LYNCH and COMMISSIONER OF POLICE

[2016] WASAT 8

LYNCH and COMMISSIONER OF POLICE [2016] WASAT 8

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 8
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:29/2014	Heard:	11, 12 AND 13 NOVEMBER 2015
Coram:	MR M SPILLANE (SENIOR MEMBER) MS D QUINLAN (MEMBER)	Delivered:	10/02/16
No of pages:	22	Judgment Part:	1 of 1
Result:	Complaint dismissed
Category:	B
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Parties:	MARK ANDREW LYNCH COMMISSIONER OF POLICE
Catchwords:	Discrimination Equal opportunity Direct discrimination Impairment Decision to transfer police prosecutor from Fremantle to Perth Was the comparator part­time or full­time Turns on own facts
Legislation:	Equal Opportunity Act 1984 (WA), s 4, s 5, s 66A, s 66B, s 89, s 90, s 107(3), s 127(a)
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Carlisle and Commissioner of Police [2012] WASAT 90 Li v Edith Cowan University [No. 3] [2013] WASCA 277 McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125 Pickett v Chan [2010] WASAT 55 Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
Orders	Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA), the complaint the subject of this inquiry is dismissed.
Summary	The applicant is an experienced police officer and police prosecutor.  The applicant sustained a back injury (his impairment) whilst on duty on 15 January 2003.  Since February 2003 he has been non­operational as a police officer and worked solely as a police prosecutor.  ,In January 2011, the applicant commenced at Fremantle Prosecuting, initially on a full­time basis.  Due to the applicant's impairment, and in order for him to better manage his ongoing symptoms, between 2011 and 2013 the applicant utilised various leave entitlements to informally reduce his working week to four then three days per week.  The applicant formally went part­time in July 2013, commencing a five day fortnight. ,On 11 January 2014, in accordance with the Tenure Management Policy, the applicant completed his three year minimum tenure as designated at Fremantle Prosecuting.  On 10 March 2014, the applicant was emailed a transfer notice advising him that he would be transferred from Fremantle Prosecuting to Perth Prosecuting.  The transfer allowed the applicant to continue as a police prosecutor at Perth Prosecutions with the same part­time hours and conditions he had at Fremantle Prosecuting.,Two significant points of difference arose between the parties as to the facts.  Firstly, concerning the reason for the transfer from Fremantle Prosecuting to Perth Prosecuting and secondly, whether the applicant should be considered to be full­time or part­time at the time of the decision to transfer (a fact which affected the Tribunal's determination of the correct comparator).  ,The Tribunal found that the applicant was not transferred because of his impairment, that being his back injury.  The Tribunal did find that the applicant was transferred in part because he was part­time.  However, being part­time was not his impairment.  Therefore, as the Tribunal found that the applicant was not transferred even partly because of his impairment, it cannot be said that he was treated less favourably on the basis of that impairment or that an experienced prosecutor who worked part­time without the impairment would not have been transferred.,The Tribunal found that the appropriate comparator in this case was an experienced part­time prosecutor without the impairment.  The Tribunal determined that the application of the comparator did not establish differential treatment and, related to that, causation also could not be established, in that the applicant had not been treated less favourably because of his impairment.  The comparator would have also been transferred to Perth Prosecuting as that skill set was required elsewhere in Western Australia Police.  Therefore, unlawful discrimination could not be established by the applicant.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : LYNCH and COMMISSIONER OF POLICE [2016] WASAT 8 MEMBER : MR M SPILLANE (SENIOR MEMBER)

MS D QUINLAN (MEMBER)

HEARD : 11, 12 AND 13 NOVEMBER 2015 DELIVERED : 10 FEBRUARY 2016 FILE NO/S : EOA 29 of 2014 BETWEEN : MARK ANDREW LYNCH

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Discrimination - Equal opportunity - Direct discrimination - Impairment - Decision to transfer police prosecutor from Fremantle to Perth - Was the comparator part­time or full­time - Turns on own facts

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 5, s 66A, s 66B, s 89, s 90, s 107(3), s 127(a)

Result:

Complaint dismissed

Summary of Tribunal's decision:

The applicant is an experienced police officer and police prosecutor. The applicant sustained a back injury (his impairment) whilst on duty on 15 January 2003. Since February 2003 he has been non­operational as a police officer and worked solely as a police prosecutor.

In January 2011, the applicant commenced at Fremantle Prosecuting, initially on a full­time basis. Due to the applicant's impairment, and in order for him to better manage his ongoing symptoms, between 2011 and 2013 the applicant utilised various leave entitlements to informally reduce his working week to four then three days per week. The applicant formally went part­time in July 2013, commencing a five day fortnight.
On 11 January 2014, in accordance with the Tenure Management Policy, the applicant completed his three year minimum tenure as designated at Fremantle Prosecuting. On 10 March 2014, the applicant was emailed a transfer notice advising him that he would be transferred from Fremantle Prosecuting to Perth Prosecuting. The transfer allowed the applicant to continue as a police prosecutor at Perth Prosecutions with the same part­time hours and conditions he had at Fremantle Prosecuting.
Two significant points of difference arose between the parties as to the facts. Firstly, concerning the reason for the transfer from Fremantle Prosecuting to Perth Prosecuting and secondly, whether the applicant should be considered to be full­time or part­time at the time of the decision to transfer (a fact which affected the Tribunal's determination of the correct comparator).
The Tribunal found that the applicant was not transferred because of his impairment, that being his back injury. The Tribunal did find that the applicant was transferred in part because he was part­time. However, being part­time was not his impairment. Therefore, as the Tribunal found that the applicant was not transferred even partly because of his impairment, it cannot be said that he was treated less favourably on the basis of that impairment or that an experienced prosecutor who worked part­time without the impairment would not have been transferred.
The Tribunal found that the appropriate comparator in this case was an experienced part­time prosecutor without the impairment. The Tribunal determined that the application of the comparator did not establish differential treatment and, related to that, causation also could not be established, in that the applicant had not been treated less favourably because of his impairment. The comparator would have also been transferred to Perth Prosecuting as that skill set was required elsewhere in Western Australia Police. Therefore, unlawful discrimination could not be established by the applicant.

Category: B

Representation:

Counsel:

Applicant : Mr R Yates
Respondent : Mr D Leigh

Solicitors:

Applicant : Tindall Gask Bentley Lawyers
Respondent : State Solicitor's Office

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Carlisle and Commissioner of Police [2012] WASAT 90
Li v Edith Cowan University [No. 3] [2013] WASCA 277
McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125
Pickett v Chan [2010] WASAT 55
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 Mr Mark Andrew Lynch (applicant) is an experienced police sergeant and police prosecutor having been appointed as a police officer since 1979. For approximately 25 of the 36 years that the applicant has been a police officer, he has been a police prosecutor. The applicant sustained a back injury whilst on duty on 15 January 2003 and since February 2003 he has been non­operational as a police officer and worked solely as a police prosecutor.

2 On 6 May 2014, the applicant lodged a complaint with the Commissioner for Equal Opportunity (EO Commissioner) claiming that he had been the subject of direct discrimination on the ground of impairment by the Commissioner of Police (respondent) when a decision was made to transfer him from Fremantle Prosecuting to Perth Prosecuting on 10 March 2014.

3 On 4 September 2014, pursuant to s 89 of the Equal Opportunity Act 1984 (WA) (EO Act), the EO Commissioner dismissed the applicant's complaint on the basis it was lacking in substance and advised him of his right to request a referral to the Tribunal under s 90 of the EO Act. Therefore, these proceedings arise in the Tribunal by way of a request by the applicant and a referral by the EO Commissioner under s 90 of the EO Act.

4 Pursuant to s 107(3) of the EO Act, the Tribunal is to hold an inquiry into the complaint or matter referred. The jurisdiction of the Tribunal is confined to the complaint or matter before the EO Commissioner: Li v Edith Cowan University [No. 3][2013] WASCA 277 at [38].

5 The applicant has alleged direct discrimination under s 66A(1)(a) of the EO Act and not indirect discrimination under s 66A(3) of the Act. Further, the applicant has not alleged pursuant to s 66A(1)(b) of the EO Act that his part­time work status is a characteristic that appertains generally to persons having the same impairment.

The issue for determination

6 The principal issue for the Tribunal to determine is whether the respondent, in transferring the applicant from Fremantle Prosecuting to Perth Prosecuting on 10 March 2014, unlawfully discriminated against the applicant on the ground of his impairment contrary to s 66A(1)(a) and s 66B(2)(d) of the EO Act.

The EO Act and relevant case law

7 Relevant to the present matter before the Tribunal, s 66A of the EO Act provides as follows:

1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of ­

a) the impairment of the aggrieved person; or

…


the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.

8 Relevant to the present matter before the Tribunal s 66B provides:

…

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's impairment ­


…

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

9 How unlawful discrimination may be established under the EO Act has been recently summarised by Senior Member McNab in McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125 at [21] - [23] as follows:

In Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent), Pritchard DCJ (as Her Honour then was) helpfully summarised the elements of a successful claim under s 66A(1) of the EO Act. Her Honour noted, at [32], that the applicant must show that:

a) he suffered from an impairment;

b) the [respondent] treated him less favourably than in the same circumstances[,] or in circumstances that are not materially different, the [respondent] treats or would treat a person without such an impairment; and

c) he was treated less favourably on the basis of that impairment ­ that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about;


• it is not necessary for the impairment to be the sole or a dominant or substantial ground for the relevant conduct ­ it is enough if it is one of the grounds for the conduct;

• proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the impairment.

See Williams and Commissioner of Police[2005] WASAT 349 at [35] ­ [38] and the cases cited therein, and see also s 5 of the EO Act.


Similar observations appear in Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16 (Edoo) at [78] ­ [80] (Pritchard DCJ and Member McNab).

Thus, Mr McMahon must:

… prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances … The expression 'less favourably' [appearing in the EO Act] bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case …

To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated …

It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical … Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.

(Edoo at [160] ­ [162], internal citations omitted).

10 The applicant bears the onus of proof and must prove his case on the balance of probabilities. Allegations of discrimination are serious matters and have serious consequences under the EO Act. Consequently, although the civil standard of proof on the balance of probabilities applies, the Tribunal must feel an 'actual persuasion' that the facts said to demonstrate the alleged discrimination actually occurred, and the Tribunal is reasonably satisfied that the allegations of discrimination have been proved to what is often called the Briginshaw standard of proof before making any such finding: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 ­ 362 (Dixon J) as cited in Pickett v Chan [2010] WASAT 55 at [18].

11 In order to determine whether the applicant was treated less favourably than another police prosecutor without the impairment would have been, the EO Act calls for a comparison (that is, a comparator). The Tribunal must compare the decision to transfer the applicant as a person with the impairment and what decision would have been made to transfer a person in similar circumstances but without the impairment. This requires the Tribunal to identify the circumstances surrounding the decision to transfer, which necessarily includes the fact that the applicant is an experienced police prosecutor: see Carlisle and Commissioner of Police [2012] WASAT 90 citing Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [223] per Gummow, Hayne and Heydon JJ.

12 If the elements set out above are determined in the applicants favour, the final issue for determination is whether the applicant was subjected to a detriment in his employment (detriment).

13 The respondent conceded that the applicant suffers an impairment as defined in s 4 of the EO Act; namely, chronic degenerative mechanical back pain with a history of an L3/L4 discectomy.

14 The applicant must therefore establish each of the other three elements, namely comparator, causation and detriment before a complaint of unlawful discrimination under the EO Act can be substantiated. If the applicant cannot establish any one of them, he cannot substantiate his claim of unlawful discrimination.

The applicant's case

15 The applicant submits that he was transferred to Perth Prosecuting because the respondent did not want a part­time prosecutor at Fremantle Prosecuting. His full­time position had never been formally 'split' into two part­time positions and, but for his impairment, he would have worked full­time. In transferring the applicant, the respondent treated the applicant less favourably, or in circumstances that were not materially different, than the comparator, which the applicant submits is an experienced full­time police prosecutor who does not have the impairment.

The respondent's case

16 The respondent submits that the transfer of the applicant did not constitute unlawful discrimination. The respondent did not treat the applicant less favourably, or in circumstances that were not materially different, than the comparator, which the respondent submits is an experienced part­time police prosecutor who does not have the impairment but whose skill set is required elsewhere within the Western Australia Police. Furthermore, the respondent submits that the applicant is a member of the police force and as such he can be transferred to perform the same duties anywhere within the Western Australia Police.

Background

17 The hearing took place over three days. The applicant provided oral evidence at the hearing and was cross­examined by the respondent. The applicant also provided a witness statement from Mr Andrew Berkin who was not required for cross­examination by the respondent. For the respondent oral evidence was provided by Sergeant Neil Regan, Inspector Russell Williams and Superintendent Kim Porter who were all cross­examined by the applicant. The respondent also provided witness statements from Senior Constable James Donnachie, Ms Kim Lake and Sergeant Matthew Barker who were not required for cross­examination by the applicant.

18 The facts in this case are largely agreed. The Tribunal has determined that it is not necessary to recount all of the evidence in these reasons or to make findings concerning all of the disputed facts. Two significant points of difference do arise between the parties. Firstly, concerning the reason for the applicant's transfer from Fremantle Prosecuting to Perth Prosecuting and secondly, whether the applicant should be considered to be full­time or part­time at the time of the decision to transfer, a fact which affects the Tribunal's determination of the correct comparator. The Tribunal will address these significant points of difference separately after first summarising the largely agreed background facts.

Facts

19 As stated above, the applicant has been a police officer since 1979 and worked for approximately 25 years of that time as a police prosecutor. He is a very experienced police prosecutor. In January 2003, the applicant injured his back whilst on duty and in February 2003, he was declared to be a non­operational officer.

20 Between 2003 and 2011, the applicant worked full­time as a police prosecutor at various Perth metropolitan locations. In January 2011, the applicant commenced at Fremantle Prosecuting, initially on a full­time basis. Between February 2011 and 1 July 2013, the respondent allowed the applicant to utilise long service leave, purchased leave, annual leave and sick leave to informally reduce his working week to four days per week and then to three days per week. This reduction in hours was done because of the applicant's impairment and in order for him to better manage his ongoing symptoms.

21 In November 2011, the applicant lodged an in­house grievance regarding a declined purchase leave application by the applicant's supervisor, Senior Sergeant Castledine. Without going into further detail or determining the substance of the grievance, the Tribunal notes by way of background that this grievance was resolved and the purchased leave application was granted.

22 In September 2012, the applicant made a complaint to the EO Commissioner. Again, without going into further detail or determining the substance of the complaint, the Tribunal notes by way of background that this complaint was resolved and consequently withdrawn by the applicant.

23 There was a difficult working relationship between Senior Sergeant Castledine and the applicant. The Tribunal considers that the background to this matter is not relevant to the principal issue for inquiry, being whether the decision to transfer the applicant constituted unlawful discrimination, suffice it to notethat this difficult working relationship resulted in a new supervisory structure being put in place for the applicant in July 2012 with Inspector Russell Williams being the direct supervisor for the applicant and it was he who completed the applicant's performance review.

24 In about May 2013, the respondent and the applicant agreed that the applicant would formally reduce his working hours to part­time. The respondent offered the applicant a 0.6 full­time equivalent (FTE) position, being three days per week. Ultimately, the applicant commenced a 0.5 FTE, comprising a five day fortnight effective from 1 July 2013. This formal arrangement then allowed the respondent to internally advertise a 0.5 FTE vacancy. No suitable candidates were found to fill the 0.5 FTE vacancy.

25 From August to December 2013, the applicant was requested by Inspector Williams to assist with a project at Perth Prosecuting whilst retaining his substantive position at Fremantle Prosecuting. The project ended in December 2013 and the applicant remained at Perth Prosecuting despite his request to return to Fremantle Prosecuting.

26 On 11 January 2014, in accordance with the respondent's Tenure Management Policy (Tenure Policy) detailed further below, the applicant completed his three year minimum tenure as designated at Fremantle Prosecuting. Fremantle Prosecuting has a maximum tenure available of five years.

27 On 10 March 2014, the applicant was emailed a transfer notice advising him that he would be transferred to Perth Prosecuting. The applicant's transfer allowed for him to continue as a police prosecutor at Perth Prosecutions with the same part­time hours and conditions he had at Fremantle Prosecuting.

28 On 21 March 2014, a full­time police prosecutor position was advertised. Sergeant Matthew Barker applied and was successful in obtaining a full­time position at Fremantle Prosecuting.

The Tenure Policy

29 Relevant to these proceedings, the respondent's Tenure Policy provides in summary as follows:

a) Tenure is managed in recognition of:

i. the organisational requirements and the maintenance of Western Australia Police capacity and availability state-wide;

ii. the exchange of new ideas and skills; and

iii. the placement of non-operational police officers.


b) The Tenure Policy applies equally to both part­time and full­time police officers.

c) Prosecuting is a special tenure position with a minimum tenure in the metropolitan area of three years and a maximum tenure of five years.

d) Continued deployment beyond minimum tenure is at the discretion of the Portfolio/District/Division/Branch Head subject to organisational need and a police officer's satisfactory performance, professional development needs and skill set.

30 Apart from the evidence of the applicant, Inspector Williams and Superintendent Porter summarised below, the Tribunal heard further uncontested evidence in relation to the application of the Tenure Policy and the transfer of police prosecutors. This evidence can be relevantly summarised as follows:

a) Along with the applicant and Sergeant Jim Scott, who transferred from Mandurah Prosecuting, Sergeant Regan who was also an experienced police prosecutor at Fremantle Prosecuting (prosecuting there from 2006 to 2014) was also transferred to Perth Prosecuting due to organisational need.

b) Senior Constable James Donnachie was transferred from Mandurah Prosecuting to Perth Prosecuting during his time of minimum tenure.

c) Both Ms Kim Lake, Acting Business Coordinator in Judicial Services, and Mr Andrew Berkin, Project and Administration Officer, provided evidence of the number of prosecutors who were moved when the Tenure Policy was applied and who availed themselves of voluntary redundancies resulting in a shortage of skilled prosecutors available at Perth Prosecuting.

The applicant's evidence

31 The applicant provided two witness statements and was cross­examined in relation to his evidence. Whilst this process afforded the Tribunal an opportunity to assess the applicant's credibility and reliability as a witness, it is not necessary to recount much of that evidence in these reasons. As mentioned earlier in these reasons, the Tribunal will confine itself to the principal issue in recounting the evidence of the applicant; in particular, the reasons for his transfer to Perth Prosecuting on 10 March 2014.

32 Relevant to this, the applicant's evidence in his witness statements can be summarised as follows:

a) On the afternoon of 13 January 2014, Inspector Russell Williams told him 'I have some good news and some bad news. The good news is you can stay in prosecuting. The bad news is you are being transferred to Perth'.

b) At 2.45 pm on 24 January 2014, Inspector Williams told him 'Kim Porter is only moving you to give you the shits'.

c) On another occasion, Inspector Williams told him that the basis of the transfer was because he was unable to work full­time and the agency wanted to appoint someone to his position who could work full­time.

33 Relevant to these reasons, the applicant's evidence in cross­examination can be summarised as follows:

a) After being taken to a number of documents, he agreed with the proposition that he meticulously and conscientiously took notes or diarised (in the form of memorandums or emails) important conversations as they occurred.

b) He agreed with the proposition that he had been fearless in advocating his own interests when decisions were made that affected his working hours.

c) He sent an email on 13 January 2014 to Assistant Commissioner Panaia which detailed a number of conversations he had previously had with Inspector Williams, but did not include the conversation detailed in his witness statement which occurred on the afternoon of 13 January 2014 referred to above, as the email was sent before that conversation.

d) He sent a further email on 3 February 2014 to Assistant Commissioner Panaia which made no reference to any of the three important conversations he detailed in his witness statement that he states he had with Inspector Williams, as this was a 'recognition that it's a face saving thing, too, for the executive. You don't want to shove things down their throats all the time. You've got to balance things out.' The email includes:


I appreciate that upon consideration of this matter that you have not responded to me personally but I had hoped that your views on the subject would have filtered down through Mr Porter and Mr Williams. However, Mr Williams as of last week advised that nothing had been raised on the subject.

Mr Williams has now advised that it is intended that a transfer notice be issued on 10/02/14 transferring me to Perth Prosecuting. I have sought assistance and taken advice from appointing legal counsel contracted to the WAPU. I am now advised that I have a good case for a breach of the Equal Opportunity Act 1984.

Please note that whilst it is not my wish to do so ­ that I would be obliged to commence proceedings in the Equal Opportunity Commission once a transfer notice is issued in these circumstances.

The respondent's evidence

Inspector Williams

34 Inspector Williams has recently retired from the Western Australia Police. Relevant to these reasons, the evidence of Inspector Williams in his witness statement can be summarised as follows:

a) The Tenure Policy requires that police officers attached to a prosecuting office have a minimum of three years' tenure to a maximum of five years. Continued employment at a location beyond three years is at the discretion of the Division management and is dependent on organisational need and the police officer's satisfactory performance, professional development needs and skill set.

b) Whilst the Tenure Policy had not been adhered to for a number of years in the prosecuting services division, around February 2013 it became clear from Assistant Commissioner Panaia that it was now to be adhered to, in particular the timeframes.

c) Applying the Tenure Policy was a difficult and lengthy process, complicated by voluntary redundancies being offered around that time which created a skill gap of experienced prosecutors, particularly in Perth Prosecuting.

d) Application of the Tenure Policy started first with prosecutors at maximum tenure. Once this process was finalised there still remained a skills gap in Perth Prosecuting where many complex trials tend to be listed, as suburban Magistrates transfer complex and lengthy trials to Perth. Another skills gap in Perth was the ability to train prosecutors.

e) After consideration of all available prosecutors, and with knowledge that the applicant had a training background, the applicant was identified as the best fit.

f) The applicant had not initially been on the tenure list as he was within minimum tenure. However, his minimum period was coming to end and it was clear that Fremantle management (that is, Senior Sergeant Castledine) would not renew the applicant's tenure. With that in mind, around late 2013/early 2014, it was decided that the applicant was to transfer to Perth Prosecuting. This decision was based on: his minimum tenure was coming to an end; there was an organisational need; and he had the relevant skills and training background (including knowledge of the new briefcase model that the applicant knew about from his special project in Perth). Management also made the decision in the knowledge that the applicant would probably make this claim as this had been said to him by the applicant on a number of occasions.

g) A factor in transferring the applicant, although not a defining factor, was the tension and acrimonious situation at Fremantle Prosecuting in relation to the applicant. Inspector Williams consistently advised the applicant that Western Australia Police would honour the part­time arrangement. He was actively trying to make the situation work for everyone and keep the applicant happy and working.

h) Fremantle Prosecuting could not sustain a part­time prosecutor without filling the other 0.5 FTE, which he desperately sought to fill. Transferring the applicant to Perth meant that they could replace him with a full­time prosecutor, thereby relieving the workload and tension at Fremantle. Whilst Inspector Williams was aware of these issues at the time of transferring the applicant, they were not the motivating factor, as the decision was based on organisational need.

35 Relevant to these reasons, the evidence of Inspector Williams in cross­examination can be summarised as follows:

a) He had a good working relationship with the applicant and they would often have impromptu conversations where they would 'shoot the breeze' about 'sex, football and meat pies'.

b) When asked if the decision to transfer the applicant was his, he replied:


Ultimately, it was a collective decision, and I'm quite happy for the responsibility of making that decision to rest on my shoulders … But ultimately I would suggest that Superintendent Porter would say it was his because he was the one that finally ticked off on them.

c) In response to the evidence of the applicant as to the conversation on 13 January 2014, his recollection was that he told the applicant that he was going to be transferred and that he did not think he would be so flippant as to use phrases such as 'good news' and 'bad news'; however, he conceded it was possible.

d) As to a conversation on 24 January 2014 regarding which the applicant testified that Inspector Williams told him 'Kim Porter is only moving you to give you the shits', Inspector Williams testified:


… absolutely no way in the world that was said … I definitely do not agree with that. One, I wouldn't say it because it undermines the position Mr Porter had and I don't believe it's typical of Mr Porter's approach … I cannot say it more emphatically no … I think it's totally improper and unacceptable to say that about Mr Porter whose focus in this whole process, like mine, to get the right balance, and at the same time facilitate Mark's back injury and part­time arrangements he had. That was our aim, that's what we tried to do. And at the end of the day we had a void of skill in Perth because of the moves we had to make and because of the redundancies, and we had to get quality reliable people into Perth because Perth was the nucleus of prosecuting across the state … That's why Mark was moved, but to infer that Mr Porter was doing it in some way to get back at Mark, or give him the shits, is totally inappropriate.

e) The applicant's alleged third conversation on an unknown date was not put to Inspector Williams in cross­examination. However, he was asked whether the applicant would have been moved if he had been working full­time and not had the injury, and he testified:

There would be no reason to move him unless his tenure was up and I think it was. So the answer to your question is if he was fully fit working with full FTE, and meeting his performance goals, he would stay there.

Superintendent Porter

36 Superintendent Porter has also recently retired from the Western Australia Police. Relevant to these reasons, the evidence of Superintendent Porter in his witness statement can be summarised as follows:

a) In 2012, there was ongoing pressure from police executive to implement the Tenure Policy. Somewhere between July and October 2013 there was an absolute ultimatum from the Assistant Commissioner which dictated that officers who had completed their maximum tenure were to be moved out of prosecuting positions.

b) During the latter half of 2013, they lost 11 experienced prosecutors due to implementation of the Tenure Policy and a further seven prosecutors, comprising six from Perth, due to voluntary redundancies. This resulted in Perth Prosecuting being critically short of experienced prosecutors. The training area now only had one officer when it had previously been three.

c) Superintendent Porter was due to retire in February 2014 and he did not want to leave without a strategy in place to deal with these problems as he was aware that he would not be replaced for several months.

d) It was his Superintendent Porter's decision to move the applicant and he made this decision prior to Christmas 2013 in consultation with the Prosecuting Services Division management team.

e) The decision to transfer the applicant took into consideration a number of factors: he was not performing well at Fremantle Prosecuting; he was an experienced prosecutor; he said he wanted to do longer trials which could be accommodated at Perth; he could assist with training; and a 0.5 FTE could not be sustained at Fremantle. To Superintendent Porter's knowledge, there was no other prosecutor outside of Perth who had training experience that he could have moved other than the applicant.

f) Prosecuting Services Division tried unsuccessfully to fill the 0.5 FTE position and in the meantime were borrowing the time of other prosecutors to fill the gap. This was not sustainable and put undue pressure on other prosecutors.

g) The fact that the staff at Fremantle did not appear to like the applicant as he was not pulling his weight did not form part of his decision to move the applicant at that time. If it did form part of his decision, he would have moved the applicant a lot earlier. Even though he considered the applicant was difficult, he did his best to accommodate him for as long as possible. However, it reached a point where he had to make a decision. There was an organisational need for an experienced prosecutor at Perth. The applicant had finished his minimum tenure and could no longer remain at Fremantle unless Superintendent Porter provided another full­time prosecutor to Fremantle, which he could not do. The part time position could be better absorbed in Perth Prosecuting because it was much larger than Fremantle and so percentage wise there was less impact.

h) The applicant was not the only person who was transferred, as Sergeant Regan was also transferred from Fremantle to Perth against his will due to organisational need and the impact of the Tenure Policy.

37 Relevant to these reasons, the evidence of Superintendent Porter in cross­examination can be summarised as follows:

a) In answer to the proposition that the fifth reason stated in paragraph 63 of his witness statement that Fremantle could no longer sustain a 0.5 FTE and needed a full­time person was actually the predominant reason for the transfer, Superintendent Porter replied:

If that had been the case, I would have shifted Mr Lynch a long time before this because he was effectively working part time for a very long time prior to the formal arrangement … It was one of the factors, but all of these factors were taken into account, and the main reason that Mr Lynch got shifted was because I had a tenure policy in force … we had a situation where voluntary redundancies were offered … I think we lost about 18 staff in a period of probably six or eight months, most of them from Perth, all very experienced people. It was necessary to restructure and consolidate our staff and get people back into Perth where we needed the more experienced people. He's a very experienced prosecutor, when he puts his mind to it, and he was moved back to Perth for that reason.

b) Superintendent Porter did not agree with the proposition that had the applicant been able to work full­time hours he would not have been transferred, and in answer to why he did not agree with the proposition, he stated:

For the reasons I've listed here as to why he was transferred. We needed experienced people back in Perth; he was an experienced prosecutor … He also had training background, which made it very desirable to bring him back to Perth[.]

The Tribunal's findings

Findings as to credibility and reliability ­ applicant, Inspector Williams and Superintendent Porter

38 It is the Tribunal's view, in particular in relation to the reasons why the applicant was transferred, that the Tribunal cannot rely on the applicant's evidence. Firstly, it was not the applicant who made the decision, and secondly, the Tribunal, as explained further below, prefers the evidence of Inspector Williams and Superintendent Porter rather than the evidence of the applicant.

39 Inspector Williams and Superintendent Porter are both retired police officers and there was no indication in the Tribunal's view that either of them were seeking to align their evidence with the respondent's position. They were both honest and forthright witnesses. Their evidence was generally consistent with one another on the issues for determination before the Tribunal. Though the Tribunal noted some points of difference due to slightly different recollections and to the passage of time, as well as the fact they are both now retired and prepared their witness statements largely utilising their independent recollection, the Tribunal considers those differences (except as stated below) to be of no significance to the Tribunal's decision. Indeed, the small differences in their evidence indicate that they have not colluded in any way. Most notably, the evidence of both Superintendent Porter and Inspector Williams were tellingly inconsistent with the applicant as to the reasons for his move.

40 It is the Tribunal's view that the applicant has a perception of his treatment, in particular in relation to the decision to transfer him to Perth Prosecuting, that is incorrect and without proper factual foundation. This incorrect perception influences his evidence to such a significant extent that the Tribunal is of the view that his evidence is unreliable in many respects. Where there are any inconsistencies between the evidence of the applicant and the evidence of Inspector Williams and Superintendent Porter, the Tribunal prefers the latter two witnesses.

41 The Tribunal finds that the times that the applicant claims that Inspector Williams told him certain things regarding the reasons for the transfer ­ namely, 13 and 24 January 2014 and a third undated occasion ­ either did not occur at all or did not occur in the way that the applicant has framed these comments by Inspector Williams. The Tribunal does not accept the applicant's explanation as to why, when he was meticulous in recording conversations and reporting these to management, he did not advise Assistant Commissioner Panaia of these conversations. The Tribunal accepts the evidence of Inspector Williams as to these conversations (though only the first two conversations were put to him in cross­examination) and does not accept the applicant's evidence.

42 Except in one respect detailed further below, to the extent that it is necessary and where their evidence differs with one another, the Tribunal prefers the evidence of Inspector Williams over that of Superintendent Porter. The Tribunal is of the view that Inspector Williams had a more direct working relationship with the applicant than Superintendent Porter and had a better recollection of events; for instance, in relation to the applicant's travelling time between Fremantle and Perth being part of his working day whilst he worked on the special project in Perth.

43 However, as the Tribunal finds that Superintendent Porter was the ultimate decision­maker concerning the transfer of the applicant, his evidence as to the reasons why the applicant was transferred is preferred, not only in preference to the applicant, but also Inspector Williams. However, in any event, it is not abundantly clear that there is a disagreement between Inspector Williams and Superintendent Porter in this regard. The answer given by Inspector Williams in cross­examination that, if the applicant was full­time, fully fit and meeting performance goals he would have remained at Fremantle, did have the caveat 'unless his tenure was up and I think it was'.

Was the applicant occupying a full­time or part­time position as at 10 March 2014?

44 The 0.5 FTE positon at Fremantle Prosecuting was not filled as no suitable candidates could be found. Superintendent Porter testified that, as no one was found to fill the remaining 0.5 FTE position, for administrative reasons, the position occupied by the applicant was never formally split into two 0.5 FTE positions. This was because it would be administratively difficult to amalgamate the two positions back into one full­time position.

45 The applicant has submitted that, because the position was never formally administratively split, he was actually occupying a full­time position at the time of the move to Perth Prosecuting and therefore he should be considered full­time for the purposes of the comparator. The applicant has further suggested (or sought to imply) that this is evidence of a conspiracy to be rid of him from Fremantle Prosecuting and to replace him with a full­time prosecutor. The Tribunal does not agree with this submission and accepts the explanation of Superintendent Porter in this regard which is both cogent and reasonable.

46 It is the view of the Tribunal that the applicant's submission as to the correct comparator being a full­time prosecutor misconceives Purvis. The Tribunal considers this to be an artificial argument which, in any event, does not go to the merits of whether there has been unlawful discrimination under the EO Act. The applicant's submission in this regard is misconceived and appears to conflate two things: 1) whether the applicant was part­time or full­time with 2) the impairment as defined under s 5 of the EO Act.

47 The Tribunal finds that the applicant was clearly working part­time from at least July 2013 (when he formally transferred to part­time) and possibly even before that time. The Tribunal notes, for clarification here, that the applicant's complaint did not submit that his working hours are a characteristic of the impairment (that is, see s 66A(1)(b) of the EO Act), nor was working full­time an unlawful condition of employment when he suffers an impairment (that is, see s 66B(2)(a) of the EO Act).

Why was the applicant transferred?

48 The Tribunal finds that since early 2011, the respondent has done everything possible and reasonable to accommodate the applicant's impairment. Further, the Tribunal finds that by the end of 2013, the respondent had a skills gap in Perth Prosecuting, to which the applicant, being a senior prosecutor and who also had experience in training, was well suited to assist in filling. Also, the respondent could no longer sustain a part­time prosecutor in Fremantle Prosecuting in circumstances where it was unable to fulfil the other 0.5 FTE. In applying the Tenure Policy, the respondent made the decision to transfer the applicant to Perth Prosecuting.

49 The Tribunal finds that the applicant was not transferred because of his impairment, that being his back injury. The Tribunal does find that the applicant was transferred in part because he was part­time. However, being part­time is not his impairment.

Conclusion

50 As the applicant was not transferred even partly because of his impairment, it cannot be said that he was treated less favourably on the basis of that impairment or that an experienced prosecutor who worked part­time without the impairment would not have been transferred.

51 The Tribunal finds that the appropriate comparator in this case is an experienced part­time prosecutor without the impairment. The Tribunal considers that such a comparator would also have been transferred to Perth in the same circumstances. The Tribunal has determined that the application of the comparator does not establish differential treatment and, related to that, causation also cannot be established, in that the applicant has not been treated less favourably because of his impairment. Therefore, unlawful discrimination cannot be established by the applicant. There is no need for the Tribunal to consider detriment.

52 The Tribunal further finds, and accepts the respondent's alternative contention, if the Tribunal is incorrect and the comparator does occupy a full­time position, that, in any event, the comparator would have also been transferred to Perth Prosecuting as that skill set was required elsewhere in Western Australia Police.

Orders

53 Accordingly, for the reasons given above, the Tribunal makes the following order:

1. Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA), the complaint the subject of this inquiry is dismissed.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR M SPILLANE, SENIOR MEMBER