Mooney v Commissioner of Police, New South Wales Police Service (No 2)

[2003] NSWADT 107

CITATION:	Mooney v Commissioner of Police, New South Wales Police Service ( No 2) [2003] NSWADT 107
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Dennis Mooney RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	021094
HEARING DATES:	26/02/2003-27/02/2003
SUBMISSIONS CLOSED:	03/14/2003
DATE OF DECISION:	05/19/2003
BEFORE:	Hennessy N - Magistrate (Deputy President); Bolt M - Member; Pun A - Member
APPLICATION:	Age Discrimination - In work - Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Equal Opportunity Act 1984 (WA)
CASES CITED:	Commissioner of Police, NSW Police Service v Mooney (EOD) [2001] NSWADTAP 20 State Transit Authority v Sloey & Anor [1999] NSWSC 47 IW v City of Perth P37/1996 (12 November 1996) Sullivan v Department of Defence (1992) EOC 92-421 Commonwealth of Australia v The Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-566
REPRESENTATION:	APPLICANT S Beckett, barrister RESPONDENT S Winters, barrister
ORDERS:	1. Complaint substantiated, in part; 2 The Tribunal makes the following directions:; a) Applicant to file and serve further evidence in relation to the orders the Tribunal should make within 28 days of the date of this decision; b) Respondent to file and serve any evidence in response within a further 28 days.c) Registry to re-list the matter in consultation with the Tribunal members and the parties on the question of the appropriate orders that should be made, if any.

1 These proceedings relate to a complaint by Mr Mooney that the Commissioner of Police (the respondent) discriminated against him in employment on the grounds of his age and the fact that he has certain disabilities. The respondent employed Mr Mooney from 4 January 1988 to 18 August 1995. His complaint relates mainly to the application to him of a policy entitled the “New South Wales Police Service Sick Leave Policy” (the sick leave policy) which was published in the Police Service Weekly on 2 March 1992. That policy is no longer in force.

2 This is the second time that Mr Mooney’s complaint has been before the Tribunal. When the complaint was first referred by the President of the Anti-Discrimination Board (ADB), the Tribunal rejected the respondent’s application under s 111 of the Anti-Discrimination Act 1977 (AD Act) that the complaint should be dismissed. There were two grounds for the respondent’s application:

a) the complaint was received by the President of the ADB outside of the time stipulated by section 88 (3) of the AD Act and that, in the absence of the power under s 88(4) being exercised by the President, the complaint was invalidly received and therefore invalidly referred to the Tribunal, and

b) the complaint was misconceived and lacking in substance.

3 The Tribunal found that the complaint was not lodged out of time and found that both direct and indirect discrimination, was "capable of being established by the Complainant." (See paragraphs 24 and 26 of the Tribunal's decision of the 17 March, 2000.)

4 The respondent appealed against the Tribunal’s decision to the Appeal Panel (Commissioner of Police, NSW Police Service v Mooney (EOD) [2001] NSWADTAP 20.) The Appeal Panel agreed with the respondent that the Tribunal did not have jurisdiction to hear the complainant because it had been lodged out of time and the President had not exercised his discretion to accept it. On that basis the Appeal Panel concluded that the Tribunal should have upheld the s 111 application. In these circumstances, the Appeal Panel did not deal with the second ground of the appeal in relation to the substance of the complaint.

5 Mr Mooney subsequently re-lodged his complaint with the President of the ADB. Pursuant to s 88(4) of the AD Act, the President accepted the complaint even though it had been lodged out of time. On 18 June 2002, the Acting President of the ADB declined the complaint as ‘lacking in substance’ under s 90(1) of the AD Act. On 12 August 2002, at Mr Mooney’s request, the President of the ADB referred the complaint to the Tribunal.

6 Despite initially relying on direct and indirect discrimination on the grounds of age and disability, Mr Mooney ultimately confined his complaint to one of direct discrimination on the grounds of age and disability. The relevant statutory provisions are set out below.

Direct age and disability discrimination

7 The definition of direct disability discrimination is contained in s 49B of the AD Act. That provision states that:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
. . .

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

(3) . . .

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

The definition of direct age discrimination is in similar terms:

(1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of age if, on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or
. . .

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

8 To constitute a breach of the AD Act, conduct must not only fall within the definition of discrimination, it must fall within an area of activity covered by the legislation. The area of activity to which this complaint relates is discrimination against employees. In particular, the complainant maintains that he has been discriminated against in relation to the terms and conditions of his employment and by being constructively dismissed. The relevant parts of s 49D are set out below:

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

9 The age discrimination provisions in relation to employees are in similar terms. In particular, the complainant relies on the following provisions of s 49ZYB:

(2) It is unlawful for an employer to discriminate against an employee on the ground of age:
(a) in the terms or conditions of employment that are afforded to the employee, or
. . .
(c) by dismissing the employee . . .

10 In summary, the conduct which Mr Mooney alleges was discriminatory was:

· the imposition of a requirement to provide medical certificates for sick leave of less than three days;

· the imposition of a requirement to provide medical certification for sick leave over longer periods than 3 days;

· the imposition of counselling on numerous occasions;

· giving of disciplinary warnings during that counselling;

· work place harassment by Inspector Clarke and other officers leading to a “poisoned” work environment; and

· the cumulative effect of the above leading to resignation.

11 Mr Mooney’s disability and age. It was not in dispute that Mr Mooney has a “disability” within the meaning of that term in s 4 of the AD Act. In particular, Mr Mooney has, or has had in the past, gall bladder disease, abdominal pain, osteo-arthritic knees, migraines, viral infections, gastrointestinal problems, diarrhoea and a chest infection. It was the applicant’s case that Mr Mooney was discriminated against, not on the ground of his disability per se, but on the ground of a “characteristic that appertains generally to persons who have that disability.” That characteristic was said to be that Mr Mooney required substantial amounts of sick leave.

12 Mr Mooney was born on 31 May 1930 and is currently 72 years old. In August 1995, when Mr Mooney resigned, he was 65 years old.

13 Sick leave policy. Selected part of the sick leave policy are set out below:

Policy statement

Sick leave is provided for staff who are unable, for a period, to attend work due to illness or injury. Staff are entitled to a prescribed amount of paid leave.

Commanders/Managers must take a direct interest in the attendance pattern of staff members as part of the ongoing management of the work performance of staff under their control.

Medical Certificates

Where an officer is absent for more than three (3) consecutive days, a medical certificate is required to be submitted to the Manager/Commander.

. . .

Ongoing Commanders/Managers Responsibilities

Commanders/Managers are responsible for the provision of safe systems of work for all staff members. This responsibility includes the following activities:

· Provision of demonstrative support and assistance for staff who are sick or have an injury (eg to arrange to have officers visited at regular intervals during hospitalisation.)

· Monitor attendance pattern of officers and provide assistance where difficulties are identified;

. . .

Multiple Absences of Less than Three Days

Officers who are absent on sick leave on more than four occasions in any one calendar year may, at the discretion of the Commander or Manager, be required to provide a medical certificate for any future sick leave absences until a satisfactory attendance pattern is established.

Commanders/Managers are to review the attendance of staff in these situations at least every three months.

Absences are to be monitored as individual leave entries are made. When a staff member’s sick leave record has reached an unsatisfactory level, the matter is referred by the officer responsible for recording the absence in the Service/Register/Leave Card to the appropriate Commander/Manager for action.

The Commander/Manager or nominee will, at the earliest opportunity, then arrange an interview between the relevant supervisor and the staff member. During this interview, the person will be reminded of the Police Service Sick Leave Policy and be given the choice to discuss any health issues on a confidential basis.

The interview is to cover the following points:

Advise the staff member that their Sick Leave Record is under review.

Determine whether any special circumstances exist or were in existence during that period. Where a recurrent condition is given as the reason, a doctor’s certificate or report, outlining the condition and the expected duration of treatment, is to be requested.

Advice is to be given and confirmed in writing to the staff member that the supply of medical certificates for absences claiming illness or injury is required until further notice.

Where appropriate, the staff member is to be advised with confirmation in writing that their Sick Leave Record is considered to be unsatisfactory.

Advice that unsatisfactory sick leave may adversely affect:

Promotional opportunities
Increments and confirmation of appointment (for Administrative Officers/Probationary Constables)
Retention of service in the case of Temporary and Ministerial Employees
Career development opportunities (including the opportunity to relieve in higher positions)
The report on conduct and services for transfer purposes
The use of Peer Support Officer to assist in this process, is advocated. Once the attendance pattern is considered satisfactory by the Commander/Manager or nominee, the requirement to provide a medical certificate for every absence claiming illness can be withdrawn. Such action should be confirmed in writing to the staff member.

14 The “prescribed amount of paid leave” referred to under the heading “Policy Statement” was 15 days per calendar year. Mr Mooney never exceeded this entitlement.

15 We agree with Ms Winters’ submission on behalf of the respondent, that although the text under the heading, “Multiple Absences of Less than Three Days” is not clearly expressed, it is intended to mean that officers who are absent on sick leave on 5 or more “occasions” in any one calendar year (that is, from January to December) may, at the discretion of the Commander or Manager, be required to provide a medical certificate for any future sick leave absences. Ms Winters agreed that the policy had not been applied on a calendar year basis but on the basis of any 12 month period.

16 The word “occasions” must be given a meaning consistent with the context in which it appears. It is clear from that part of the policy which relates to “Medical Certificates” that a medical certificate is only required if a person is absent for four or more consecutive days. The Heading “Multiple Absences of Less than Three Days” was probably intended to read “Multiple Absences of Three days or less” given the policy in relation to the provision of medical certificates relates to absences of four days or more. Putting this inconsistency to one side, in our view, the text under that heading relates to occasions during which an officer is absent for 3 days or less on 5 or more occasions during a calendar year without providing a medical certificate for those absences.

17 In those cases, the attendance pattern is considered “unsatisfactory” and the Commander or Manager may require the employee to provide a medical certificate for any future sick leave absences until a “satisfactory attendance pattern is established.” Apart from the references to unsatisfactory sick leave under the heading “Multiple Absences of Less than Three Days” there is no other mention of unsatisfactory attendance in the remainder of the policy. Nor is there any other reference to negative consequences of taking sick leave, either with or without a medical certificate.

18 One significant defect in the policy, which has given rise to misunderstandings in its application, is that there is no definition of an unsatisfactory sick leave record. We have interpreted that term as relating to five or more absences for a period of 3 days or less in a calendar year without a medical certificate. In those circumstances, the Commander or Manager has a discretion to require the provision of medical certificates until the pattern of attendance is considered satisfactory. This is the only situation referred to in the policy which would trigger a requirement to provide medical certificates.

Chronology of events

19 Mr Mooney and Andy Wright, industrial officer with the respondent, provided affidavits. Objection was successfully taken to parts of those affidavits, but neither Mr Mooney nor Mr Wright was required for cross-examination. The respondent did not lead any evidence. Consequently there is virtually no dispute as to the facts.

20 Mr Mooney is an accountant who began working for the respondent in January 1988. For a period prior to 1994, his supervisor was Acting Commander Wormleaton but in September 1994 Inspector Robert Clark took over as his supervisor. Mr Mooney had previously worked with Inspector Clark. In his letter of complaint to the ADB, Mr Mooney referred to an incident in the early 1990s when Inspector Clark and two other officers sought to gain access to the office after hours. Mr Mooney did not open the door for them, as he had been instructed not to allow people to enter the office after the police officers had finished for the day. Mr Mooney set out what happened in the aftermath of that incident and concluded that “I consider that the above incident is the catalyst for the events that follow.” Mr Mooney did not mention this incident in his affidavit.

21 On 12 May 1993 an officer in the Personnel and Staff Branch of the respondent wrote a memo to Commander Walsh stating that Mr Mooney’s sick leave record had been reviewed. The letter stated that his record was in excess of the sick leave policy guidelines. It appears from the sick leave records that Mr Mooney had been absent on 5 occasions during the previous 12 months without providing a medical certificate. That situation prompted the Personnel Directorate to apply the sick leave policy by writing to Commander Walsh in the following terms:

Mr Mooney should be advised of the need to maintain a satisfactory attendance record as failure to do so could have an adverse effect on their: (i) payment of increment; (ii) prospects of promotion/transfer; (iii) confirmation of appointment; (iv) result in further disciplinary action; (v) retention of service if a temporary employee.

22 The letter also requested that Mr Mooney endorse the memo. Mr Mooney signed the memo on 12 May 1993 after meeting with Commander Walsh. Mr Mooney said that he received “counselling”. There is no evidence of the nature or content of this "counselling”. Commander Walsh wrote on the bottom of the memo from Personnel and Staff Branch:

I recommend no further action in relation to this matter. I am satisfied that the period/s taken off as sick by Mr Mooney are justified. The periods he has been off sick have not had a detrimental effect on this work. He continues to be a valuable member of this section.

23 On 22 March 1994, following several occasions of sick leave during the previous 12 months without the provision of a medical certificate, the Personnel Directorate wrote a second memo in the same terms to Acting Commander Wormleaton. Mr Mooney endorsed this memo on 23 March 1994 and Acting Commander Wormleaton wrote on the bottom of the memo:

I recommend no further action in this matter. I am satisfied the periods of leave taken were bona fide. Mr Mooney’s work has not suffered adversely by the periods of leave and he is still a valuable member of staff.”

24 Mr Mooney said that he was subjected to “another counselling session but again there is no further evidence of what Acting Commander Wormleaton told Mr Mooney at that time.

25 In September 1994 Inspector Clark took over as Mr Mooney’s supervisor on a rotating basis, however Mr Mooney continued to consult his previous supervisor, Acting Commander Wormleaton about most work matters. In July and August 1994 Mr Mooney was absent from work on two occasions, one for 5¾ days and the other for 7 days in relation to gall bladder problems. Mr Mooney provided medical certificates in relation to these absences. He also took 19 days annual leave during this time to recover from surgery. Mr Mooney returned to work on 19 September 1994. On that day Acting Commander Wormleaton asked him to provide copies of his medical certificates to Detective Inspector Mellis.

26 Acting Commander Wormleaton told Mr Mooney that Inspector Clark was the instigator of a complaint about his sick leave record. Because that evidence is hearsay, and neither Acting Commander Wormleaton nor Inspector Clark gave evidence, it was admitted only in relation to the fact that it was said, not as to its truth. Acting Commander Wormleaton also told Mr Mooney that “Because of the sick leave you have taken, they say that you will need to appear before medi-check to assess your fitness.” Mr Mooney replied that he would be only too happy to do so.

27 According to Mr Mooney, from the day he returned to work in September 1994, his relationship with Inspector Clark was not positive. He said Clark acted disdainfully towards him and that this contrasted with their earlier good working relationship.

28 On 21 September 1994 Acting Commander Wormleaton sent a memorandum to the Commander Operations Support with a view to having Mr Mooney examined by Healthquest to determine his fitness to continue in the present role. Mr Mooney was never shown this or any of the subsequent correspondence relating to Healthquest and was never requested to attend at Healthquest.

29 A letter from Chief Superintendent McIntosh to the Manager of Personnel Services Branch on 14 October 1994, requested that Mr Mooney be referred to Healthquest because:

The continued absences of Mr Mooney have created significant problems for the Commander and Officers of the Group to the extent that professional assistance is continually being sought from both internal and external agencies so as to comply with legislative requirements.

30 A memorandum dated 8 November 1994 from Rod Kammel, Assistant Personnel Officer, to Senior Co-Ordinator of Personnel Mr Milner, stated that “Over the past 12 months, Mr Mooney has taken sick leave on 13 separate occasions totalling 31 days which were all supported by medical certificates. The previous 12 months was also excessive with 17 occasions totalling 14 ¾ days.” Mr Kammel commented that “It should be noted that Mr Mooney is 64 years of age and that he may opt to retire in the near future.” Mr Kammel made the following recommendations:

Mr Mooney be counselled by personnel regarding this unsatisfactory sick leave record.

Mr Mooney be directed to provide medical certificates for all absences claiming illness as the reason until further notice.

31 Mr Milner, the Senior Co-ordinator Personnel, counselled Mr Mooney on 11 November 1994 and produced a file note recording that session. He advised Mr Mooney that his sick leave record was considerably outside the current Police Service sick leave policy. He noted that “he is aware that a poor sick leave record can affect service checks, promotion, transfer, increments etc. Mr Mooney provides medical certificates for his absences.” Mr Milner concluded that following Mr Mooney’s explanation for his absences and the fact that since the operation he has not had a sick leave absence, there was no need to refer him to Healthquest. He recommended that Mr Mooney’s sick leave continue to be monitored and reviewed in three months time.

32 In his confirmatory letter to Mr Mooney dated 1 December 1994, Mr Milner told Mr Mooney that it was his responsibility “to attend for duty regularly and reliably” and that failure to do so “may result in disciplinary action.” These words are taken from the sick leave policy and relate to the situation where there are multiple absences of 3 days or less without a medical certificate.

33 Mr Mooney said that the letter of 1 December 1994 did not reflect his understanding of what had occurred in the interview. He interpreted the 1 December 1994 letter as concluding that his record was unsatisfactory and that his employment was threatened if it remained “unsatisfactory.”

34 According to Mr Mooney, from early January 1995, staff who had previously been friendly appeared hostile and unwilling to say hello. On 13 March 1995 Acting Commander Wormleaton told Mr Mooney that Inspector Clark had said he was incompetent and that he had been taking tea breaks and reading the newspaper during work time. This evidence was admitted only as to the fact that it was said, not as to its truth.

35 On 16 March 1995, Personnel Services Branch undertook a further review of Mr Mooney’s sick leave. That review showed that Mr Mooney had taken ½ day sick leave on 5 December 1994, and that his overall record in the past 12 months is 10 occasions totalling 25 days. Mr Kammel commented that “whilst his sick leave has improved, his overall record is still outside the limit of 4 occasions in a 12 month period.” Mr Milner wrote to Mr Mooney on 11 April 1995 advising him that “a sustained improvement needs to be made” and requiring him to provide medical certificates for all absences until further notice.

36 On 4 April 1995 Acting Commander Wormleaton told Mr Mooney that Inspector Clark said he would not take further action against Mr Mooney. Inspector Clark also told Acting Commander Wormleaton that he would leave the matter for the Fraud Enforcement Agency which was about to take over the command on 1 July 1995 as part of a general restructure of the section.

37 On 31 May 1995 Mr Mooney turned 65 and began to receive a fortnightly pension from the State Super Fund in addition to his salary. By this time he said that the atmosphere at work was very tense and a number of people had asked him when he would be resigning.

38 On 5 July 1995, Personnel Services Branch generated a memo to Inspector Clark in relation to the review of Mr Mooney’s sick leave record. Mr Mooney’s record at that stage was that he had taken a total of two days sick leave since 20 March 1995, and a total of 2 ½ days since 19 September 1994. Inspector Clark recommended that Mr Mooney “continue to supply medical certificates on each occasion he is on sick report for the next six months.” Mr Mooney said that he had hoped for a more positive outcome given the small amount of sick leave he had taken since September 1994. He was under the impression that his sick leave record was still “unsatisfactory”.

39 On 17 July 1995, Mr Mooney told Wormleaton that he was going to resign. Mr Mooney went on annual leave on 18 July 1995. His letter of resignation, dated 21 July 1995, stated, in part that: “Resulting from my age, I have been the subject of harassment and discrimination from Robert Campbell Clark with the result I am compelled to give this notice of my early resignation.” Mr Mooney’s resignation took effect from18 August 1995.

Allegations of discrimination

40 There is no dispute that the events outlined above which occurred while Mr Mooney was employed with the respondent come within the definition of “terms or conditions of employment which the employer affords the employee” in s 49D(2)(a). Similarly allegations in relation to age discrimination come within the definition of “the terms and conditions of employment that are afforded to the employee” in s 49ZYB(2)(a) of the AD Act.

41 The respondent denied that any of its conduct comes within the meaning of being “dismissed” either under s 49D(2)(c) or under s 49ZYB(2)(c). In Commissioner of Police, NSW Police Service v Mooney (EOD) [2001] NSWADTAP 20, the Appeal Panel considered the question of constructive dismissal in order to determine the date on which the alleged breach of the AD Act took place. The Appeal Panel said, at [14] and [15], that:

That leaves the alleged contravention constituted by the complainant's "constructive dismissal" under s 49(2)(c) and s 49ZYB(2)( c). The law in relation to "constructive dismissal" has developed primarily in the industrial relations jurisdiction, and has been applied in the human rights and equal opportunity jurisdiction when a complainant alleges dismissal as an act of discrimination: see Librizzi v Flower Power Pty Ltd [1999] HREOCA 5. The general principles relating to "constructive dismissal" were set out in Allison v Bega Valley Council (1995) 63 IR 68. Of particular relevance to this matter is the following:-
"Although the term 'constructive dismissal' is quite commonly used, it can deflect attention from the real inquiry. That should involve an analysis of what occurred. Did the employer behave in such a way as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so, despite, on the face of it, the employee appears to have given his or her resignation? ...... Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was freely given and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed." (emphasis added)
It is clear from these principles that the "dismissal", which is the allegedly discriminatory act, is the act of resignation, not the date upon which the resignation might take effect. The complainant formally tendered his resignation on 21 July 1995, although he had in fact considered the contract of employment at an end on 17 July 1995.

42 In this case Mr Mooney initiated the termination of the contract by tendering a letter of resignation. He alleged in that letter that he had been the subject of harassment and discrimination and felt compelled to give notice of his early resignation. The conduct to which Mr Mooney was referring is the disdainful manner in which Inspector Clark acted towards him and being counselled about his “unsatisfactory” sick leave record.

43 There were three occasions between November 1994 and July 1995 when Mr Mooney’s sick leave record was reviewed. The first involved Mr Milner in November and December 1994, the second involved Mr Kammel in March 1995 and the third involved Inspector Clark in July 1995.

44 Mr Milner told Mr Mooney on 11 November 1994 that his “poor sick leave record” could affect employment benefits and opportunities for promotion. He also said that he should attend for duty regularly and reliably otherwise disciplinary action could be taken. We note that Mr Milner misunderstood the sick leave policy because this advice is not in accordance with that policy. Mr Mooney had not taken more leave than he was entitled to take and he had provided medical certificates for his absences. Mr Mooney justifiably interpreted the confirmatory letter relating to his meeting with Mr Milner as meaning that his employment was threatened if his sick leave record remained “unsatisfactory”, that is, if he continued to take substantial amounts of sick leave even if that leave was supported by a medical certificate.

45 In March 1995 Mr Kammel demonstrated his misunderstanding of the sick leave policy by noting that Mr Mooney’s sick leave record was “outside the limit of four occasions in a 12 month period.” There is no limit on the amount of sick leave a person can take apart from the limit of their 15 day a year entitlement. Mr Kammel’s written warning that “a sustained improvement needs to be made” added to the pressure Mr Mooney already felt, as a result of his sick leave record.

46 On 5 July 1995 Inspector Clark recommended that Mr Mooney continue to supply medical certificates on each occasion that he is on sick report for the next six months. Again, this recommendation was outside the sick leave policy requirements and it is understandable that Mr Mooney had hoped for a more positive outcome given the small amount of sick leave he had taken. He was left with the impression that his sick leave record was still “unsatisfactory”.

47 Mr Mooney turned 65 and became entitled to a pension from the State Super Fund in May 1995. Mr Mooney outlined in his affidavit, the events leading up to his resignation. He said that after the events in July 1995 and the hostility in the office “I had decided that I could not continue working under Clark and did not want to have to return to the office.” He said that prior to the events from September 1994 to his resignation in July 1995 he had intended to continue to work for a further 1 to 2 years. Mr Mooney said that he intended to re-assess the situation annually after the age of 65 and then decide when to retire.

48 We are satisfied on the basis of all Mr Mooney’s evidence (none of which was challenged) that the conduct of the respondent’s employees put pressure on Mr Mooney to resign. He was repeatedly given the impression that his sick leave record, per se, was unsatisfactory and that disciplinary action could follow if it did not improve. Mr Mooney was in no position to “improve” his sick leave record because his disabilities meant that he needed to take substantial amounts of sick leave. In those circumstances his resignation was not freely given and the conduct referred to above was the real and effective initiator of the termination of his contract of employment. His resignation was, in effect, a response to and consistent with a desire by the respondent that such resignation be forthcoming.

Direct age discrimination

49 In order to establish that any of the conduct outlined above constitutes unlawful discrimination on the ground of age, the following questions must be addressed:

· Did any of the respondent’s employees, treat Mr Mooney less favourably than in the same circumstances or in circumstances which are not materially different, he or she treats or would treat a person who is not of that age or age group?

· If so, was that treatment “on the ground of” Mr Mooney’s age?

· Was the employer vicariously liable for this conduct?

50 Leaving to one side the question of whether there was less favourable treatment, there is some evidence that age may have been a factor in decisions concerning Mr Mooney. Firstly, Rod Kammel, Assistant Personnel Officer, made a comment in a memo dated 8 November 1994, that “It should be noted that Mr Mooney is 64 years of age and that he may opt to retire in the near future.” This comment was made in the context of a discussion about the extent of Mr Mooney’s sick leave. We agree with the respondent’s submission that this remark is merely a “passing comment” and that no inference can be drawn that a decision was made or not made, on the basis of Mr Mooney’s age.

51 Similarly, questions from staff members as to when Mr Mooney was going to resign after he turned 65, were not comments which could give rise to an inference that Mr Mooney’s age was a factor in any treatment of him by the respondent. Given the absence of any causal link between what happened to Mr Mooney and his age, the complaint of age discrimination is dismissed.

Direct disability discrimination

52 The complaint of disability discrimination relies on ‘a characteristic that appertains generally to persons who have that disability.” The characteristic is said to be that Mr Mooney required substantial amounts of sick leave.

53 The first question is whether the requirement of substantial amounts of sick leave is a characteristic that appertains generally to persons who have Mr Mooney’s combination of disabilities. Mr Mooney submitted that it is clear from his sick leave records, and the medical certificates he produced, that he did take large amounts of sick leave and that the leave was necessary because of his disabilities.

54 Ms Winters, representing the respondent, submitted that Mr Mooney’s sick leave record of 5 days in 1990, 17 days in 1991 and 12 ¾ days in 1992 was not substantial, but normal. According to Ms Winters, Mr Mooney’s sick leave only reached the level of being “substantial” in 1993 and 1994 when he took 19 days and 26 ½ days of leave respectively.

55 The amount of sick leave Mr Mooney’s took during the period 1990 to 1995, fluctuated significantly. Between the date Mr Mooney returned to work in September 1994 and the date of his resignation on 18 August 1995, he took only 2 ½ days of sick leave. Nevertheless, we are satisfied that overall, Mr Mooney’s sick leave record reflects the fact that he had a tendency to take substantial amounts of sick leave at least during the period 1992 to 1995, when the sick leave policy was in place.

56 The next question is whether it is a characteristic generally appertaining to people with the same or substantially the same disability as Mr Mooney that they have a tendency to take substantial amounts of sick leave. The inclusion of people with “substantially the same disability” as Mr Mooney is derived from s 49B(4) which states that:

A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

57 “Characteristic” is defined in the Macquarie Dictionary, 3rd edition (The Macquarie Library) as “a distinguishing feature or quality”. In State Transit Authority v Sloey & Anor [1999] NSWSC 47 Barr J considered a finding by this Tribunal that the actions of the respondent in that case were on the ground of a characteristic generally appertaining to people with a heart condition, namely that they have bypass surgery. Barr J said that if it was appropriate for the Tribunal to consider whether the State Transit Authority discriminated on the ground of a characteristic that appertained generally to persons who had the disability rather than on the ground of the disability itself, the “the proper question for the Tribunal to answer was whether it was a distinguishing peculiarity or quality of persons suffering blockage of a coronary artery that they often underwent coronary artery graft surgery.” Barr J concluded that “any tendency of such patients to undergo such surgery may be described, without straining the ordinary meaning of the words, as a characteristic or a distinguishing peculiarity or quality that they have.” (para 32)

58 This reasoning is applicable to the present case. The Tribunal must ask whether it is a distinguishing peculiarity or quality of persons suffering from Mr Mooney’s disabilities that they have a tendency to take substantial amounts of sick leave. There was no evidence supporting this proposition apart from the evidence of Mr Mooney’s sick leave. However, to use Barr J’s language in Sloey’s case, it is not straining the ordinary meaning of the words, to describe a tendency to require substantial amounts of sick leave as a characteristic or a distinguishing peculiarity or quality that people with the same disabilities as Mr Mooney have.

59 Less favourable treatment. Mr Mooney must establish that he has been treated less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treats or would treat a person who does not have that disability. There was no evidence of how the sick leave policy, or any other leave policy, was applied to any employee other than Mr Mooney, therefore there is no actual person with whom Mr Mooney can be compared. In that situation a hypothetical comparator can be used.

60 According to Mr Beckett, representing Mr Mooney, a hypothetical comparator would be a person employed in the same position as Mr Mooney and at the same time, but who did not have Mr Mooney’s disabilities or any characteristic generally appertaining to those disabilities.

61 In order to identify the appropriate attributes of any comparator, the Tribunal must apply s 49B. Section 49B(2) states that “for the purposes of s 49B(1)(a), something is done on the ground of a person’s disability if it is done on the ground of a characteristic that appertains generally to persons who have that disability.” When discrimination “on the ground of a characteristic etc” is substituted for discrimination “on the ground of disability” in s 49B(1)(a), confusion arises as to the intended attributes of the comparator. On one reading, the comparator must be a person who does not have “that disability” rather than a person who does not have the characteristic.

62 In IW v City of Perth P37/1996 (12 November 1996) Toohey and Kirby JJ considered this issue when interpreting a similar provision to s 49D(1)(a) of the AD Act namely s 66A of the Equal Opportunity Act1984 (WA). In that case, the High Court did not need to define the characteristics of the comparator, because the matter was resolved on the basis of the definition of “services’ in the legislation. However Toohey and Kirby JJ made obiter remarks on the question of the appropriate attributes of the comparator.

63 In cases relying on “characteristics” rather than the disability itself, both Toohey and Kirby JJ considered that s 66A of the Western Australian Act, should be interpreted as requiring a comparator who does not have the characteristic in question. Toohey J made obiter remarks at p 34, that in making the comparison, the “characteristics” are to be ignored. In other words, where “characteristics” are relied on, the comparator is a person who does not have the characteristic that appertains generally to persons who have that disability. According to Toohey J, any other approach would render the Act ineffective. At p 67 Kirby J agreed that while the construction to be given to s 66A of the Western Australian Act is not “unarguably clear” a number of considerations support the view that the comparator does not have the characteristic that the aggrieved person has. One of those considerations, discussed at p 69, is that “To hold otherwise is to accept that the Act on the one hand acknowledges the way in which people discriminate undesirably on the ground of stereotyped characteristics whilst withholding a remedy where such discrimination is shown. Because that cannot have been the intention of Parliament, it is not the construction of s 66A(1) which I would favour.”

64 Although Toohey and Kirby JJ did not need to decide this issue, their remarks are persuasive. To interpret the AD Act in any other way would, as the Justices point out, render the legislation ineffective whenever characteristics, rather than the disability itself, are relied on as the ground for the discriminatory treatment.

65 The Tribunal must now ask itself whether any employees of the respondent treated Mr Mooney less favourably than they would have treated a person who did not have a tendency to require substantial amounts of sick leave, in the same circumstances, or in circumstances which are not materially different.

66 The circumstances which form the basis of the comparison cannot be the same circumstances as Mr Mooney faced because, by definition, the comparator does not have a tendency to take substantial amounts of sick leave. The characteristic itself cannot be used as the basis for concluding that the circumstances are not the same or are materially different. This point was recognised by the Human Rights and Equal Opportunity Commission in Sullivan v Department of Defence (1992) EOC 92-421 at 79.005:

It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.

67 The Federal Court has acknowledged this point. (See, for example, Commonwealth of Australia v The Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-566 at 77,106 per Wilcox J.)

68 Circumstances in which an employee of the respondent required substantial amounts of leave, other than sick leave, would not be materially different. For example, a person may require substantial amounts of family and community services leave, maternity leave, study leave or leave without pay. As with sick leave, an employee’s entitlements to these kinds of leave would be governed by awards, enterprise agreements and departmental policies. The respondent would need to be satisfied that the leave was being taken for the purpose for which it was provided, that documentation was available on request and that it was not misused. Just as the sick leave policy requires Commanders/Managers to take a direct interest in the attendance pattern of staff members, so Commanders/Managers would be expected to take a direct interest in the attendance pattern of staff members taking other kinds of leave.

69 Treatment in May 1993 and March 1994. The “counselling” of Mr Mooney in May 1993 and March 1994 was prompted by the fact that he had taken sick leave on at least five occasions in the previous 12 months without a medical certificate. This situation justifiably prompted the respondent to take action to ensure that Mr Mooney was not abusing his entitlement to sick leave. We are satisfied that if there was a legitimate suspicion that an employee taking family and community services leave, maternity leave, study leave or leave without pay, the respondent would have acted in a similar way. In any event, there was no adverse consequence to Mr Mooney in relation to these “counselling” episodes. Consequently, the applicant has not established any “less favourable treatment” in relation to these episodes and this aspect of the complaint is dismissed.

70 Treatment from November 1994 to the constructive dismissal. We have set out above at [42] to [45] the three occasions from November 1994 to July 1995 in which Mr Mooney was counselled about his sick leave. We have concluded that the sick leave policy was misinterpreted and that Mr Mooney was given the impression that his sick leave record, per se, was “unsatisfactory” and that he was somehow expected to “improve” this record. There was never any suggestion that Mr Mooney’s requirement for leave was not genuine. He was also told that a continuation of his “excessive” sick leave may result in disciplinary action.

71 There were repeated miscalculations (in terms of the calendar year requirement) and misapplications of the sick leave policy in relation to Mr Mooney's sick leave absences. The result was that Mr Mooney was required to provide medical certificates for all absences and was counselled and explicitly warned on at least three occasions about his “unsatisfactory” sick leave record. This pressure ultimately resulted in Mr Mooney’s resignation which we have characterised as a constructive dismissal.

72 The respondent submitted that Commanders and Managers were merely complying with their obligation under the sick leave policy to “take a direct interest in the attendance pattern of staff members as part of the ongoing management of the work performance of staff under their control.” While the suggestion that Mr Mooney attend Healthquest for an assessment as to his fitness may fall within the concept of “ongoing management of work performance”, the other conduct of the respondent in relation to Mr Mooney went much further than managing work performance. The effect of the conduct of the Managers and Commanders was to put unnecessary and unfair pressure on Mr Mooney merely because he had a tendency to take substantial amounts of sick leave.

73 In our view, the respondent would not have treated an employee who took substantial amounts of family and community services leave, maternity leave, study leave or leave without pay to which they were entitled, as unfavourably as it treated Mr Mooney. From November 1994, there was no legitimate suspicion that Mr Mooney was misusing his sick leave. He did not exceed the leave to which he was entitled. Yet he was counselled on several occasions and told that his sick leave record was “unsatisfactory” and that adverse consequences may follow if that record continued. This conduct eventually resulted in his constructive dismissal. Comparable employees would not have been treated in that way.

74 Causation. The next element of direct disability discrimination is that the treatment must be “on the ground of” Mr Mooney’s characteristic. Under s 4A of the AD Act, it is sufficient if “one of the reasons consists of unlawful discrimination . . . whether or not it is the dominant or a substantial reason for doing the act.” It is self evident that Mr Mooney was required to provide medical certificates after November 1994, subjected to counselling and warned of the consequences of a continuing “unsatisfactory” sick leave record, because of his tendency to take substantial amounts of sick leave. Similarly the constructive dismissal occurred because of that characteristic. Consequently this treatment was “on the ground of” a characteristic that appertains generally to people with his disabilities.

75 Liability. Under s 53 of the AD Act, the respondent is vicariously liable for the discriminatory acts of its employees unless they did not “either before or after the doing of the act, authorise the . . . employee, either expressly or by implication, to do the act.” The respondent did not rely on the exception in s 53. Consequently this aspect of the complaint is substantiated.

Alleged harassment by Inspector Clarke and other officers

76 The evidence of harassment was that Inspector Clark was “disdainful” of Mr Mooney after he returned to work in September 1994 and that from early January 1995, staff who had previously been friendly appeared hostile and unwilling to say hello. There was also evidence relating to staff meetings and being moved to another desk. Much of the evidence of alleged harassment was hearsay and was not admitted.

77 In his letter of complaint, Mr Mooney concluded that the incident in which he refused Inspector Clark and others access to the office after hours was “the catalyst for the events that follow.” That incident does not relate to Mr Mooney’s disability or a characteristic appertaining generally to people with that disability. In our view there is no causal connection between the alleged harassing conduct and Mr Mooney’s disability and this aspect of the complaint is dismissed.

Orders sought

78 After the hearing of this matter, the applicant sought leave to tender further evidence in relation to economic loss. The respondent did not consent to this course of action, but suggested that, if the applicant was successful in substantiating his complaint, the matter be re-listed for the purpose of tendering further evidence. The respondent foreshadowed that it was likely that Mr Mooney would be required for cross- examination. Since the complaint has been substantiated, we make the following directions:

1. Applicant to file and serve further evidence in relation to the orders the Tribunal should make within 28 days of the date of this decision.

2. Respondent to file and serve any evidence in response within a further 28 days.

3. Registry to re-list the matter in consultation with the Tribunal members and the parties on the question of the appropriate orders that should be made, if any.