaints dismissed; 2.The respondent must file and serve written submissions in support of any application which he proposes to make for costs within 14 days of the date of these orders; 3.The applicant must file and serve any written submissions he proposes to make in opposition to an application for costs by the respondent within 14 days of receiving the respondent’s written submissions

[2006] NSWADT 261

06/09/2006