Nunn v Commissioner of Police, NSW Police Force

[2011] NSWADT 263

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Nunn v Commissioner of Police, NSW Police Force [2011] NSWADT 263
Hearing dates:	8 November 2011
Decision date:	15 November 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	The applicant's application for leave to proceed is refused.
Catchwords:	LEAVE - complaint of past disability discrimination declined as lacking in substance - whether fair and just for complaint to proceed -
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Category:	Interlocutory applications
Parties:	Claire Nunn (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel P Lowson (Applicant) Blake Dawson (Respondent)
File Number(s):	111094

REasons for decision

Introduction

1. EQUAL OPPORTUNITY DIVISION (N HENNESSY , LCM (DEPUTY PRESIDENT)): The issue in these proceedings is whether the Tribunal should give Ms Nunn permission for her complaint of disability discrimination, under the Anti-Discrimination Act 1977 ( AD Act ) to proceed. The complaint, which is against the Commissioner of Police, NSW Police Force (NSWPF) was declined by the President of the Anti-Discrimination Board.

1. Ms Nunn complains that her application to re-join the NSWPF was refused on the ground of a past or imputed past disability. She was previously employed as a constable with the NSWPF but resigned on 18 August 2007. At the time she was suffering from post traumatic stress disorder (PTSD) but says she has now recovered. Ms Nunn explains the circumstances of her resignation in her initial letter of complaint to the Anti-Discrimination Board:

In August 2007, I resigned from my role with the NSW police as my husband was working in Queensland at the time. We had lived separately for a time, with me travelling to Queensland when my work provided sufficient time off (rostered breaks). This was too demanding on us and our relationship, prompting my resignation just short of five years service, so I could move to be with him.

1. NSWPF maintain that her application for re-employment was refused because of two issues relating to her integrity, not because she had previously suffered from PTSD. The first issue was that on 10 July 2007 Ms Nunn tendered a worker's compensation certificate to her manager which identified "a series of stressful work incidents" as the reason she was suffering from post traumatic stress disorder. In fact, Ms Nunn did not suffer a series of stressful work incidents and the claim for workers compensation was refused. The second issue was said to be that after her application was initially refused two people made anonymous disclosures which raised additional concerns about her integrity.

1. Ms Nunn says that these reasons are not genuine or, at least, are not the only reasons for the refusal and that one of the reasons was that she had suffered from PTSD.

Leave to proceed necessary

1. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 . When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint is frivolous, vexatious, misconceived or lacking in substance.

1. In Ekermawi Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that:

Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave , where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

1. The onus is on the applicant to satisfy the Tribunal that leave should be granted.

Background

1. Following Ms Nunn's application to re-join the NSWPF a medical assessment was arranged. She passed that assessment. The NSWPF says that background checks and a review of her earlier employment history were carried out and Ms Nunn was advised by letter of 12 August 2009 that her application had been unsuccessful. Although that letter was not before the Tribunal, I understand that it did not give a specific reason for the refusal of her application.

1. Ms Nunn wrote to the NSWPF again and was advised, in a letter dated 30 November 2009, that the decision to refuse her application remained unchanged. The reason for the decision was said to be "based on internal information of an adverse nature pertaining to your suitability for policing in terms of your previous service." It was said that,

This information is confidential in nature and as such I am not at liberty to divulge the details to you.

1. Subsequently, the NSWPF's lawyers have provided a copy of the material to Ms Nunn's lawyers on a confidential basis.

1. By letter of 6 May 2010 the NSWPF advised Ms Nunn that an appointment had been arranged for her with the Professional Suitability Assessment and Review Committee (PSARC) for 21 June 2010 to reconsider her application. That letter stated, in part, that:

The interview will involve the panel asking you various questions relating to any incidents that have been identified through your professional suitability application and any subsequent enquiries.

1. Ms Nunn attended the interview and answered the questions asked of her. According to the NSWPF, the PSARC had the following documents before it when it made its decision:

(1)   Ms Nunn's application for re-employment;

(2)   All information provided to the NSWPF to support Ms Nunn's application, including references and her letter to the NSWPF dated 23 November 2009 in which she sought a review of the decision to refuse her application for re-employment;

(3)   Information provided by Illawarra Local Area Command;

(4)   The workers compensation certificate dated 10 July 2007 and associated paperwork;

(5)   The anonymous information that had been provided to the NSWPF referred to above; and

(6)   Her SAP profile, which included instances of "good police work" and complimentary remarks.

1. The PSARC recommended that Ms Nunn's application for re-employment be refused.

1. In September 2010 Ms Nunn wrote to the NSWPF saying that:

It wasn't until my PSARC review that I confirmed my sick leave prior to resigning was the reason the NSWPF was reluctant to accept my application. Had I known this prior to my PSARC review I could have prepared related correspondence. I was not aware that the medical certificate lodged by the Queensland doctor was a worker's compensation certificate, or that the claim was later rejected until my PSARC review.

As mentioned I had only just relocated to Queensland and therefore had never seen any Queensland doctor's certificate. I now understand what occurred and I can see that it would have looked like the claim was rejected so I just resigned, however this is not the case.

1. When responding to the NSWPF's letter to the Anti-Discrimination Board, Ms Nunn said in relation to the fact that she submitted a worker's compensation medical certificate that:

I have explained that in my state I must not have paid sufficient attention to the doctor's certificate submitted, which led to Allianz rejecting a "claim" for workers compensation.

1. She said the fact that she did not contest Allianz' decision not to accept her claim demonstrates that she did not intend to make such a claim.

1. Ms Lowson, representing Ms Nunn, said that if the matter were to proceed to hearing her client would give evidence that:

(1)   she lodged two workers compensation medical certificates -- the first, which was not signed by her, was a Queensland certificate and the second, which stated that she was incapacitated for work until 25 August 2007 was a New South Wales certificate and was signed by her;

(2)   she did not know that her manager had made any claim for workers compensation and did not receive a letter dated 19 July 2007 from Allianz, advising her that her claim had been rejected because she had changed address; and

(3)   she decided to resign on 4 August 2007, effective from 18 August 2007 and thus did not use a week of leave that had been approved.

Legal requirements for disability discrimination

1. If permission were given for the matter to proceed to a hearing, Ms Nunn would have to bring evidence to substantiate her complaint "on the balance of probabilities." Ms Nunn is alleging that the NSWPF has breached s 49D(1)(b) of the AD Act which provides that:

(1) It is unlawful for an employer to discriminate against an employee on the ground of disability:

. . .

(b) in determining who should be offered employment

1. What it means to discriminate on the ground of disability is set out in s 49B:

49B What constitutes discrimination on the ground of disability

(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

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

1. I understand that Ms Nunn is alleging direct discrimination as defined in s 49B(1)(a).

1. Consequently, in order to substantiate a complaint of disability discrimination, Ms Nunn would have to prove that:

(1)   she has a disability or imputed disability as defined in s 4 and s 49A;

(2)   NSWPF refused to offer her employment: s 49D(1)(b);

(3)   in the same circumstances, or in circumstances which are not materially different, a person without her past disability or imputed past disability would not have been refused employment (differential treatment): s 49B(1)(a); and

(4)   at least one of the reasons for not being offered employment was her past disability or imputed past disability (causation): s 49B(1)(a) and s 4.

Disability

1. Disability is defined in s 4 to include "a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour". It is likely that post traumatic stress disorder would come within that definition. Section 49A states that a disability includes a disability that a person "had in the past, or is thought to have had in the past".

Refusal to offer employment

1. There is no dispute that the NSWPF refused to offer Ms Nunn employment.

Differential treatment

1. The first component of the test for direct discrimination is the "differential treatment" test. The treatment afforded to Ms Nunn must be compared with the treatment that would have been afforded to a person who did not have a disability in the past or who the NSWPF did not think had a disability in the past.

1. Ms Nunn did not nominate a person whose treatment could be compared with the treatment she was given. When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the NSWPF treated Ms Nunn less favourably than a hypothetical person without a disability by determining that disability was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

Causation

1. To substantiate her complaint, at least one of the reasons for NSWPF refusing Ms Nunn's application for employment must be her past disability whether actual or imputed. There is no need for her to prove that the NSWPF intended to discriminate. Discrimination may not be conscious. The fact that the reason for the conduct is almost always within the respondent's knowledge makes it difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case.

1. In support of her submission that past or imputed past disability was one of the reasons for refusing to re-employ Ms Nunn Ms Lowson says:

(1)   there is no evidence that the initial decision made in August 2009 to refuse her application was made because of concerns about her integrity; and

(2)   the reasons that the NSWPF has given after the initial decision was made are ex-post-facto justifications.

1. In support of his submission that integrity issues were the reason for the decision Mr Lloyd, representing NSWPF says:

(3)   Ms Nunn passed the medical assessment which was undertaken after she applied to rejoin the NSWPF;

(4)   the integrity issue relating to the tendering of a workers compensation medical certificate was put to Ms Nunn during the course of the PSARC interview; and

(5)   the existence of confidential information relating to Ms Nunn's suitability for policing was disclosed to her on 30 November 2009.

Conclusion

1. The issue is whether it is fair and just for the complaint to proceed to a hearing. That issue depends largely on whether there is enough doubt about the stated reasons for the NSWPF's to make it fair for the complaint to proceed. I do not think that there is. The applicant's view that the fact that she suffered from PTSD is one of the reasons for the refusal is speculation on her part. The failure of the NSWPF to clearly identify the reason when the decision was initially made is regrettable but it does not necessarily mean that the reason was other than issues about her integrity. It is entirely plausible that the initial decision was made on the ground that false information was contained in the workers compensation medical certificate, that the PSARC was not satisfied with Ms Nunn's response to that issue and that PSARC had access to further confidential information which reflected adversely on Ms Nunn's integrity.

1. Ms Nunn is understandably aggrieved by the NSWPF's decision. She perceives it as being grossly unfair. However, even if it could be said that the process was not as transparent at it should have been, or was not justified on the facts, that does not raise sufficient doubt about the basis for the decision to make it fair for the complaint to proceed. The onus would be on Ms Nunn to prove her case if the matter went to hearing. It is highly unlikely that she would be able to prove that the reasons given by the NSWPF for refusing her application were not the genuine reasons for their decision.

Order

The applicant's application for leave to proceed is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 08 March 2012