Lipman v Commissioner of Police

[2015] NSWCATAD 250

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Lipman v Commissioner of Police [2015] NSWCATAD 250
Hearing dates:	27 April 2015 to 4 May 2015 and 7 May 2015
Date of orders:	01 December 2015
Decision date:	01 December 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Lucy, Senior Member J Goodman-Delahunty, General Member A Limbury, General Member
Decision:	1. The applicant’s complaints of discrimination and victimisation are dismissed. 2. Any application for costs is to be made within 28 days of the date of this decision. 3. Following any application for costs, the Registrar is to list the matter for directions for the purposes of setting a timetable to allow each party an opportunity to make submissions as to costs.
Catchwords:	ANTI-DISCRIMINATION – Carers responsibilities – Discrimination in employment – Promotional opportunity advertised on full-time basis – Position accepted on full-time basis prior to negotiations for part-time work agreement – Offer of part-time work agreement required employee to work more hours than carers responsibilities allowed her to work - Whether a term of an employee’s prospective employment is a term or condition of employment afforded to her – Whether employee’s access to promotional opportunities limited or denied by requirement that she work more hours than she was able to work DIRECT DISCRIMINATION – Less favourable treatment - Identification of hypothetical comparator – Whether comparator is officer with no carer’s responsibilities who requires a part-time work agreement – Whether characteristics extension may be taken into account for purpose of comparison INDIRECT DISCRIMINATION – Whether systemic discrimination formed part of applicant’s complaint to Anti-Discrimination Board – Consequences of applicant’s failure to plead substantive provision to support her claim of indirect discrimination – Whether parties conducted case on different basis from pleadings – Whether respondent required applicant to comply with a requirement or condition JUDICIAL NOTICE – Circumstances in which tribunal is entitled to take judicial notice of a fact – Whether tribunal entitled to take judicial notice of the proposition that the need to be absent from employment to provide care is a characteristic appertaining to a person with carer’s responsibilities VICTIMISATION – Whether employee subjected to a detriment -- Whether part-time work offer was a sham – Whether any detriment to which the applicant was subjected was imposed on her on the grounds of her discrimination complaints
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Police Act 1990 (NSW) Police Regulation 2008 (NSW) Courts and Other Miscellaneous Legislation Amendment Act 2013 (NSW) Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth)
Cases Cited:	Wright v Commissioner of Police [2014] NSWCATAD 16 Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAP 67 Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 New South Wales v Amery (2006) 230 CLR 174 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Kelly v TPG Internet Pty Ltd (2003) 176 FLR 214 Coleman v Commissioner of Police, New South Wales Police Service [2001] NSWADT 34 Waters v Public Transport Corporation (1991) 173 CLR 349 Reddy v International Cargo Express [2004] NSWADT 218 Howe v Qantas Airways Ltd [2004] FMCA 242 State of New South Wales (NSW Police Force) v Whitfield [2012] NSWADTAP 27 Walker v State of New South Wales [2003] NSWADT 13 Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 Thomas v Mowbray (2007) 233 CLR 307 Correy v St Joseph's Hospital Ltd [2007] NSWADT 104 Stokes v Serco Sodexho Defence Services Pty Ltd [2006] NSWADT 295 Purvis v State of New South Wales (2003) 217 CLR 92 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Commissioner of Police, NSW Police Force v Butcher [2011] NSWADTAP 9 Salama v Qantas Airways Ltd [2002] NSWADT 119 Whiteoak v New South Wales [2014] NSWCATAD 45 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Bogie v The University of Western Sydney (1990) EOC 92-313 Burns v Sunol [2014] NSWCATAD 62 Burns v Sunol [2014] NSWCATAD 2 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Secretary for Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 2211 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 Edwards v Hillier & Educang Ltd t/as Forest Lake College (2006) EOC 93-446; [2006] QADT 34 Dubow v Attorney-General’s Department [2005] NSWADT 231 Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 Mitchell v Clayton Utz [2009] NSWADT 266 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Category:	Principal judgment
Parties:	Riannan Lipman (Applicant) Commissioner of Police (Respondent)
Representation:	Counsel: C Ronalds SC and A Howell (Applicant) K Eastman SC and A Sathanapally (Respondent)     Solicitors: Police Association of New South Wales (Applicant) Norton Rose Fulbright Australia (Respondent)
File Number(s):	1310125

Reasons for Decision

J LUCY, Senior Member:

1. The applicant is a Leading Senior Constable in the New South Wales Police Force and the mother of three young children. In 2013, she applied for promotion to the rank of sergeant. Promotional positions in the New South Wales Police Force were, in 2013, advertised on a full-time basis as a matter of policy.

2. On two occasions in 2013, the applicant was offered a promotion to the rank of sergeant at a particular Local Area Command, but on both occasions she was unable to negotiate a part-time work agreement with the Local Area Commander that allowed her to meet her carer’s responsibilities. On the second occasion, the Commander responsible for determining whether to offer her a part-time work arrangement and, if so, on what terms, was aware that she had complained to the Anti-Discrimination Board (“ADB”) about her treatment on the first occasion.

3. The issues in these proceedings are whether the Commissioner of Police (“Commissioner”) directly or indirectly discriminated against the applicant on the grounds of her carer’s responsibilities and whether the applicant was victimised as a result of having made a complaint of discrimination to the ADB.

PROMOTIONS SYSTEM

4. It is convenient to set out at the outset the system operating at the relevant times in the NSW Police Force for promotion from the rank of constable to the rank of sergeant. The Police Act 1990 (NSW) and the Police Regulation 2008 (NSW) make provision for the promotion of officers including to the rank of sergeant. The New South Wales Police Force also has policies governing the promotion of police officers.

5. The Commissioner is to establish promotion lists of police officers eligible for promotion to the rank of sergeant (Police Act, s 70(1)). In deciding to appoint a person by way of promotion to a vacant position of a non-executive police officer (including that of a sergeant), the Commissioner must appoint a person from the promotion list for the rank concerned who is available for appointment and who has the greatest merit according to rankings on the list (Police Act, s 66(4)).

6. A person is not eligible to be appointed to a position of the rank of sergeant unless, relevantly, the person is on a sergeants promotion list that is in force when the appointment is made (Police Regulation, cl 19(1)). Eligibility criteria for a person to be placed on a promotion list (including the sergeants promotion list) include having obtained a satisfactory mark in the pre-qualifying assessment for that rank and having completed the promotion examination, and the management performance review, for that rank, within the last three years (Police Regulation, cl 25(2)).

7. Persons placed on a promotion list are to be ranked on that list in order according to the eligibility mark of each person (Police Regulation, cl 27(1)).

8. A person on a promotion list who is offered an appointment to the rank of sergeant is taken to have refused the offer if he or she fails to accept the appointment within 72 hours of the offer being made, or within such longer period as the Commissioner may allow in a particular case (Police Regulation, cl 28).

9. A sergeants promotion list remains current for the period of 12 months after it is established or until all persons on the list have been removed from the list, whichever occurs first (Police Regulation, cl 30(1)).

10. The promotion process is also governed by a policy the first page of which is headed “Overview of the Police Promotion Process” and which states that it was updated in March 2013. This document is known as the “Business Rules.” It provides in cl 1 as follows:

“All vacancies for all ranks advertised to the Promotion Lists are full-time positions unless otherwise indicated. Positions occupied by a part-time officer cannot be offered for promotion to fill the residual hours.”

11. It also provides in cl 7, that “[a]ll vacancies advertised to the Promotion List (all ranks) are full-time positions.”

12. The Business Rules provide that, once an officer is identified as the person who has the greatest merit according to the rankings on a promotion list, the person is contacted to be given a condition offer of promotion (cl 7). The offer is conditional upon integrity and medical clearances being obtained (see also Police Act, s 71).

13. The Tribunal heard evidence that, in order to fill promotional vacancies to the rank of Sergeant, the Commissioner internally publishes a list of vacant promotional positions for the rank of Sergeant each month (“the Sergeant Vacancy List”). A copy of the Sergeant Vacancy List is sent to officers on the current promotions list. Officers on the current Sergeant Promotions List then have two weeks to apply for a vacancy on the list.

14. Only candidates on the relevant promotions list are entitled to apply for an advertised position. They can nominate for as many advertised positions as they wish, but a vacancy is only offered once per round to each officer. Candidates nominate their order of preference for each position.

15. Each of the monthly Sergeant Vacancy Lists published over 2012 and 2013 included the following statement:

“Unless otherwise stated, all vacancies are full time positions and appointment is on a full time basis”.

16. An officer may be able to negotiate a part time work agreement with a Commander upon promotion, but the officer must first secure the promotion.

RELEVANT AWARDS AND POLICIES

17. The Crown Employees (Police Officers) State Award 2009 (“2009 Award”), which applied to the applicant at all relevant times, provided, in cl 14.1:

“Officers may be employed on a part time basis for a period of less than 38 hours per week under guidelines agreed by the parties. While 10 hours per fortnight is generally regarded as a reasonable minimum, the Commissioner may approve a lesser minimum where it is necessary for the officer to work fewer hours per fortnight.”

18. The NSW Police Force Carers’ Responsibilities Guidelines set out some of the legal obligations placed upon an employer under the Anti-Discrimination Act 1977 (NSW) (“AD Act”) in respect of a person with carer’s responsibilities and also set out employees’ responsibilities. In the Overview to those guidelines, it is stated:

“The central feature of the carers’ responsibilities discrimination law is that work arrangements need to be as flexible as possible. This means that NSW Police may need to provide extra or special arrangements to assist employees to meet their carers’ responsibilities if it is reasonable in all the circumstances to do so.”

19. The guidelines contemplate that employees can negotiate “extra or special work arrangements” with their Commander by completing a form and providing limited proof of their carers’ responsibilities. They set out matters to which a Commander or manager should have regard when considering a request for extra or special workplace arrangements and provide for the review of a decision to refuse a request.

20. The Part Time Work for Police Officers Policy and Guidelines (published in 2005 and reviewed in March 2013) (“Part Time Work Policy”) provide, in clause 4.1, that the availability of part time work is subject to NSW Police requirements. The policy contemplates the possibility of job sharing, and states in clause 7.1 that “Commanders and Managers are able to increase the occupancy of any single authorised position up to (but not including) the equivalent of two full time officers. That is, a percentage less than 200%.” However, this may only occur “where the total occupancy of all authorised positions does not exceed 100% of the location’s cost centre allocation” (cl 7.2).

21. The Part Time Work Policy also contemplates that an officer may work reduced hours without job sharing.

FACTUAL BACKGROUND

22. After taking maternity leave following the birth of her first child, the applicant returned to work in October 2009 on a part time work arrangement. The applicant gave birth to twins in 2010 and took maternity leave again, returning to work on a part time work arrangement in 2011.

23. On 18 September 2011, the applicant commenced working in a part-time work arrangement as a Senior Constable in a general duties position at the Harbourside Local Area Command (“LAC”). Under this arrangement, she was required to work 120 hours every six weeks in ten twelve-hour shifts. The normal full-time work load is 38 hours per week, or 228 hours over a six week roster block, which in general duties is typically worked as nineteen twelve-hour shifts.

24. The applicant’s husband is also a member of the NSW Police Force and works full-time. During 2013, both the applicant and her husband were working at Harbourside LAC. They worked their rosters so as to ensure that there was always someone at home to look after the children.

25. During 2011, the applicant undertook the elements of the promotions process, with a view to being eligible for inclusion on the Sergeants Promotions List for 2012.

26. On 22 May 2012, the applicant was appointed to a position as a Leading Senior Constable in the NSW Police Force.

27. In September 2012, the applicant was included on the Sergeants Promotions List. After her inclusion on that list, she began nominating for positions on the monthly Sergeant Vacancy Lists.

28. On 27 March 2013, the applicant was advised that she was the highest ranking officer on the Sergeant Promotions List for the position of General Duties Supervisor (Local Area Command) at Rosehill LAC. This position is commonly referred to as that of Team Leader.

29. On 2 April 2013, the applicant signed the Position Acceptance Form. This included an acknowledgement that she was:

“aware that upon accepting this position I will not be considered for identification to any other position at the same rank and maximum salary regardless of duty type, and I will be removed from the Promotions List for that rank. I understand that appointment to the position will be subject to relevant satisfactory clearances.”

30. On 5 April 2013, the Human Resources Duty Officer (“HRDO”) at the Harbourside LAC emailed the Rosehill HRDO, Inspector Tara Norton, informing her that the applicant was currently working on a part-time work agreement and attaching a copy of that agreement.

31. An HRDO occupies a senior position in a LAC. An HRDO is an inspector responsible for human resources and related matters including the negotiation of transfers and part-time work agreements and overseeing the rostering of shifts.

32. On 9 April 2013, the Appointments and Performance Review Unit in the NSW Police Force emailed the Commander at Rosehill, Superintendent Whyte, informing him that the applicant was currently on a part-time work agreement, working 20 hours a week, and suggesting that the Commander may wish to negotiate a part-time work agreement with the applicant.

33. Some time in early April 2013, the applicant telephoned Inspector Norton and they discussed the applicant coming to the Rosehill LAC to meet the Commander for the purposes of negotiating a part-time work agreement. There is conflicting evidence about what was said in that conversation. The applicant says that Inspector Norton told her that the command could consider twelve twelve-hour shifts per roster period, but Inspector Norton denies that she said this.

34. On 16 April 2013, the applicant met with Inspector Norton and Superintendent Whyte at the Rosehill LAC. They had a discussion about the applicant’s carer responsibilities, the number of shifts the applicant was able to work, the needs of the Rosehill LAC and the number of shifts the Commander was prepared to offer her. The applicant proposed working ten twelve-hour shifts per roster period. There is conflict about what occurred at the meeting, but the evidence indicates that Superintendent Whyte either said that he could offer the applicant twelve twelve-hour shifts per roster or that he could offer her fourteen twelve-hour shifts per roster.

35. Following the meeting with the applicant and on the same day, Inspector Norton considered options which the Rosehill LAC could offer the applicant then had another meeting with Inspector Whyte. At that meeting, Inspector Norton and Superintendent Whyte agreed that the minimum which the Rosehill LAC could accommodate was fourteen twelve-hour shifts per roster cycle.

36. Later on the day of the meeting, Inspector Norton telephoned the applicant and told her that Superintendent Whyte was prepared to offer her a part-time work agreement of fourteen twelve-hour shifts per roster.

37. Immediately after the telephone call, the applicant contacted the Promotions Unit, Industrial Relations and Workplace Equity, to discuss her position.

38. Later that evening, the applicant emailed Superintendent Whyte, copying in Inspector Norton, outlining a proposal for a part-time work agreement which involved her working ten twelve-hour shifts per six week roster. She also proposed that there might be some liaison between the roster clerks at Rosehill LAC and Harbourside LAC to ensure that her roster and her husband’s roster were “balanced.”

39. On 17 April 2013, Superintendent Whyte replied to the email, reiterating that the position had been advertised as a full-time position, that he was prepared to consider her working fourteen twelve-hour shifts per roster but that he was operationally unable to accommodate a Team Leader position on 20 hours per week. He also indicated that the management of the roster cycle at Rosehill LAC with the applicant’s husband’s roster cycle could be difficult.

40. On 19 April 2013, the applicant emailed Superintendent Whyte indicating that she could not work fourteen twelve-hour shifts as a result of her carer’s responsibilities. She proposed instead twelve twelve-hour shifts or set shifts with reduced hours.

41. On 22 April 2013, Superintendent Whyte emailed the applicant, saying he had reviewed her proposal in discussion with Inspector Norton and that he was unable to support twelve shifts per six week roster and was unable to sustain anything less than fourteen twelve-hour shifts per six week roster period.

42. Following receipt of Superintendent Whyte’s email, the applicant called the NSW Police Force Equity Unit and spoke to Acting Inspector Kellie Langley (as she then was). Inspector Langley told the applicant that she would arrange a meeting with Superintendent Whyte. She then arranged the meeting for the following day.

43. On 23 April 2013, a meeting took place between the applicant, a support person, Superintendent Whyte, another officer from the Rosehill LAC, Inspector Langley, and a representative from each of the Industrial Relations section and the NSWPF Policy Unit. Immediately prior to that meeting, the representative of the Workplace Equity Unit met with Superintendent Whyte and the Rosehill HRDO. Inspector Langley’s evidence is that the purpose of that meeting was to ascertain the capacity of Superintendent Whyte’s command to have a sergeant team leader working part-time.

30. There is conflicting evidence as to what occurred at the meeting involving the applicant. The applicant’s evidence is that Inspector Langley told her, early in the meeting, that she had heard from Inspector Whyte and that, if the applicant could not meet his requests, she would have to withdraw from the position. Inspector Langley’s evidence is that she said to the applicant that, after speaking to Superintendent Whyte, it appeared he had gone through every possibility in respect of the hours the applicant was requesting, but the Command could not accommodate her request from an operational perspective. A contemporaneous file note written by Inspector Langley is consistent with this and also records that the applicant stated at the end of the meeting that she would speak with Inspector Tony Wallace, an inspector in the Appointments Unit, about potentially withdrawing from the position without penalty and considering other positions from the promotions list.

31. There does not appear to be a dispute that, at that meeting, Superintendent Whyte maintained that the minimum number of shifts he could accommodate was fourteen twelve-hour shifts over a six week roster, and that the applicant maintained that she was unable to undertake more than twelve twelve-hour shifts.

32. On 24 April 2013, the applicant lodged a complaint with the ADB of unlawful discrimination on the grounds of her responsibilities as a carer, concerning her application for a position at Rosehill LAC (“First Complaint”).

33. On 30 April 2013, the applicant emailed Inspector Wallace and relinquished the Rosehill position. She stated in that email that she had “been forced to withdraw” from the promotional position “as Rosehill LAC is unable to accommodate my carers responsibilities.”

34. On 1 May 2013, the ADB notified the General Counsel, NSW Police Force of the complaint.

35. On 2 May 2013, Superintendent Whyte addressed a meeting of the senior officers within the South West Metropolitan Region at which the Commander of the Campsie LAC, Superintendent McLean, was present. Superintendent Whyte spoke about the offer to a constable of a sergeant’s position at Rosehill, the circumstances in which she declined it, and her making of a complaint about it.

36. Superintendent McLean provided written evidence that he recalled that Superintendent Whyte had “informed the attendees of the difficulties he had faced in negotiating a part-time work agreement and that, as a result of those difficulties, a complaint had been made.” Under cross examination, Superintendent McLean said that it was not his evidence that Superintendent Whyte used the words “difficulties” or “complaint” but that he was reporting his own interpretation of what Superintendent Whyte had said. Superintendent McLean also said that he had understood Superintendent Whyte to be saying that the candidate for the Rosehill position had made a complaint to the ADB.

37. On the morning of 28 May 2013, Inspector Tony Wallace of the Appointments Unit wrote an email to Superintendent McLean advising him that the applicant was the highest ranking candidate for the Campsie position. The email contained the following words:

“Last month she was the highest candidate for a position of GD [General Duties] Supervisor at Rosehill LAC but was unable to take up the position as she is part-time and wasn’t prepared to work more than 12 shifts per six week

roster.

All positions are advertised as full-time only, including your GD Supervisor. The Part Time for Police Officers Policy clearly states:

4.1 The availability of part time work is subject to NSW Police Requirements.

Please advise whether her part-time hours are acceptable to you before we make a conditional offer to her…”

52. Superintendent McLean gave evidence that he knew that the applicant had made a complaint in relation to Rosehill LAC at the time he received that email.

53. About ten minutes later, Superintendent McLean replied to Inspector Wallace by email as follows:

“No mate, must be full-time.

I can expand if needs be, but I would believe that the position that

Rosehill LAC put forward would be much the same as what I would.”

54. Superintendent McLean then telephoned Chief Inspector Maxwell, the Region’s Human Resources officer, to tell him about the email from Inspector Wallace. Chief Inspector Maxwell confirmed that the applicant was “the one from Rosehill”.

55. Superintendent McLean also forwarded Inspector Wallace’s email to Chief Inspector Maxwell, writing:

“You might want to let the boss know this is in the wind. As I understand this is the officer who has put Scott Whyte through hell at Rosehill regarding part time work. I have indicated to Tony Wallace that my position must be filled by a full time officer and he is going to indicate that to her before making a formal offer. Hopefully we will be able to go to the next person on the list after that. I will advise if this becomes an issue.”

56. By “the boss,” Superintendent McLean was referring to Assistant Commissioner Mennilli. Assistant Commissioner Mennilli is the Region Commander and the person to whom Superintendent McLean reports. Chief Inspector Maxwell was located in the regional office with Assistant Commissioner Mennilli, but was Superintendent McLean’s subordinate.

57. Around the same time, Inspector Wallace telephoned the applicant and told her that she was the highest ranking candidate for the position of General Duties Supervisor at Campsie LAC. The applicant gave evidence that Inspector Wallace told her that Superintendent McLean had told him that her name had been mentioned at a Region meeting and that, unless she was prepared to change her position, he would give the job to the next applicant. The evidence of Superintendent McLean and Superintendent Whyte was, however, that her name had not been mentioned at that meeting.

58. Inspector Wallace then sent Superintendent McLean an email, stating:

“I just spoke to [the applicant] and informed her there was no point in offering her the position as the result will only be the same as occurred at Rosehill LAC last month.

She asked your name and asked for a short time to consider her position, so she may well contact you.

We are still in a position to proceed with a second offer later in the week.”

59. Chief Inspector Maxwell sent an email to Superintendent McLean on 28 May 2013 in the early afternoon, as follows:

“Mr Mennilli – See below FYI

Mr McLean – Do not accept this officer. The Region is in the Anti-Discrimination Tribunal at the moment over the Rosehill issue … The Region Commanders view, is that the position is advertised as a full time position and should be filled as such”.

60. Superintendent McLean’s evidence was that he did not take direction from Chief Inspector Maxwell nor did he consider that his advice was binding in any way. Under cross examination, Superintendent McLean said that, at this time, on 28 May 2013, he “had formed a view on the basis that the job was advertised on a fulltime basis, that I was within my rights to be able to follow that process and have the position filled on a fulltime basis.”

61. The following morning, on 29 May 2013, the applicant emailed Inspector Wallace, setting out her account of their telephone conversation the day before and saying that she believed that the promotion should be offered to her on SAP (an electronic system used by the Police for offering positions) so that she had an opportunity to consider the position and, if necessary, begin negotiations with the Commander.

62. Inspector Wallace replied shortly afterwards, indicating that the offer would be loaded on to SAP, inviting her to contact Superintendent McLean and assuring her that the Commander was willing to negotiate a part-time work agreement if such an arrangement was possible.

63. A couple of hours later, the applicant telephoned Superintendent McLean and they had a conversation about the possibility of negotiating a part-time work agreement. The applicant gave evidence that Superintendent McLean told her that he wanted the position filled full-time and the Superintendent acknowledged that he told the applicant that it was his preference to have the position filled on a full-time basis. The applicant also said that Superintendent McLean had told her that he had “the backing of the Region Commander to have a full time officer in the position.” In cross examination, Superintendent McLean denied he said those words, and stated that he had told the applicant that the region supported his position that it was preferable that the position was filled on a fulltime basis. A contemporaneous file note made by Superintendent McLean indicates that he had explained to the applicant that he “had a supporting view at region that the job be filled on a fulltime basis”.

64. Both Superintendent McLean and the applicant recall that, after Superintendent McLean told the applicant he wanted a full time officer in the position, she said words to the effect of “Sir, I can appreciate you are running a command, but where does the line get drawn between running a command and discrimination?”

65. Later on 29 May 2013, the applicant received an email from the Promotions Unit offering her the Campsie Position and also received the offer through the SAP system. The applicant accepted the offer through the SAP system that day.

66. In the afternoon of 29 May 2013, the applicant emailed Superintendent McLean to inform him that she had accepted the promotion and that she was seeking to negotiate a part-time work agreement with him. The email set out her circumstances and proposed that she worked ten twelve-hour shifts per week.

67. At about 4pm on 29 May 2013, Chief Inspector Maxwell emailed Inspector Wallace, copying in Superintendent McLean and Assistant Commissioner Mennilli, asking him to explain how and why the applicant was offered the position at Campsie.

68. At about the same time, Chief Inspector Maxwell emailed Superintendent McLean, copying in Assistant Commissioner Mennilli, forwarding an email from Superintendent Whyte to the applicant, with the words “As discussed - see below – frame your response similar to Superintendent Whyte.”

69. The following day, 30 May 2013, Inspector Wallace replied to Chief Inspector Maxwell’s email, copying in Superintendent McLean, Assistant Commissioner Mennilli and Superintendent Clark, explaining that they had “no choice” but to offer the applicant the position, as the highest ranking candidate, and allow her to negotiate with Superintendent McLean about a part-time work agreement. He also said that “whether or not part-time work is possible is exclusively a matter for the commander.”

70. Superintendent McLean replied on the same day, copying in Inspector Wallace (but not Assistant Commissioner Mennilli or Superintendent Clark), stating that “it is clear that we have to confront this issue head on, that is important to ensure that this does not become a systemic issue. I will maintain a position, which differs slightly from Superintendent Whyte, in that I cannot entertain any part time arrangement in respect to this officer.”

71. On the same day, Superintendent McLean replied to an email from Acting Inspector Kellie Langley, Senior Coordinator of the Workplace Relations and Equity Unit, copying in Chief Inspector Maxwell and Inspector Wallace, informing Acting Inspector Langley that “I cannot have a part time officer in this role and that is the stance I will maintain.”

72. Superintendent McLean said in cross examination that he formed a view, after reading the emails from Chief Inspector Maxwell and Inspector Wallace on 30 May 2013, that “the advice of Inspector Wallace and the advice of Chief Inspector Maxwell was inherently erroneous and at that point in time I made a decision, as the person responsible for negotiating part time work agreements, that I would exclude them from further involvement in the process, as I thought they would, and commence to negotiate agreement with the Officer.” He also said that he was “not comfortable” with Chief Inspector Maxwell’s conduct. He said of Chief Inspector Maxwell:

“I don’t know why he had become involved and he was performing a project officer’s role helping Mr Minnelli with further tasks. The correspondence at one point in time I formed a view that he was thwarting the process, i.e. probably giving me directions which I need not consider and I was concerned that perhaps Chief Inspector Maxwell was operating outside the authority of the region commander. So on that basis I took a decision that I would manage this situation myself and not take advice from Chief Inspector Maxwell.”

73. When it was pointed out to Superintendent McLean that his emails on 30 May 2013 suggested that he had not immediately rejected the advice of Chief Inspector Maxwell and Inspector Wallace, he accepted that. His evidence during cross examination indicates that he is more likely to have decided to “exclude them from involvement” at a later point in time.

74. Superintendent McLean’s evidence was that, notwithstanding his email to Acting Inspector Langley, he understood that he needed to consider the applicant’s request to see if a part-time agreement could be negotiated, in accordance with the Part-Time Policy. He gave evidence that he considered the minimum number of shifts that the Campsie LAC would require in order for it to be appropriately resourced and determined that it would be able to accommodate the applicant doing seventeen shifts. He said that, at the time, he did not know the nature of any discussions or negotiations that the applicant had had with Rosehill LAC and did not know whether she would be able to work seventeen shifts. However, he was aware that she was working ten twelve-hour shifts in her then current position.

75. Under cross examination, he said that it was not until 3 June 2013 that he cast his mind to any legislative requirements, the Police Force’s policies around part-time work and carer’s responsibilities and understood that he had an obligation to discuss part-time arrangements with the applicant.

76. On 3 June 2013, Superintendent McLean forwarded by email to his HRDO, the email from Chief Inspector Maxwell of 29 May 2013 which had forwarded Superintendent Whyte’s email to the applicant, asking the HRDO to “draft something up with the same terms as what come [sic] from Scott Whyte at Rosehill.”

77. Later that day, the Campsie HRDO sent Superintendent McLean a draft email to the applicant for the Commander’s consideration, in which it was proposed, “as a starting point,” that the applicant would work 15 shifts in a six week period.

78. At 2.06 pm on 3 June 2013, Superintendent McLean emailed the applicant, stating in response to her proposal:

“The position advertised is a full time position (228 hours in six weeks) and no doubt you would be aware that the position was nominated as; ‘ESSENTIAL INFORMATION Unless otherwise stated, all vacancies are full time positions and appointment is on a full time basis’.

When considering such a proposal I am mindful of the impact your absence will have on you, other team leaders, your potential subordinates, the Command and the community, which by its nature is complex and demanding.

At this current time and into the future I am unable to accommodate a supervisor who can only work 10 shifts within a six week period. As the Commander I am required to fulfil my obligations under the first response agreement and reasonably provide appropriate supervision and resources to all staff. I am also required from time to time to meet staffing orders from the Region and other areas of the organisation.

I would be prepared to negotiate a part time agreement with an increase in your hours. As a starting point I would look towards a 34 hour a week arrangement which enable 17 shifts in a six week period.”

79. It was put to Superintendent McLean that the offer of 17 shifts per roster was not genuine. The applicant’s senior counsel, Ms Ronalds SC, suggested that he set up a sham process so it looked like he was complying with the part-time policy when he knew that the maximum the applicant could do was twelve shifts in a six week roster. Superintendent McLean denied this and denied that it was not a genuine offer, saying he had changed his mind about negotiating with the applicant between 30 May 2013 and 3 June 2013. He denied that he had put a proposal to the applicant that he knew she could not meet. He also said that he had decided 17 shifts was an appropriate offer, having consulted the rosters for the Campsie LAC.

80. On 6 June 2013, the applicant emailed Superintendent McLean informing him that his proposal would not allow her to fulfil her carer’s responsibilities and that she was therefore forced to withdraw from the position.

81. On 2 August 2013, the applicant lodged two further complaints with the ADB. The applicant alleged she was subjected to indirect discrimination on the ground of her responsibilities as a carer with respect to her application for the Campsie position (“Second Complaint”). She also alleged that she had been victimised (“Third Complaint”). On 26 August 2013, the ADB notified the General Counsel, NSW Police Force of the Second and Third Complaints.

82. On 16 December 2013, the President of the ADB referred the three complaints to the Administrative Decisions Tribunal (“ADT”). In the Summary of Complaint made on behalf of the President of the ADB, the First Complaint is stated to cover the period 28 March 2013 to 26 April 2013 and the Second Complaint to cover the period from 28 May 2013 to 2 August 2013.

83. On 1 January 2014, the ADT was abolished and the jurisdiction to determine complaints under the AD Act was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal: Civil and Administrative Tribunal Act 2013 (NSW), Schedule 3, cl 3(1).

84. In accordance with cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act, this application was an “unheard” proceeding. Clause 7 of Sch 1 provides that the Tribunal has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.

RELEVANT ANTI-DISCRIMINATION PROVISIONS

85. The AD Act was amended on 21 June 2013 by the Courts and Other Miscellaneous Legislation Amendment Act 2013 (NSW). That relevantly amended s 49T of the AD Act. The applicant’s complaints of direct and indirect discrimination relate to conduct of the respondent prior to 21 June 2013. Accordingly, the versions of ss 49S, 49T and 49V which were in force between 28 March 2013 and 21 June 2013 are applicable to her complaint. Section 50 has not been amended since 1994.

86. Section 49V(2) of the AD Act, on which the applicant relies, relevantly provided that it is unlawful to discriminate against an employee on the grounds of his or her responsibilities as a carer as follows:

“49V Discrimination against applicants and employees

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer:

(a) in the terms or conditions of employment that 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

(c) by dismissing the employee, or

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

87. “Responsibilities as a carer” was defined in s 49S(1)(a) to mean, relevantly, the person’s responsibilities to care for or support any child of the person who is wholly or substantially dependent on the person, or in need of care or support.

88. Until and including 20 June 2013, s 49T of the AD Act provided for what constitutes discrimination on the ground of a person’s responsibilities as a carer as follows:

“49T What constitutes discrimination on the ground of a person’s responsibilities as a carer

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, 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 those responsibilities, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer.”

89. Section 50 of the AD Act provided:

“50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.”

DIRECT DISCRIMINATION CLAIM: RESPONSIBILITIES AS A CARER IN WORK

90. The substantive discrimination provision relied upon by the applicant is s 49V(2) of the AD Act. In her Amended Points of Claim, she claims that the Commissioner discriminated against her on the ground of her responsibilities as a carer in the terms or conditions of employment afforded to her (s 49V(2)(a)), by denying her access, or limiting her access, to opportunities for promotion (s 49V(2)(b)) and/or by subjecting her to another detriment (s 49V(2)(d)). The claim concerning s 49V(2) is made in her pleadings under the heading “Direct Discrimination.”

91. In order to establish her direct discrimination case, the applicant must establish:

1. that s 49V(2)(a), (b) and (d) of the AD Act applies with respect to her applications for promotion to full-time position as a sergeant, in circumstances where she wished to work part-time;

2. that Superintendent Whyte and/or Superintendent McLean treated the applicant less favourably than the appropriate comparator in the same or not materially different circumstances; and

3. that they did so because the applicant had responsibilities as a carer.

Did the applicant have responsibilities as a carer?

92. It is not in dispute that, between 27 March 2013 and 2 August 2013, the applicant had three young children, all of them under school age.

93. The applicant submits that, at that age, the children were self-evidently dependent upon her for care and support. She relies upon Wright v Commissioner of Police [2014] NSWCATAD 16 at [15] as authority for the proposition that an applicant need not provide evidence of the extent of his or her carer’s responsibilities for the purpose of proving that he or she has those responsibilities.

94. The respondent contested the applicant’s claim that her children were self-evidently dependent upon her, submitting that it was only self-evident that infant children are dependent on the support of an adult, who may be a parent, another relative or a caregiver. The respondent also submitted that the nature and extent of the applicant’s responsibilities as a carer were not clear on the evidence, but that the evidence indicated that her responsibilities to care for her children were only at times that her husband was at work.

95. The applicant is required to establish that she has responsibilities as a carer by evidence. It is not something of which the Tribunal may take judicial notice: see Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAP 67 at [64]. The proposition that it is not necessary to establish the extent of a person’s responsibilities as a carer to establish that such responsibilities exist does not negate the need for evidence of the existence of such responsibilities.

96. The applicant gave evidence that, if she was unable to organise someone else to look after her children while she was at work, then she would have to look after them. She also gave evidence that she had discussed the care of the children with her husband and they had decided that the applicant would be the primary carer. In a sworn statement, she said while working 10 shifts per roster cycle at the Harbourside LAC, she “had considered a number of times whether I could work more hours, but it simply was not possible due to the need to care for our children”. She also stated, in the context of considering options for the care of her children prior to making a decision about the position at the Rosehill LAC, “I was the primary carer [sic] my children.”

97. I am satisfied, from the applicant’s evidence, that she had responsibilities as a carer for her three children at the relevant times.

Discrimination against employees: s 49V(2)

98. The extent of the applicant’s pleading in relation to the application of s 49V is that “[e]ach of the Rosehill Condition and the Campsie Condition was unlawful discrimination in breach of ss 49V(2)(a), (b) and (d).” There is no pleading as to how each of s 49V(2)(a), (b) and (d) are engaged or apply to the applicant’s circumstances. The relevant material facts (such as the alleged terms and conditions of employment for the purposes of s 49V(2)(a)) are not identified. This is unfortunate because it makes it difficult for the respondent to know the case he has to meet and for the Tribunal to identify the limits of that case.

99. The “Rosehill Condition” and the “Campsie Condition” are terms the applicant defines in the Amended Points of Claim, in the context of pleading less favourable treatment. The applicant pleads that the respondent has treated her “less favourably than the comparator” by:

1. making it a condition of the applicant taking up her appointment to the Rosehill Position that she work a minimum of fourteen twelve-hour shifts in a six-week roster period (referred to by the applicant as the “Rosehill Condition”); and

2. making it a condition of the applicant taking up her appointment to the Campsie Position that she work a minimum of seventeen twelve-hour shifts in a six-week roster period (referred to by the applicant as the “Campsie Condition”).

100. In her submissions, the applicant identifies the ways in which s 49V(2) is engaged as follows:

1. the Rosehill Condition and/or the Campsie Condition are “terms and conditions of employment” that the respondent “affords” the applicant within s 49V(2)(a);

2. the imposition of the Campsie Condition and Rosehill Condition denied or limited the applicant access to opportunities for promotion within s 49V(2)(b); and/or

3. the imposition of the Rosehill Condition and the Campsie Condition are a “detriment” within s 49V(2)(d), meaning that the inability to meet the condition led immediately and directly to a detriment, that is, the loss of a promotion.

101. I will now consider whether any of these paragraphs of s 49V(2) apply to the applicant’s circumstances.

Terms and conditions of employment (s 49V(2)(a))

102. In support of her argument that the Rosehill and Campsie Conditions were terms or conditions of her employment, the applicant relies on a passage in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 in which Lee J said that the expression “terms and conditions of employment which he affords him,” as it then appeared in s 25(2) of the AD Act, is not “restricted to the matter of the terms of contract of employment” but is “designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be.” As the applicant points out, this passage was cited with approval by Gummow, Hayne and Crennan JJ in New South Wales v Amery (2006) 230 CLR 174 at 196 [67]-[68].

103. The applicant submits that her “employment” (for the purposes of s 49V(2)(a) of the AD Act) is the appointment as a Sergeant, General Duties, Supervisor and the terms and conditions of that employment include the right to request a part-time work arrangement. The applicant submits, further, that the Rosehill and Campsie Conditions are stipulations as to the minimum hours which the Commanders could accommodate and are “demands and requirements” with which the applicant had to comply.

104. The Commissioner does not accept that the Rosehill and Campsie Conditions are terms or conditions of the applicant’s employment, and submits that they are rather concessions offered by the Commanders but never accepted by the applicant. He submits that s 49V(2) is not concerned with the terms or conditions which may be offered to an employee, and that this is the subject of s 49V(1) (which is not relied upon by the applicant).

105. The Commissioner relies upon Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 (“Laycock”), which also concerned an application for promotion and which the Commissioner says is relevantly similar to this case. In Laycock, the ADT said that the provisions concerning disability discrimination in employment in the AD Act were to be understood in the context of “the entire body of law which governs the employment relationship” (at [44]). The Tribunal referred (at [45]) to the common law entitlement of an employer “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.”

106. The Commissioner submitted that the Rosehill and Campsie positions were advertised as full-time positions and that it was a term and condition of both positions that the duties be performed full-time. It followed that the Rosehill and Campsie Conditions represented a concession that both Commanders were prepared to make to assist the applicant.

107. The Commissioner also relied upon Kelly v TPG Internet Pty Ltd (2003) 176 FLR 214 ("Kelly”) to support his argument that the Rosehill and Campsie Conditions were not terms or conditions of employment. In that case, an employee claimed that her employer discriminated against her under the Sex Discrimination Act 1984 (Cth) by imposing a condition that she work on a full-time basis upon her return from maternity leave. She had been working full time prior to taking maternity leave. Raphael FM said at 234 [82] that the refusal to provide the employee with part-time employment was a refusal to provide her with a benefit rather than the imposition of a condition, requirement or practice that was a detriment.

108. The Commissioner submitted that s 49V(2) is not concerned with the terms or conditions which may be offered to an employee, but rather that s 49V(1) is concerned with the terms on which employment is offered. The Commissioner argues that the applicant was seeking a new position, with new duties and new terms. In these circumstances, in the Commissioner’s submission, the Rosehill and Campsie Conditions were not terms and conditions of the Applicant’s employment within the meaning of s 49V(2)(a) of the AD Act.

109. In her reply submissions, the applicant said that s 49V(1) has no application to these proceedings because s 49V(1) refers to a “person” whereas s 49V(2) refers to an “employee.” In her view, s 49V(1) can have no application to a person who is already an employee. Further, the applicant says the promotional positions had new duties, but did not have new terms, as the 2009 Award and part-time work policy applied to both the applicant’s existing position and to the promotional positions.

110. The applicant sought to distinguish Laycock, on the basis that the applicant had a right to request a part-time work agreement under the 2009 Award and Part Time Work Policy, unlike Mr Laycock, who requested a restricted duties version of a promotional position on the basis of his disability. She said that, unlike Mr Laycock, the applicant was not seeking a concession or qualification to the position she had accepted.

111. The applicant also sought to distinguish Kelly on the basis that the applicant’s existing position was not one of full-time employment and she was not seeking a “benefit” in the way that term was used in Kelly, because she had a right to request part-time work.

Consideration

112. The first issue to consider is what the applicant’s employment was for the purposes of s 49V(2)(a). Some light is thrown upon this question by the High Court decision in New South Wales v Amery (2006) 230 CLR 174.

113. Amery was a case concerning alleged sex discrimination under s 25(2)(a) of the AD Act, which is broadly equivalent to s 49V(2)(a). Under State legislation, school teachers were classified as either permanent teachers or casual teachers. The highest daily rate for casual teachers was equivalent to level eight of a thirteen level scale that applied to permanent teachers. A number of female casual teachers contended that the pay differentials between casual and permanent teachers had the effect of indirectly discriminating against them on the ground of sex. They claimed that they were required to comply with the requirement or condition of obtaining permanent employment in order to access the upper levels of pay on the salary scale applicable to permanent teachers.

114. The High Court found that the casual teachers had not been discriminated against within s 25(2)(a) of the AD Act. Section 25(2)(a) provided that it was unlawful to discriminate “in the terms or conditions of employment which the employer affords the employee”. It was therefore necessary to characterise the teachers’ “employment” for the purposes of that provision. Gummow, Hayne and Crennan JJ remarked (at 196 [68], Callinan J agreeing at 232 [205]–[206] and Heydon J agreeing at 233 [210]), “In short, the presence of the word ‘employment’ in s 25(2)(a) prompts the question, ‘employment as what?’” Their Honours continued (at 196 [69]):

“The scheme of the Teaching Services Act meant that the respondents were employed, not merely as teachers, but as casual teachers within the Education Teaching Service. There is an element of incongruity in describing as a requirement or condition, compliance with which is required in the terms and conditions of employment as a casual teacher, a requirement that in order to access higher levels of salary, one must cease to be a casual teacher and obtain permanent appointment.”

115. Thus, five members of the High Court considered firstly that it was necessary to define the employees’ current employment precisely, in accordance with the relevant legislative scheme, and secondly, that it was not legitimate to identify a requirement or condition which applied when giving up the employees’ current employment as a requirement or condition of that employment.

116. The applicant’s submissions slide between asserting that the relevant employment is the employment in the promotional positions, and that it is her employment prior to accepting either of those positions. The statutory scheme under the Police Act meant that the applicant was employed not just as a police officer, but as a police officer at the rank of constable (Police Act, ss 12(1)(f), 80). As in Amery, there is an element of incongruity in describing as a requirement or condition of the applicant’s employment those requirements which would need to be met to obtain a different position.

117. There is also a question as to whether the applicant was, in fact, ever employed in the Rosehill or Campsie positions, for the purposes of considering the “terms or conditions of employment” afforded to her, within s 49V(2)(a). The applicant accepted conditional offers of employment in both those positions, then withdrew her acceptance in respect of each of them. The offers were conditional upon satisfactory results in medical and integrity checks.

118. In my view, at the time she was offered those positions, she had not yet been appointed to them. Section 71(1)(b) of the Police Act provided, at the relevant times, that it was the Commissioner’s duty before appointing a person, by way of promotion, as a non-executive police officer, to make inquiries (from the Police Integrity Commission, the Commander, Professional Standards Command, and from any other person or body the Commissioner thinks appropriate), as to the integrity of the person. Further, by s 71(4), the Commissioner may change a decision to appoint a person before the person is appointed if the Commissioner receives information as to the person’s integrity which causes the Commissioner to form the opinion that the person is not a suitable person to be so appointed.

119. At the time the applicant accepted the offers, those inquiries had not been conducted. The Commissioner had provisionally decided to appoint her to the relevant positions, but had not yet done so. Accordingly, any terms and conditions of the applicant’s prospective appointment in the Rosehill and Campsie positions were not terms and conditions of her current or actual employment. It would be straining the language of s 49V(2)(a) to say that it was a requirement or condition of the applicant’s employment at the time of applying for those positions that she accept the specified promotional positions on a full time basis. In my view, they were not “terms or conditions of employment that the employer affords the employee” (my emphasis) because at no time did they apply to the applicant’s employment. Rather, if they were terms and conditions at all, they were terms and conditions of employment in a position to which the applicant had not been appointed. If, contrary to my view, she had been appointed to it, her employment in the position had not yet commenced.

120. I accept the respondent’s submission that s 49V(2)(a) is not concerned with the terms or conditions which may be offered to an employee, but is rather concerned with terms and conditions which an employer currently provides to or “affords” the employee. I do not have to reach a view as to the applicant’s position that s 49V(1) has no application to a person who is already an employee, as the applicant has not relied upon s 49V(1) (other than as a means of construing s 49V(2)). However, I incline to the view that, being beneficial legislation, s 49V(1) should be construed liberally (see IW v City of Perth (1997) 191 CLR 1, Brennan CJ and McHugh J at 12 and 15; Waters v Public Transport Corporation (1991) 173 CLR 349, Mason CJ and Gaudron J at 359; Brennan J at 372; Dawson and Toohey JJ at 394; McHugh J at 407). That is, if I needed to decide the matter, I would construe s 49V(1) as applying to any “person,” including a current employee. This construction gains some support from the use of the word “person” in the opening words of s 49T(1) to describe both a person referred to in s 49V(1) and an employee referred to in s 49V(2). It follows that, if an employer made arrangements for the purpose of determining who should be offered employment in an advertised position, and both current employees and others applied for the position, s 49V(1)(a) would apply to all applicants for the position. This, in my view, is consistent with the language of the provision and the beneficial purposes of the legislation.

115. For the reasons given above, I find that the applicant has not established that the Rosehill or Campsie Conditions are terms or conditions of employment that the Commissioner afforded the applicant within s 49V(2)(a) of the AD Act.

116. In case I am wrong in my conclusion that the applicant was never employed in the Rosehill and Campsie positions, so that any conditions of employment in those positions were not “afforded” to her within s 49V(2)(a), I have also considered whether the Rosehill and Campsie Conditions were “terms and conditions” of her prospective employment as a sergeant.

117. After the applicant had accepted each offer, the terms and conditions of her prospective future employment included working full time. She then sought to negotiate a part-time work agreement in each command. She was offered, but did not accept, the offer to work fourteen twelve-hour shifts in a six-week roster period at Rosehill and the offer to work seventeen twelve-hour shifts in a six-week roster period at Campsie.

118. I accept that the expression “terms or conditions of employment” in s 49V(2) of the AD ACT is of broad import. However, in this case, the terms and conditions of the applicant’s prospective employment were in fact more demanding than the Rosehill and Campsie Conditions: they were that the applicant work full time, albeit that they also included a right to negotiate a flexible working agreement. The offers made to the applicant by each Commander allowing her to work fewer hours than a full-time position required were not terms and conditions of her employment, because they were not accepted by her.

119. The decisions in Kelly and Laycock are not determinative of the question of whether the offers of part-time work made to the applicant, which she has termed the Rosehill and Campsie Conditions, were terms or conditions of her employment. Neither Kelly nor Laycock addresses the question of whether the terms of an offer of a promotion could constitute the terms or conditions of an existing employee’s employment. Neither case deals with the situation where an employee accepts a promotion which is advertised on a full-time basis, then negotiates for part-time conditions but is unable to accept the conditions offered to her due to carer’s responsibilities (or any other basis upon which it is unlawful to discriminate).

120. I agree with the respondent, essentially for the reasons given in the submissions made on his behalf, that the offers made to the applicant to work fewer hours than a full-time work load were concessions, made in the course of negotiations, and not terms or conditions of employment afforded to her within s 49V(2)(a).

Denying or limiting applicant’s access to promotional opportunities (s 49V(2)(b))

127. The applicant submits that the imposition of both the Rosehill and Campsie Conditions had the effect of denying her access to opportunities for promotion or limiting her access to opportunities for promotion within s 49V(2)(b). She says that she was unable to take up either position due to those “conditions.” The applicant does not allege that the Commissioner denied or limited her access to “any other benefits associated with employment” within s 49V(2)(b).

128. The Commissioner submits that the applicant had the opportunity to apply for promotion and that there was no limitation on her access to the opportunity to seek a promotion. He says that s 49V(2)(b) does not provide for a right to be promoted or to be promoted on terms sought by an employee and contends that it is concerned only with the denial or limitation of access to the opportunity to be promoted.

129. It is the Commissioner’s position that the evidence establishes that the applicant had and used opportunities for promotion, so there is no basis for finding that s 49V(2)(b) applies on the evidence before the Tribunal. The Commissioner says, further, that s 49V(2)(b) has no application to the terms and conditions on which a promotion may be offered.

130. As a more general proposition, the Commissioner submits that the applicant seeks to strain the language of s 49V(2) of the Act to apply to a claim which is essentially about a failure to accord special treatment to her. He relies upon the remarks of Brennan J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 that “[a]nti-discrimination legislation should be liberally construed but not as though it were the only, or even the principal, means by which the disadvantages of the disabled or of other minority groups are to be alleviated.”

131. In reply, the applicant submits that the inclusion of a police officer’s name on the promotions list does not mean the police officer has the opportunity to be promoted. The applicant’s position appears to be that such an opportunity arises only after a police officer has nominated for a position on a Sergeants Vacancy List. The applicant says that it was never her position that s 49V(2)(b) provides for a right to be promoted or to be promoted on terms sought by an employee; the right to be promoted, she says, stems from s 66(4) of the Police Act. She claims she was not seeking “special treatment” in circumstances where the 2009 Award and the Part Time Work Policy provided that she had a right to request part-time work.

132. The applicant submits that the Tribunal will have no difficulty in accepting that the Rosehill and Campsie Conditions “denied the Applicant the opportunity to either promotion because she simply could not comply with them, or at the very least limited her capacity to take up either promotion.” The applicant submits further that the Rosehill and Campsie Conditions were arbitrary conditions imposed so as to create a barrier to the applicant taking up the promotional opportunities she had won on merit and to enable the Commanders to have a full time person in the positions.

Consideration

133. The applicant’s evidence is that she could not work more than twelve twelve-hour shifts per six week roster whilst still fulfilling her carer’s responsibilities. She said that she “had considered a number of times whether I could work more hours, but it simply was not possible due to the need to care for our children.” The applicant also gave evidence that she had investigated various childcare options for her children, but was unable to arrange suitable care to enable her children so as to enable her to work more than twelve twelve-hour shifts per six week roster. I accept the applicant’s evidence that she was not able to work more than twelve twelve-hour shifts per roster at the relevant times whilst fulfilling her carer’s responsibilities.

134. Section 49V(2)(b) is concerned with conduct which, relevantly, denies or limits a person’s access to opportunities for promotion. Unless the contrary intention is apparent in the AD Act, a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form (Interpretation Act 1987, ss 5(2), 8(c)). Thus, in the absence of a contrary intention, s 49V(2)(b) applies to conduct denying or limiting a person’s access to a single opportunity for promotion. Neither party submitted that there was a contrary intention apparent in the AD Act or addressed this issue at all. It is arguable that s 49V(2)(b) is intended to be confined to conduct which limits a person’s access to promotional opportunities generally, rather than with conduct which limits a person’s access to a particular promotional position. However, as already indicated, this was not argued before the Tribunal. Further, having regard to the beneficial nature of the legislation, I accept for the purposes of these proceedings that s 49V(2)(b) may apply to conduct denying or limiting a person’s access to a particular opportunity for promotion.

135. The applicant’s submission that she was denied “an opportunity to” the Rosehill or Campsie positions because she could not comply with either of the Rosehill or the Campsie Conditions requires further analysis. Section 49V(2)(b) is not directly concerned with the denial of an opportunity to a position (to use the applicant’s language); rather, it applies where an employer has denied or limited a person’s access to promotional opportunities or to a promotional opportunity.

136. There are surprisingly few cases which deal with the meaning of s 49V(2)(b) or equivalent provisions. In Coleman v Commissioner of Police, New South Wales Police Service [2001] NSWADT 34, the Tribunal considered the situation of a person with a disability who applied for promotion, was selected for a position by a selection panel, but was then advised he was unsuccessful in his application for the position. The decision maker declined to approve the recommendation of the interview panel that the complainant be appointed to the position because of her view that, as a result of his disabilities, the complainant could not fulfil the full duties of the position. The Tribunal found that the “facts clearly demonstrate that the respondent, an employer, denied an employee, the complainant, access to an opportunity for promotion” (at [29]). The key question in that case became whether the employer’s conduct was lawful on the basis that the complainant “would be unable to carry out the inherent requirements of the particular employment” within s 49D(4)(a) of the AD Act.

137. Kelly concerned the question “whether or not the actions of this employer in not offering the applicant an opportunity to take up part time employment upon her return from maternity leave constituted direct or indirect discrimination” (at [63]) but did not consider what is meant by limiting or denying an employee’s access to promotional opportunities. It is of limited assistance in this context.

138. In Laycock, the complainant was the recommended officer for the promotional position of Investigations Manager, but was not offered that position because he was found to be medically unfit for full operational duty. Mr Laycock claimed that his employer had contravened s 49D(2)(b) of the AD Act by discriminating against him on the ground of his disability (a provision equivalent to s 49V(2)(b)). The Tribunal found at [50] that “[t]his 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.”

139. It is clear from Coleman and Laycock that an employer’s decision not to offer a person a promotional position he or she won on merit on the basis of the employer’s view that the employee could not fulfil the duties of the position for medical reasons, was a denial of an opportunity for promotion. By analogy, an employer who requires a person who has carer’s responsibilities to accept a promotional position on a full time basis, or on a basis which requires the person to work more hours than the person is able to work whilst still fulfilling the person’s carer’s responsibilities, may deny or limit that person’s opportunities for promotion within s 49V(2)(b).

140. I am mindful of Brennan J’s warning that the beneficial operation of anti-discrimination legislation “is prejudiced by invoking its assistance to achieve remedies which can be achieved only by straining the legislative language” (Waters v Public Transport Corporation (1991) 173 CLR 349 at 372). It could be argued, contrary to the interpretation of s 49V(2)(b) that I have reached, that it was not intended to apply so as to require an employer to offer a full-time promotional position to a person with carer’s responsibilities on a part-time basis where that person is unable to accept the position on a full-time basis (and, what is more, to offer it at the number of hours required by that person). Such a view could gain some support from the comment in Kelly that Ms Kelly’s “demand” to work part time constituted “a form of request for positive discrimination” and what was being sought was “the provision of a benefit and not the imposition of a detriment” (at [78]-[79]).

141. Notwithstanding these considerations, I am of the view that s 49V(2)(b) is invoked in the present circumstances. First, it does not strain the legislative language to find that an employee’s access to a promotional opportunity is denied or limited by the employer requiring her to undertake the duties of that position by working a number of shifts which the employee is unable to work. On the contrary, this conclusion is consistent with the ordinary meaning of the text of s 49V(2)(b).

142. Secondly, the remarks in Kelly were made in the context of considering whether the employer had imposed a condition or requirement upon her under s 14(2)(a) of the Sex Discrimination Act 1984 (Cth). The Court found (at [82]) that “the refusal to provide Ms Kelly with part time employment was a refusal to provide her with a benefit rather than the imposition of a condition requirement or practice that was a detriment”. These comments do not directly assist in determining whether s 49V(2)(b) applies in this case, in circumstances where it is not alleged that the Commissioner denied the applicant access “to any other benefits associated with employment” within that provision. It is important not to confuse the question of whether the applicant was subjected to a detriment, within s 49V(2)(d), with the question of whether her access to promotional opportunities was denied or limited.

143. Thirdly, a finding that the Commissioner’s conduct limited or denied the applicant access to promotional opportunities does not amount to finding that an employer is required to offer a full-time promotional position to a person with carer’s responsibilities on a part-time basis, if the person cannot manage to carry out the position full-time. The employee also needs to establish that he or she has been discriminated against on the ground of his or her carer’s responsibilities, in order to establish unlawful discrimination.

144. For these reasons, I am satisfied that an employer may deny or limit an employee’s access to promotional opportunities within s 49V(2)(b) by providing those opportunities on a basis which requires the employee to work more hours than he or she is able to work.

145. The next matter to consider is whether the applicant has made out her case as pleaded, and as illuminated in her submissions. The applicant has alleged that her access to promotional opportunities was denied or limited by the imposition of the Rosehill and Campsie Conditions. To reiterate, these are defined as making it a condition of the applicant taking up her appointment to the relevant position that she work a minimum of fourteen or seventeen twelve-hour shifts in a six-week roster period. It is important to recall that the terms “Rosehill Condition” and “Campsie Condition” are essentially ways of describing the effect of offers made by the respective commanders of a part-time work agreement in circumstances where a position had been advertised full time and accepted on that basis by the applicant. There is a real question as to whether these were “conditions” of her taking up those positions and, if so, whether the conditions were “imposed” on the applicant.

146. The evidence establishes that the applicant would not have been permitted to work in the Rosehill position unless she worked at least fourteen shifts per roster period. The Macquarie Dictionary defines “condition” as including “a restricting, limiting, or modifying circumstance,” “a circumstance indispensable to some result” and “something demanded as an essential part of an agreement.” The applicant had accepted the Rosehill position on the “condition” that it was a full-time position, but in practical terms she was negotiating to achieve different conditions. I am satisfied that it was a “condition” of the applicant working in the Rosehill position that she perform at least fourteen shifts per six week roster. I also find that, through Superintendent Whyte, the Commissioner “imposed” this upon her because, although there was a negotiation process, the offer made to the applicant was ultimately in Superintendent Whyte’s discretion. Further, I find that the Rosehill Condition denied or limited the applicant’s access to the opportunity to be promoted to the Rosehill position. She did not have access to that opportunity in a practical sense, in that she was unable to carry out the duties of the position whilst meeting her responsibilities as a carer for her three children.

147. In the case of the Campsie position, the applicant withdrew from negotiations after the Commander had made her an offer of seventeen twelve-hour shifts per six week roster. Superintendent McLean’s offer was made in circumstances where the applicant had accepted a position which had been advertised as being full-time, the Commander had told her that it was his preference to have the position filled on a full-time basis and she had proposed working ten shifts per roster period several days earlier. Superintendent McLean’s evidence was that he could only accommodate the applicant working seventeen shifts, given the requirements of the block roster. Seventeen shifts was proposed in Superintendent McLean’s email to the applicant as “a starting point,” but those words may mean that it was proposed that the applicant initially work seventeen shifts per roster, rather than that this was a “starting point” for negotiations (which had already started with the applicant’s much lower offer). The Superintendent’s previous remarks to the applicant, and the remainder of the email, make plain that he was unwilling to have her work fewer than seventeen shifts. As indicated previously, the hours were entirely in the commander’s discretion.

148. In these circumstances, I am satisfied that it was in fact a condition of the applicant “taking up” the Campsie position that she work seventeen shifts per roster cycle, notwithstanding that she did not make a counter offer. This condition limited or denied her access to the promotional opportunity at Campsie because she was unable to fulfil it whilst providing the requisite level of care to her children.

149. For these reasons, the Commissioner’s conduct in imposing the Rosehill and Campsie conditions attracted the operation of s 49V(2)(b) of the AD Act.

150. Having found that s 49V(2)(b) is engaged, it is not necessary to consider, for the purposes of the applicant’s direct discrimination claim, the applicant’s allegation that the imposition of the Rosehill and Campsie Conditions subjected the applicant to a detriment within s 49V(2)(d).

DIRECT DISCRIMINATION CLAIM: ELEMENTS OF DISCRIMINATION

151. The applicant submits that the Commissioner directly discriminated against her, on the ground of her responsibilities as a carer, contrary to s 49T(1)(a) of the AD Act, by treating her less favourably than a hypothetical comparator by imposing the Rosehill and Campsie Conditions upon her.

Less favourable treatment

152. In order to determine whether the applicant was treated “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 [carer’s] responsibilities” within s 49T(1)(a), it is necessary to identify the appropriate comparator.

Comparator

153. In her amended points of claim, the applicant identifies the comparator as a police officer who has been offered and accepted an appointment to the relevant promotional position and who does not require a part-time work agreement in order to meet the police officer’s responsibilities as a carer. That is, she identifies a hypothetical comparator. The key difference between the applicant and the hypothetical comparator is that the applicant requires a part-time work agreement due to her carer’s responsibilities and the comparator does not.

154. The applicant maintains in her submissions that the “characteristics extension” in s 49T(2) affects the constitution of the comparator for both the assessment of causation and the assessment of less favourable treatment. She claims that the need to be absent from a person’s employment to provide care and support to another person is a characteristic that appertains to or is generally imputed to persons with responsibilities as a carer for young children. In other words, her case is that the effect of s 49T(2) is that the comparison which must be undertaken under s 49T(1)(a) may be made between the treatment of the applicant, on the one hand, and the hypothetical treatment of a person who does not need to be absent from his or her employment, on the other.

288. I differ with the conclusion in [179] that it is not an open and notorious fact that persons with responsibilities as a carer for three young children age four years and under need to be absent from their employment to provide care and support for these children. Moreover, the imposition of rigid time requirements outside of core work hours, such as 12-hour shifts as required by the Respondent, increases the difficulties by persons with carer responsibilities in complying with these requirements because child care centres are unlikely to operate more than twelve hours per day. This requirement was acknowledged as potentially problematic in creating indirect discrimination for persons with carer responsibilities in Dubow v Attorney-General’s Department [2005] NSWADT 231. The Applicant specified in an email to Superintendent McLean on May 29 2013 that because the day care centre attended by her children was open a maximum of 10.5 hours per day, she had a particular difficulty working a 12-hour shift two days each week when her husband was scheduled for the same 12-hour shift and the children had to attend the day care centre.

289. The present case sits between the Tribunal’s prior position on the appropriateness of judicial notice in Tleyjiv The TravelSpirit Group Pty Ltd [2005] NSWADT 294 for people with responsibilities for the care of an infant child, and the Tribunal’s prior position in Stokes v Serco Sodexho Defence Services Pty Ltd [2006] NSWADT 295 on the inappropriateness of judicial notice regarding statistical disparities applicable to people with responsibilities for the care of school age children.

290. In Tleyji, the Tribunal held that it was “a truth universally acknowledged that people with responsibilities for the care of a infant child find it difficult to balance their responsibilities to care for their child and work, and within the Australian workforce a lesser proportion of those with such responsibilities are able to work full time than those who do not.” In Tleyji, that judicial notice was applied to the first and third elements of proof of a claim of indirect discrimination.

291. In Stokes at [76], the judicial notice pertained only to the third element of proof of a claim of indirect discrimination, “whether a substantially higher proportion of persons without responsibilities as a carer [for example] comply or are able to comply with that ‘requirement or condition’”. The tribunal declined to take judicial notice “that a substantially higher proportion of people working full time on a permanent roster of day and night shifts Monday to Sunday without carer responsibilities for a school age child can or do comply with changes to a roster which require them to do all day shifts on weekdays than can people with carer responsibilities for a school age child.”

292. I am satisfied that the Tribunal’s note in Stokes is not inconsistent with the taking of judicial notice in the present case that (a) people with responsibilities for young children who are not yet of school age find it difficult to balance their responsibilities to care for their children and work, and that (b) within the Australian workforce, a lesser proportion of those who have such responsibilities are able to work full time in positions which require attendance outside of core hours than those who do not.

VICTIMISATION

295. I differ from the findings at [257] and [265] that Superintendent McLean’s considerations of the Applicant’s employment at Campsie were separable from his knowledge of the Applicant’s ADB complaint on April 24 2013, hereafter referred to as “the triggering event.” The reasons are as follows:

296. As is set out in [49-56], all of Superintendent McLean’s decisions and communications about the Applicant’s employment at Campsie occurred after he was informed of and acknowledged his awareness of the triggering event. It is undisputed that on May 28 2013 when Superintendent McLean learned that the Applicant was the highest preferencing candidate for the Campsie position, he knew that she was the person who had made an ADB complaint in relation to the Rosehill LAC.

297. Upon learning this information, Superintendent McLean took unusual step of informing his boss, the Region Commander, Assistant Commissioner Carmine (Frank) Mennilli that “this is in the wind.” His action underscored that Superintendent McLean did not regard this promotion appointment as a routine matter, nor treat the Applicant like any other promotional appointee. His awareness of the triggering event distinguished her in his view from other applicants.

298. Superintendent McLean’s sensitivity to the triggering event was intensified by ongoing activities of the Respondent’s Commanders and Regional Manager in discussing and responding to the trigger event in the period which coincided precisely with that in which he was contacted by the Applicant regarding her appointment at Campsie. Superintendent McLean maintained contact with Superintendent Chris Clarke, and the Region Commander about filling this vacancy.

299. The linkage between the triggering event and the Applicant’s request for accommodation of her carer responsibilities became more salient to Superintendent McLean on May 30, 2013, the day after the Applicant telephoned him, and before he responded to her email proposal, when he was invited to discuss the “March/Lipman issue,” at a meeting at the Regional Office, attended by Scott Whyte, other Commanders and Superintendent Chris Clark (transcript p. 375). At the hearing, Superintendent McLean confirmed that he attended a meeting with the Region Commander, other LAC Commanders and Superintendent Clarke during that week.

300. Due to the triggering event, Superintendent McLean’s view of the Applicant was not neutral. This was reflected in his statement to Inspector Wallace (transcript pp. 350-351, 358): “As I understand, this is the officer who has put Scott Whyte through hell at Rosehill regarding part time work…. he had failed to negotiate a part time work agreement with this officer and that this officer had lodged a complaint with the Anti-Discrimination Board in relation to his conduct, so I took that as - in my wording to say - “put him through hell.” At the hearing he confirmed that it was “truly unfortunate, yes, when a local area commander has to go through that process.”

301. As a consequence of his negative view of the Applicant and sympathy for Scott Whyte, Superintendent McLean was motivated to preclude the Applicant from employment at Campsie. His motivation from the outset to pass the Applicant over was explicit in this comment to Inspector Wallace: “Hopefully we’ll be able to go to the next person on the list.” Support for the finding that Superintendent McLean aimed to preclude the Applicant from working at Campsie came both from the very brief time he allocated to consideration of her request for a part-time work agreement, and from his confirmation at the hearing that his consideration was focused on this particular Applicant rather than the hours required by the position for which she had applied in general:

“Q. In that, “I cannot entertain any part time arrangement in respect to this Officer”?

A. Yep.

Q. It’s not anything about positions generally; you’re focused entirely at this stage on this particular Officer?

A. In respect to that last sentence, yes.”

302. Based on these statements by Superintendent McLean, I differ with the findings at [282], and am satisfied that the preponderance of the evidence reflected that his response to the Applicant’s promotion application, including the Campsie condition, were informed by and motivated to some degree by the triggering event.

303. I differ with the findings at [164], [247], [267], [274-275] and at [272-273] that Superintendent McLean was unaware of the Applicant’s current circumstances and inability to work 17 shifts before offering her “a 34 hour a week arrangement which enables 17 shifts in a six-week period” on June 3 2013. I reach this conclusion because four days earlier, on May 29 2013, the Applicant was instructed by Inspector Tony Wallace, when she contacted Superintendent McLean to “please give precise details of the number of shifts and hours you are able to work, so he is able to make an accurate assessment of the matter.” The Applicant duly complied and informed Superintendent Mclean of her availability with precision in her phone call to him on May 29 2013, followed by her email stating her preference “to replicate the current arrangement I have with Harbourside LAC which consists of ten 12 hour shifts in a six week period averaging 20 hours per week”. At the hearing, Superintendent McLean conceded that on May 29 2013 he was appraised of the Applicant’s availability to work at Campsie:

“Q. And so she was proposing to you at that stage a 10 by 12 hour shift?

A. Yes.

Q. In a six week period?

A. Yes.”

304. In her email of May 29 2013, the Applicant further specified to Superintendent McLean her difficulty in working more than 9.5 hours two days per week as her children’s day care centre was open a maximum of 10.5 hours per day. She offered to work two shifts of 9.5 hours per week plus an additional 12-hour shift per roster. She indicated her willingness to participate in a job-share arrangement. In this context, I am satisfied that his offer of “a 34 hour a week arrangement which enables 17 shifts in a six-week period” was not a reasonable or genuine “starting point” but was coloured in part by his consideration of the triggering event. In reaching this decision, I relied on the following evidence:

1. Prior to making this offer, Superintendent McLean was informed by Superintendent Whyte that the Applicant said she was unable to work more than 12 12-hour shifts per roster and had access to copies of the correspondence between the Applicant and Superintendent Whyte documenting her availability. Superintendent McLean’s email of June 3 2013 incorporated some identical phrases as were used in the offer sent to the Applicant by Superintendent Whyte, reflecting his familiarity with the correspondence culminating in the triggering event.

2. On June 3 2013, Superintendent McLean was advised by Respondent’s Human Resources Duty Officer that for legal reasons he needed to send an offer of less than full-time hours to the Applicant. The Duty Officer recommended an offer of 15 12-hour shifts, but Superintendent McLean increased the offer by two 12-hour shifts per roster and substituted “a 34-hour a week arrangement which enables 17 shifts in a six-week period.”

3. This offer was marginally less than a full-time work schedule, i.e., four hours per week less than a full-time schedule. Superintendent McLean’s offer was calculated to comply, albeit minimally, with the directive to offer the Applicant less than full-time hours. This offer did not bear the hallmarks of a genuine effort to be flexible in exploring options for a part-time arrangement suited to the Applicant’s availability due to her carer responsibilities. Superintendent McLean’s response to the Applicant’s proposal failed to explore options contained in her email of May 29 2013 to job share or work 9.5 hours shifts two days per week plus an extra 12-hour shift per roster, and far exceeded what he knew the Applicant could work. His reply: “I cannot accommodate your proposed Part-Time Agreement” did not convey a genuine interest in negotiation. It was calculated to discourage the Applicant and terminate further negotiations.

305. In her reply email to Superintendent McLean on June 6 2013 at 12:26pm, the Applicant expressed regret that she “was forced to withdraw” from the promotion because he could not accommodate her carer responsibilities. Superintendent McLean took no action to disabuse the Applicant of this view.

306. By 12:46pm, Superintendent McLean had issued instructions to formally de-select the Applicant from consideration for the position of Sergeant at Campsie. The speed of his decision (under ten minutes) was consistent with Superintendent McLean’s earlier intent to pass her over, and matched the speed of his response on May 28 that he needed a full-time Sergeant after learning that she was the highest ranking candidate for the position.

307. After the Applicant filed a complaint with the ADB alleging victimisation at Campsie, Superintendent McLean denigrated the Applicant by making negative comments about her to police officers at Campsie, describing her as “a real pain in my arse” for “whinging” because she did not get a job at Campsie. These comments were consistent with the negative attitude to the Applicant displayed by Superintendent McLean because she complained to the ADB and with his general disregard for the prohibition against victimisation in the AD Act.

308. To prevail in a claim of victimisation, the Tribunal view is that intent to punish is not required: “Failure to prove an intention to victimise does not mean that the complaint lacks substance.” Mitchell v Clayton Utz [2009] NSWADT 266 at [65]. What is required is a determination that one of the true or real reasons the Applicant was subjected to consequential detriment was the triggering event. Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The phrase “on the ground of” does not require the triggering event to be the sole or a substantial reason; it is sufficient if it is one of the real, genuine or true reasons. Burns v Sunol [2014] NSWCATAD 2.

309. In line with test established in Nicholls and Burns, for the foregoing reasons, I am satisfied that triggering event was one of the true or real reasons that Superintendent McLean offered marginally fewer hours than a full-time appointment to the Applicant, effectively denying her promotion. The causal link between the triggering event and Superintendent McLean’s actions to pass her over was established by the foregoing context of discussions and communications with Superintendent McLean about that event in the Regional Command, and his quick dismissal of the Applicant’s proposals for a part-time appointment. In Reddy v International Cargo Express [2004] NSWADT 218, the Tribunal found that the speed of a rejection of Mrs. Reddy’s request for part-time consideration of her carer’s responsibilities “raised a suspicion that little or no thoughtful consideration was given” to a valuable employee and structuring a job-sharing arrangement or some other reasonable alternative. A similar inference is warranted in this case, particularly because Superintendent McLean reported that he had negotiated many part-time work agreements before he was contacted by the Applicant and was familiar with the Respondent’s part-time work policies.

310. I differ with the finding at [262], [275] and [277] that imposition of the Campsie condition did not cause a detriment to the Applicant. The concept of “detriment” was elaborated in the context of a victimisation complaint was elaborated in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,145-78,146. The Equal Opportunity Tribunal, as it then was known, held that “… all that is required to constitute a ‘detriment’ in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter.” In Sivananthan v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] the Tribunal clarified that the word “detriment” should be given its ordinary English meaning of “loss, damage or injury”.

311. I am satisfied that the preponderance of the evidence established that imposition of the requirement to work 34 hours per week or 17 x 10 hour shifts per roster was detrimental to the Applicant within the meaning of s 50 of the AD Act, and that this disadvantage was more than a trivial matter. The consequential injuries, losses and damages she sustained are listed below:

1. Loss of promotion to the rank of Sergeant. The Applicant was forced to withdraw her acceptance of the position of Sergeant commensurate with her abilities and to forego the promotion she had earned. This detriment included some pecuniary damages in the form of lost income. The Applicant’s evidence was that for the initial period, her salary as a Leading Senior Constable would exceed that of a newly-appointed Sergeant, but that starting in 2015, her salary as a Leading Senior Constable was less than what her earning would have been as a Sergeant in Campsie since June 2013. An additional detriment was the lost accrual of time-in-service as Sergeant making her eligible for promotion to other positions, such as the rank of Inspector, after two years.

2. Lost past and future income through lost career opportunities attendant to the position of Sergeant, such as assignments as a relieving Inspector. While the precise number of opportunities of this sort that would have been afforded to the Applicant over a period of 2.5 years could not be specified with precision, these pecuniary losses were estimated at $20,000.

3. Psychological and physical stress in her daily activities of living. The Applicant provided unrebutted evidence that she was “extremely upset” by Superintendent McLean’s response to her promotional appointment. These events precipitated painful and embarrassing stress-induced Pomphlox eczema which lasted for months on end, and physical and psychological discomfort in the form of nausea and stress prior to attending her workplace. In the previous 11 years, the Applicant had not experienced these symptoms in response to stressful aspects of her regular policing duties. The Applicant sought medical treatment for the physical and psychological stress symptoms and obtained psychological counselling to manage the stress in her daily activities of living. The physiological and psychological stress reactions and symptoms arising from the victimisation occurred over a protracted period. They were not trivial, but were painful and disruptive forms of distress that were objectively validated by expert medical and psychological practitioners who provided intervention and treatment.

4. A decline in emotional well-being, enjoyment of life and of work. Prior to the victimisation, the Applicant loved her job, and enthusiastically attended her workplace. From June 2013, when her career advancement was thwarted, she experienced ongoing mental anguish and became demoralised. She was disillusioned, made to feel that her contribution as a police officer was not valued, was let down by the Respondent, and had nowhere to go after an 11-year commitment to her career within the New South Wales Police Force.

5. Damage to her professional reputation. As noted above, after the Applicant alleged victimisation at Campsie, Superintendent McLean denigrated the Applicant by making negative comments about her to police officers at Campsie, describing her as “a real pain in my arse” for “whinging” because she did not get a job at Campsie. Comments of this nature contributed the ongoing injury to the Applicant in the form of reputational detriment and humiliation incurred in her place of work.

312. The Applicant’s evidence about the foregoing consequential injuries, losses and damages was largely unchallenged. I am satisfied that these detriments are significant objective economic and non-economic losses and disadvantages which a reasonable person other than the Applicant would not find triviaI. I differ with the legal conclusion at [284]. The preponderance of the evidence supported the necessary elements of the Applicant’s victimisation complaint, establishing that denial of her appointment at Campsie was on one of the grounds outlined in s 50(1) of the AD Act.

313. In determining an appropriate sum to compensate the Applicant for the nature and extent of her non-pecuniary injuries, contemporary standards in the community in the form of monetary awards for comparable pain and suffering, loss of enjoyment of life and work, and reputational damage are relevant. Kenny J, Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (15 July 2014). Ms Richardson was verbally sexually harassed, experienced significant distress manifested in changes to her demeanour and physical condition, and a diagnosis from her treating psychologist of a disorder which did not prevent her from working or pursuing her career. Similarly, in the present case, the Applicant reported significant distress, experienced changes in her demeanour and physical condition, and required treatment from medical and mental health professionals. Whereas Ms Richardson was nonetheless able to advance her career, the Applicant’s career within the New South Wales Police Force was thwarted.

312. Loss of enjoyment of life and work, and reputational damage have been accorded a significant value in prior cases, including in New South Wales. In Richardson, Kenny J noted that “historically at least, damages awards have been at a higher level for loss of enjoyment of life and pain and suffering outside the anti-discrimination legislation field.” He looked to the context of damages for personal injury, and determined that “community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before.” Kenny J reviewed examples of general compensatory damages for pain and suffering and loss of enjoyment of life, including some in the range of $250,000 and $300,000 for workplace bullying and harassment in a police force and other organisations. As a result, the initial award of $18,000 in compensatory damages was determined to be “disproportionately low and failed adequately to compensate Ms Richardson” and was increased to $100,000.

313. Taking this guidance and prevailing community standards into account, I am satisfied that the sum of $70,000 to compensate the Applicant for her non-pecuniary losses is justified.

314. A retrospective appointment to the position of Sergeant as of June 3 2015 will restore the Applicant to the position she would have attained in the absence of the victimisation, including any salary differential owing to the Applicant.

315. To compensate the Applicant for additional lost past and future pecuniary damages had she worked as a Sergeant since June 2013, I am satisfied that the sum of $20,000 is reasonable, and is not speculative.

ORDERS

318. I make the following orders pursuant to Section 108(1)(b) and 108(2)(a)(c) and (d) of the AD Act:

1. The complaint of discrimination is dismissed.

2. The complaint of victimisation is substantiated.

3. Within 28 days of this decision, the Respondent shall:

1. Appoint the Applicant retrospectively from June 3 2013 to the rank and grade of Sergeant;

2. Compensate the Applicant in the amount of $20,000 for other past and future economic losses since June 3 2013;

3. Submit a written apology to the Applicant for publication in the forthcoming issues of Police Monthly and Police News, approximately one quarter of a page in size, respectively, acknowledging that she was unlawfully subjected to victimisation, by stating:

The Commissioner of Police apologises to Leading Senior Constable Riannan March for unlawfully discriminating against her on the grounds of victimisation for filing a complaint with the Anti-Discrimination Board in regard to her promotion to the position of Sergeant, General Duties, Team Leader at the Campsie LAC in June 2013.

4. Compensate the Applicant in the amount of $70,000 for general damages experienced in the form of hurt, humiliation, embarrassment, distress, anxiety, reputational damage, loss of enjoyment of life and of work;

5. Require Superintendent McLean to attend Superintendent Transition Program Training provided by its Human Resources Department plus one hour of face-to-face training in relation to unlawful victimisation, to include relevant readings and examples.

A LIMBURY, General Member

319. On the issue of judicial notice, I agree with the reasons of General Member Goodman-Delahunty as expressed in paragraphs 290-294 and with her conclusion in paragraph 294. Otherwise, I am in agreement with the decision of and the orders proposed by Senior Member Lucy.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 December 2015