Laycock v Commissioner of Police, NSW Police (EOD)

[2007] NSWADTAP 34

Appeal Panel - Internal

CITATION:	Laycock v Commissioner of Police, NSW Police (EOD) [2007] NSWADTAP 34
PARTIES:	APPELLANT Christopher Laycock RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	069062
HEARING DATES:	15 February 2007
SUBMISSIONS CLOSED:	15 February 2007
DATE OF DECISION:	12 July 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	leave to extend to the merits - procedural fairness - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	051106
DATE OF DECISION UNDER APPEAL:	09/06/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Disability Discrimination Act 1992 (Cth) Police Act 1990 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 Coleman v Commissioner of Police, NSW Police [2001] NSWADT 34 Cosma v Qantas Airways Limited [2002] FCA 640 K v K [2000] NSWSC 1052 Obradovic v Commissioner for Fair Trading, Office of Fair Trading (No 2) (GD) [2006] NSWADTAP 45 Purvis v State of NSW (2003) 217 CLR 92 Re R [2000] NSWSC 886 (17 August 2000) S v S [2001] NSWSC 146 X v Commonwealth (1999) 200 CLR 177
REPRESENTATION:	APPELLANT In person RESPONDENT K Eastman, counsel
ORDERS:	1. Leave is refused to extend the appeal to the merits of the Tribunal’s decision; 2. Appeal dismissed.

REASONS FOR DECISION

Introduction

1 Mr Laycock worked as a police officer with NSW Police from 1990 until 2004. He injured his back in 1992 and has had two operations since then. He says that his employer, the Commissioner of Police, (the Commissioner) unlawfully discriminated against him on the ground of his disability during the course of his employment. The alleged discrimination related to denials of a transfer, refusal to promote, allocation of demeaning work and availability of higher duties. The Commissioner says that Mr Laycock was not fit to perform the duties required of those positions and denied that the alleged conduct was in breach of the Anti-Discrimination Act1977 (AD Act). The Tribunal dismissed Mr Laycock’s complaints and he has appealed to the Appeal Panel against that decision.

Appeal Panel’s jurisdiction

2 Mr Laycock filed a Notice of Appeal within the time allowed for such appeals but did not include any grounds of appeal in that document. He asked the Appeal Panel for an extension of time to lodge his appeal. The Commissioner accepts that Mr Laycock lodged his appeal within time and did not object to him being given leave to amend the Notice of Appeal to add the grounds of appeal. That leave is granted.

3 An appeal to the Appeal Panel is made under section 115 of the AD Act. Section 113(2)(a) of the Administrative Decisions Tribunal Act 1997 (ADT Act) provides that appeals may be made with respect to 'any question of law'. Section 113(2)(b) requires the Appeal Panel to give leave before the appeal may extend to a review of the merits of the Tribunal’s decision. Mr Laycock sought leave to extend his appeal to the merits of the Tribunal’s decision. We deal with that application at [67] below.

Tribunal’s decision

4 Categorisation of complaints. The Tribunal adopted the following categorisation of Mr Laycock’s numerous allegations of discrimination:

1. denial of promotion in September 2002;

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; and

5. failure to accommodate.

5 Mr Laycock does not challenge the Tribunal's findings in relation to category number 5, failure to accommodate, and there is no need to say any more about the Tribunal’s findings in relation to that aspect of Mr Laycock’s complaint.

6 Legal framework. The Tribunal correctly identified the relevant provisions of the AD Act applying to this case. In summary, s 49D(2) of the AD Act makes it unlawful for an employer to discriminate against an employee on the ground of disability in relation to various aspects of employment. Mr Laycock alleged that the Commissioner had breached s 49D(2)(a), (b) and (d):

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or

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

. . .

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

7 So far as is relevant to these proceedings, disability discrimination is defined in s 49B:
1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(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,
8 The Tribunal also referred in some detail to the ‘inherent requirements’ exception in s 49D(4) but pointed out that that defence only applies to decisions relating to hiring and termination, so was not directly relevant in this case.

9 Issues identified by the Tribunal. The Tribunal observed at [3] of its decision that, “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 and upon the proper characterisation of various actions taken by the respondent in response to the applicant’s disability.” Those two issues remain the critical issues on appeal. The Tribunal found that Mr Laycock had claimed that “paragraphs (a), (b), and (d) of s 49D(2) impose various obligations on the Commissioner 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 the Tribunal’s view that characterisation of the complaint was not correct, either legally or factually.

10 Mr Laycock’s case. When s 49D(2) is read together with the definition of disability in s 4 and the definition of direct disability discrimination in s 49B(1)(a), Mr Laycock’s case was that:

(i) he had a disability within the meaning of that term in s 4 of the AD Act ;

(ii) The Commissioner discriminated against him on the ground of his disability by denying him access to an opportunity for promotion, denying him access to a transfer to his former substantive position and rank, subjecting him to a detriment by allocating him demeaning work, and denying him the opportunity to access the benefit of being promoted to higher duties;

(ii) the Commissioner’s conduct constituted less favourable treatment than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who does not have that disability;

(iii) the Commissioner’s conduct was ‘on the ground of’ Mr Laycock’s disability in the sense that it was at least one of the reasons for that conduct: s 4A

Agreed facts

11 The Tribunal began its decision by noting that there were very few factual disputes. At [5] the Tribunal set out Mr Laycock’s claims which were not contested:

a) The applicant joined the NSW Police in 1990 as a probationary constable and at the time of lodging the complaint in 2003 he was a police officer with the rank of Detective Sergeant

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 the former 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.

12 It was also agreed that Mr Laycock’s back injury is a disability within the meaning of the AD Act and that as a result of that disability he was unable to undertake some activities in the course of his employment. One issue was whether those activities were duties of the relevant positions to which he sought appointment. We deal now with Mr Laycock’s grounds of appeal.

Indirect discrimination

13 Mr Laycock initially relied only on a complaint of direct discrimination as defined in s 49B(1)(a), but at the hearing he sought to amend his Points of Claim to include a complaint of indirect discrimination contrary to s 49B(1)(b). The Tribunal refused that application and explained its reasons for doing so at [40].

14 While it is not entirely clear whether or not Mr Laycock’s grounds of appeal challenge this finding, there was no breach of procedural fairness in the Tribunal refusing to allow him to amend his Points of Claim. The Tribunal noted that Mr Laycock was unable to provide the details of a claim of indirect discrimination, “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.” Furthermore, the Tribunal said that Mr Laycock had not provided any reasons for seeking to amend his claim at such a late stage.

15 The hearing rule of procedural fairness requires that a decision maker hear a person before making a decision affecting their interests: Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 at 73. One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding: Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821.

16 Even if Mr Laycock intended to appeal against the Tribunal’s decision not to allow him to amend his complaint to add a claim of indirect discrimination, the Tribunal did not deny Mr Laycock procedural fairness in refusing that application.

Refusal to allow Dr Hehir to give evidence by phone

17 Submissions. Mr Laycock included reports and certificates from Dr Hehir as attachments to his affidavit. The Commissioner did not object to those reports and did not require Dr Hehir to attend for cross-examination. At the hearing, Mr Laycock applied for Dr Hehir to give evidence by telephone. The Commissioner’s representative objected on the basis that if Dr Hehir was to give further evidence, it should not be by telephone. Further, the Commissioner’s representative said that she would want to show Dr Hehir certain documents in the course of cross-examination. As some of those documents were confidential, she said it would not be appropriate to provide them to Dr Hehir by facsimile.

18 Mr Laycock submitted that the Tribunal’s refusal to allow Dr Hehir to give evidence by telephone in order to clarify the medical evidence, was a breach of procedural fairness. He said that the Commissioner was on notice of the nature of Dr Hehir’s evidence from the Points of Claim and Mr Laycock’s affidavit. Mr Laycock also said that Dr Hehir refused to provide a statement or report for the hearing and the Tribunal then issued a summons for Dr Hehir’s attendance. Dr Hehir wrote to Mr Laycock saying that he would make himself available to give evidence by telephone only. Mr Laycock says that he was self-represented and did not know how to overcome the difficulties in relation to Dr Hehir giving evidence in person.

19 Tribunal’s reasoning. The Tribunal noted that Mr Laycock sought to lead evidence from his doctor, Dr John Hehir, by telephone. In relation to that application, the Tribunal said, at [18] that:

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.
20 Appeal Panel’s conclusion . In refusing to allow Dr Hehir to give evidence by phone, the Tribunal took into account the late notice of that application, the problems with providing confidential material by facsimile and the doubtful relevance of the evidence Dr Hehir would be providing. The Tribunal gave Mr Laycock an opportunity to apply for an adjournment in order to secure Dr Hehir’s attendance at the hearing, but he did not make that application. In all the circumstances, it was not a denial of procedural fairness for the Tribunal to refuse to allow Dr Hehir to give further evidence by telephone. He was given a reasonable opportunity to adduce evidence and make submissions.

Denial of promotion

21 Background. The first of the four categories into which the Tribunal classified Mr Laycock’s complaints was the denial of promotion in September 2002. There was no dispute that Mr Laycock applied for and was the nominated officer for the position of Investigations Manager at the Lake Illawarra Local Area Command (LAC). He claimed that he performed all duties and functions expected in the position between 3 February and 8 April. He said that his treating specialist, Dr J Hehir, placed him on restrictions not to engage in violent twisting and repetitive and heavy lifting. He also attended physiotherapy twice a week during work hours.

22 On 12 September 2002, Mr Laycock was placed on restricted duties by virtue of a medical report from the Police Medical Officer, Dr Tania Rogers, to Superintendent Hodsdon, the Commander of the Lake Illawarra LAC. Included in Dr Rogers report was a comment that she had discussed the matter with Dr Hehir and that he had told her 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.”

23 On 19 September 2002, soon after receiving this letter, Superintendent Hodsdon wrote to Mr Laycock saying that as he had been found not to be fit for full operational duties his promotion would not be proceeding. Superintendent Hodsdon added that:

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.
24 Tribunal’s findings of fact . After finding that the Commissioner was legally permitted to determine the duties of the position of Investigations Manager, the Tribunal went on to make a critical finding of fact at [51] in relation to the allegation about denial or promotion:
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.
25 The Tribunal also found, as a matter of fact, at [69] that the reason that Mr Laycock was denied promotion was “because of expert opinion that the applicant could not fulfil all of the duties of the job to which he wished to be promoted.”

26 Submissions. Mr Laycock disputed the Tribunal’s findings by saying that when Commander Hodsdon wrote that he was, “Not fit for full operational duty, hence not currently fit for promotion to Investigations Manager”, he was imposing an undefined medical standard in order to be promoted to the position. Mr Laycock said that the medical standard and the operational duties are not published but if an employee is unable to meet that standard the Commissioner imposes generic restrictions on the duties he or she is able to perform. The restrictions do not take into account the individual capabilities of the employee or the precise requirements of the position. He said that the Police Act does not authorise the imposition of such a standard and said that the contract he had with NSW Police did not involve compliance with an undefined medical standard in order to be promoted.

27 Mr Laycock referred to Coleman v Commissioner of Police, NSW Police [2001] NSWADT 34 and said that the Tribunal found in favour of the applicant in that case when the facts were identical to those in his case. Mr Laycock also submitted that the Tribunal had not taken into account evidence including evidence of the fact that he was promoted to the position of Detective Sergeant Team Leader in 2000 when he had the same disability as he currently has. He says he performed the full operational duties of his position from 1992 to 2000.

28 Appeal Panel’s conclusion. Mr Laycock conceded that ‘leading investigations in the field’ was a duty of the position to which he sought promotion however he contended that ‘physical confrontation with offenders’ is not a duty of the job. The Tribunal relied on the evidence of Dr Rogers to conclude that physical confrontation with offenders was a possibility when leading investigations in the field. Mr Laycock referred to evidence of a witness which he said, did not support the Tribunal’s finding. Even if such evidence was before the Tribunal, the Tribunal’s finding was open to it and there is no error of law. It is clear from Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 that even an allegation that a finding is ‘against the evidence and against the weight of evidence’ does not amount to a question of law. Mr Laycock disagreed with several of the Tribunal’s finding of fact, but that disagreement does not amount to an error of law. Our conclusion on this point disposes of Mr Laycock’s ground of appeal, nevertheless we will go on to deal with his submission about the imposition of a medical standard.

29 The present case can be distinguished from the facts and the findings of the Tribunal in Coleman v Commissioner of Police, NSW Police [2001] NSWADT 34, relied on by Mr Laycock. In that case, the Tribunal found that the Commissioner had imposed a blanket policy on Mr Coleman, a Senior Constable, without reference to the particular circumstances of the complaint. That policy as expressed at [41] of the decision, was “to classify every position in the police service as ‘operational’ and to require every successful applicant for promotion to meet an ‘operational’ medical standard.” Mr Laycock asserted that that is exactly what the Commissioner had done in his case.

30 While the facts in this case are similar to those in Coleman, there is one crucial difference. The Tribunal made a factual finding in the present case, that Mr Laycock could not perform all the aspects of at least one of the duties of the position of Investigations Manager. In Coleman, while the Commissioner asserted that Mr Coleman could not perform “active supervision, monitoring of delegations to other officers and training other officers”, the Tribunal made no finding to that effect. Instead the Tribunal concluded that the Commissioner had imposed a blanket medical standard and that that conduct constituted unlawful discrimination in the particular circumstances of that case. The Tribunal is not bound by its own decisions, but in any case, the findings of fact in Coleman were different from the findings in this case.

31 Mr Laycock also says that the Tribunal elevated the term ‘operational duties’ to that of an inherent requirement of the position. We disagree. The Tribunal did not make such a finding.

Reference to Workers Compensation proceedings

32 Finding of permanent impairment. The Tribunal went on to provide details of a report of Mr William Wolfenden which had been prepared in the context of workers compensation proceedings. The Tribunal then noted at [52] that:

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.
33 Submissions . Mr Laycock said that the judicial assessment by the Compensation Court of his physical limitations does not relate to his physical ability to perform any duty of the position of Investigations Manager.

34 Appeal Panel’s conclusion. The Tribunal found one of the duties of the Investigations Manager was to lead investigations in the field and that Mr Laycock could not perform activities which required physical confrontation with offenders. The assessment by the Compensation Court was not the basis for that finding, but it did support it. To that extent it was a relevant observation and the Tribunal did not err in referring to it.

Failure to examine risk

35 Submission. Mr Laycock submitted that the evidence presented to the Tribunal was incapable of justifying the finding that his disability posed a greater risk to himself, other police officers or the general public. According to Mr Laycock, the Tribunal’s decision failed to examine the risk to him or to other employees or members of the community.

36 Tribunal’s finding. The Tribunal found that the Commissioner was entitled to take into account when determining whether Mr Laycock should be promoted, whether there was a risk to either Mr Laycock’s safety or the safety of others. The Tribunal referred to the decisions in Purvis v State of NSW (2003) 217 CLR 92 and X v Commonwealth (1999) 200 CLR 177 in relation to the assessment of risk to safety. At [54] the Tribunal found that:

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.
37 The Tribunal concluded, on the basis of Dr Hehir’s report, that the Commissioner would have risked legal action from Mr Laycock if he had been injured while confronting an offender. Similarly, the Commissioner would have risked legal action from other police officers and members of the community if they had been injured due to Mr Laycock’s inability to deal with a violent offender because of his back injury.

38 Appeal Panel’s conclusion. The Tribunal accepted Dr Hehir’s evidence as to Mr Laycock’s capacity to conduct investigations in the field. That evidence, which included the opinion that he was not fit to handle confrontations with offenders, supported the Tribunal’s finding at [54] that “. . 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.” This finding assumes that Mr Laycock was placing himself, other officers and members of the community at risk of injury if he was involved in a confrontation with an offender. Given the nature of Mr Laycock’s disability and the medical evidence, that finding was open to the Tribunal. The Tribunal did not need further evidence about the nature or extent of that risk in order to conclude that it existed. The Tribunal then found that the heightened risk to safety meant that the Commissioner was susceptible to legal action from Mr Laycock, other officers and members of the community if it allowed him to occupy such a position. These are findings of fact that were open on the evidence and do not disclose an error of law.

Application of Cosma v Qantas Airways Limited [2002] FCA 640

39 Mr Laycock said that the Tribunal had misapplied the decision in Cosma v Qantas Airways Limited [2002] FCA 640. He did not say how the Tribunal had erred in its application of this decision, but we will briefly set out our understanding of the relevance of that decision and the reason that we can detect no error of law in the way the Tribunal applied it to the facts of this case.

40 There is a defence to a claim under s 49D(2)(c) in s 49D(4) – the so called ‘inherent requirements’ defence. As Mr Laycock was not relying on s 49D(2)(c), the inherent requirements defence did not apply to his complaint. Nevertheless, the Tribunal went into some detail as to the meaning of that provision at [59] – [61]. The Tribunal quoted from Cosma v Qantas Airways Limited [2002] FCA 640, a decision of Heerey J interpreting the equivalent provision in the Disability Discrimination Act 1992 (Cth).

41 The Tribunal referred to Cosma in two contexts. The first was at [60] where the Tribunal made the point that neither the inherent requirements defence, nor the substantive provisions in s 49D, require an employer to alter the nature or requirements of the particular employment in order to accommodate a person with a disability. The Tribunal did not misdirect itself in making that observation. Secondly, the Tribunal referred to Cosma when discussing the relationship between the requirement in workers’ compensation legislation to provide “suitable” employment and the provisions of anti-discrimination statutes. The Tribunal noted that the Full Court in Cosma rejected the employee’s attempts to create his own classification of employment. In the Tribunal’s view, that is exactly what Mr Laycock had attempted to do in this case. The Tribunal said at [67] that:

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.
42 The Tribunal’s reliance on Cosma related to this finding of fact. The Tribunal’s point was that, whether or not the inherent requirements defence applies, an employee is not entitled to create his or her own classification of employment. That conclusion was based on the Tribunal’s findings of fact. Disagreement with such a finding does not amount to a legal error.

Errors in Tribunal’s alternative conclusion

43 Background. After finding that the denial of promotion did not come within any of the provisions in s 49D(2), the Tribunal went on to say at [68] that even its reasoning was incorrect, there was a second reason why Mr Laycock’s claim that he was denied promotion does not constitute disability discrimination. That reason was that the Tribunal was 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.” The Tribunal relied on the decision in Purvis v State of NSW (2003) 217 CLR 92 at 160-1 for its conclusion that when comparing the way a person with a disability was treated with the way in which a person without a disability was or would have been treated, the circumstances “are all of the objective features which surround the actual or intended treatment of the disabled person . . .”

44 Submissions. Mr Laycock submitted that the Tribunal had misdirected itself in relation to the principles in Purvis v State of NSW (2003) 217 CLR 92. He agrees that the High Court in that case sets out the principles that the Tribunal should apply when comparing the treatment afforded to a person with a disability with the treatment that was or would have been afforded to a person without that disability. However, Mr Laycock says that other applicants without a disability who applied for the same rank and job description at the same time, were promoted to those positions.

45 Appeal Panel’s conclusion. The High Court in Purvis was concerned, in part, with the identifying the circumstances to be taken into account when comparing the treatment of fellow employees. In this case one of those circumstances was the finding of fact that Mr Laycock could not perform all the duties of the position. The point the Tribunal was making was that the Commissioner would have treated an employee without Mr Laycock’s disability, and who could not perform one or more of the duties of the position, in the same way that Mr Laycock was treated. We agree with the Tribunal’s analysis and application of Purvis and can detect no error of law in relation to those findings.

Denial of transfer to substantive position and rank

46 Background. The second category of complaints made by Mr Laycock was that he was denied a transfer to his previous “substantive rank and position of Detective Sergeant Team Leader” at Burwood after he left the Lake Illawarra LAC on 26 September 2002. Mr Laycock said that this conduct constituted discrimination on the ground of disability in relation to the terms and conditions of employment, by denying him a transfer and by subjecting him to a detriment: s 49(2)(a), (b) and (d).

47 The Tribunal agreed with the submission of the Commissioner that these allegations were essentially an industrial matter in relation to the operation of an agreement provided for under the former s 66 of the Police Act 1990, rather than a claim of disability discrimination. The Tribunal set out the terms of the agreement between the Commissioner and Mr Laycock which, essentially, were that he would be “placed into a position at my current substantive rank, at Burwood LAC.” Despite Mr Laycock’s expectation that he would be returned to his former position at Burwood, the Tribunal found that the agreement merely provided for him to be returned to a position at Burwood at his current substantive rank, which was that of Sergeant. Since Mr Laycock did return to a position at Burwood at that rank, the Tribunal was satisfied that the agreement had been honoured. The Tribunal concluded at [78] that:

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.
48 Failure to take into account all allegations. Mr Laycock submitted that despite the fact that he made three allegations in relation to the denial of a transfer, the Tribunal dealt only with the second of those allegations. According to Mr Laycock, the three allegations were:
1) the initial denial of any transfer or return to Burwood LAC

2) denial of a transfer to the previously held position of Detective Sergeant Team Leader

3) denial of transfer to an available position of Detective Sergeant Team Leader when vacant.

49 Mr Laycock also alleged that the Tribunal erred by disposing of all three allegations by reference to the relocation agreement made under the former s 66 of the Police Act . Mr Laycock says that the only act of the Commissioner to which the former s 66 applies is the decision to transfer him to Burwood LAC when his promotion was denied. He says that the former s 66 has no application to subsequent opportunities for promotion which arose after he returned to Burwood LAC.

50 Initial denial of transfer. Mr Laycock says that the Tribunal failed to consider his allegation that he did not return to the Burwood LAC until 16 October 2002 even though he had spoken to the Commander, Acting Superintendent Gilroy, on 25 September 2002 about his proposed return. He says that the three week delay in relocating him to Burwood was because of his disability. It is apparent that the Tribunal was well aware of Mr Laycock’s claim about the delay in transferring him to Burwood. The Tribunal noted at [29] that

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.
51 After setting out the law, including relevant provisions of the Police Act 1990 , the Tribunal said at [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.
52 Appeal Panel’s conclusion . It is apparent from reading the decision as a whole that the Tribunal did not view the delay in Mr Laycock returning to Burwood as one of the key events in Mr Laycock’s complaint. The Tribunal divided the complaints into five broad categories and dealt with those categories in detail. The Tribunal proceeded to deal collectively with Mr Laycock’s complaints regarding his return to Burwood LAC and the fact that he remained in a position at his substantive rank, at [71] to [78] of the reasons. At [73] the Tribunal accepted a submission from the Commissioner’s representative that Mr Laycock’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.

53 The delay in returning to Burwood arose because of a dispute about the position Mr Laycock would occupy on his return. That dispute concerned the interpretation of the s 66 agreement. As the Tribunal noted at [74] "[t]he applicant's evidence and submissions demonstrate that he did not properly understand the operation of the former s 66 of the Police Act." While not separately addressing the allegation about the delay in being returned to Burwood, the Tribunal viewed that part of Mr Laycock’s complaint to be subsumed in its findings about the effect of the s 66 agreement. In our view, the Tribunal did not err by declining to deal with this allegation as a discrete act of discrimination or by regarding it as being regulated by the s 66 agreement.

54 The Tribunal’s conclusion about whether the conduct as a whole constitutes discrimination is set out at [78]:

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.
55 Denial of transfer to a vacant position . Mr Laycock also submitted that the Tribunal overlooked the allegation that he was not transferred into any vacant team leader position at Burwood when those positions became vacant. It is not clear from Mr Laycock’s submissions whether he applied to be transferred to any of those positions. If he did not apply, then there is no relevant “treatment” of him that would come within the provisions of s 49D(2). If he did apply, or express interest, and that application was refused, the refusal would have been based on the fact that the position required him to perform duties which he was medically unfit to perform. In that case, the Tribunal’s reasoning in relation to other positions which he was medically unfit to perform, would also apply to vacant team leader positions. It is similar, for example, to Mr Laycock’s complaint about not being allocated higher duties. In relation to the higher duties, the Tribunal said that s 49D(2) of the Act does not give Mr Laycock an entitlement to be transferred to vacant positions while the medical restrictions remained in place concerning the duties that he could fulfil.

Detriment with respect to work allocation

56 The third category of allegations was that Mr Laycock suffered detriment in respect of the work he was allocated on his return to Burwood.

57 Mr Laycock submitted the Tribunal’s decision wrongly infers that Dr Hehir imposed the work restrictions, when in fact the restrictions were imposed and enforced by the Commander of the LAC on the recommendation of the Police Medical Officer. At [81] the Tribunal said that:

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.
58 This is a finding of fact and the Tribunal made no error of law in reaching it.

Compliance with Workers Compensation Act is not determinative

59 Next, Mr Laycock submitted that the Tribunal misinterpreted the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 and wrongly applied that legislation to the facts of this case. The only explanation Mr Laycock gave of this ground of appeal was that compliance with the Workers Compensation Act does not mean that the AD Act does not apply.

60 The Tribunal set out in detail at [63] and [70] the interrelationship between discrimination legislation and workers compensation legislation. We agree with the Commissioner’s representative that it is not apparent that the Tribunal's reasons with respect to allocation of work made any reference to section 8(3) of the Workplace Injury Management and Workers Compensation Act, section 10 of the Police Act and the Safety, Rehabilitation and Compensation Act or required any consideration of those sections. Furthermore, at no point did the Tribunal say that compliance with workers compensation legislation means that there can be no breach of the AD Act.

Denial of higher duties during the second identified period

61 The fourth category of allegations was that the Commander of Burwood LAC refused to allocate Mr Laycock higher duties between 7 September 2003 and 7 March 2004 because of disability. The Tribunal addressed this issue at paragraphs [84] –[88] of the decision.

62 Mr Laycock relied on the same grounds of appeal in relation to this part of his complaint as he did in relation to the allegations about the failure to promote him. For the same reasons as we gave in relation to that ground of appeal above, we reject this ground of appeal.

Breach of procedural fairness

63 Mr Laycock submitted that the Tribunal had not given him sufficient time to examine material produced under summons by the Commissioner. He said that documents produced by NSW Police, Dr Hehir and Government Insurance Office were not made available for the purpose of examination except daily after the hearing. He said that although he had access to the documents, he did not know how to deal with them. He said that the effect of this was that he did not tender critical evidence, in particular a report of Dr Crouch.

64 There is no doubt that it is difficult for unrepresented parties to quickly identify the significance of documents produced under summons. Mr Laycock may have been in a better position to do so had he had more time. Nevertheless, he issued the summons and it was his responsibility to decide whether or not to rely on any of the documents that were produced. It was not the fault of the Tribunal that he had limited time in which to do so. In fact, the Tribunal adjourned at 3 pm in order to allow Mr Laycock to view the documents. Mr Laycock has not challenged any of the restrictions the Tribunal placed on his access to the documents, rather he was at a loss to know what to do with the documents. While that is unfortunate, he was given a reasonable opportunity to adduce evidence. In all the circumstances, the Tribunal did not breach the rules of procedural fairness.

Extension to the merits

65 Mr Laycock requested the Appeal Panel’s leave for the appeal to be extended to a review of the merits of the appealable decision. He said that the Tribunal did not take into account some of Dr Hehir’s reports and that he was not able to tender other medical evidence that was produced under summons. He also contested many of the findings of fact made by the Tribunal.

66 The Supreme Court has provided some guidance in relation to matters which are relevant to the exercise of a discretion to extend an appeal to the merits: K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act 1987 which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K , Young J observed at [10] that ‘it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67’, but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
67 S v S [2001] NSWSC 146 (9 March 2001) involved an application for leave to appeal against a decision of the Guardianship Tribunal in relation to the appointment of a financial manager. Young J was of the view that, even in the parens patriae jurisdiction, the court should not interfere with the decision of the primary fact-finding tribunal unless there is an error in the process leading to the decision or the decision is clearly wrong. In Obradovic v Commissioner for Fair Trading, Office of Fair Trading (No 2) (GD) [2006] NSWADTAP 45 (15 August 2006) the Appeal Panel quoted Ritchie’s Uniform Civil Procedure NSW which notes at 15,704, that an objective of leave provisions is ‘to operate as a filter restricting access to the appeal procedure and thereby promote the efficiency of the court’s appeal procedure and their availability for appropriate matters’. The Appeal Panel went on to say one approach to determining whether leave should be granted is to ask whether any ‘substantial injustice’ might arise if an extension of the appeal to the merits was not permitted.

68 Mr Laycock disagreed with many of the Tribunal’s findings but the Tribunal did not go about its fact finding process in an unfair or unorthodox manner. Both parties were given a reasonable opportunity to present their evidence and the Tribunal’s findings were open to it on the basis of that evidence. Mr Laycock’s failure to procure the attendance of Dr Hehir and his inability to quickly identify the relevance of documents produced under summons was not the fault of the Tribunal and does not justify re-visiting the merits of the Tribunal’s decision.

Costs

69 There was no application for costs by either party.

Orders

1. Leave is refused to extend the appeal to the merits of the Tribunal’s decision.

2. Appeal dismissed