WILLIAMS and COMMISSIONER OF POLICE - [2005] WASAT 349

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: WILLIAMS and COMMISSIONER OF POLICE [2005] WASAT 349

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR P McNAB (MEMBER)
MS K LANG (SESSIONAL MEMBER)

HEARD: 10 13 OCTOBER 2005
21 AND 23 NOVEMBER 2005

DELIVERED : 26 JUNE 2006

FILE NO/S: EOT 54 of 2004

BETWEEN: SIMON ANDREW WILLIAMS
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Police constable Posttraumatic stress disorder arising in part from undercover work Discrimination alleged in the work place on the grounds of impairment and family responsibilities Victimisation Complaints dismissed Negligence as victimisation rejected Discussion of equal treatment in relation to impairment discrimination

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 4(1), s 4(b), s 4(d), s 5, s 35A, s 35B(2)(b), s 35B(2)(d), s 36B, s 66A, s 66B, s 66B(2), s 66B(2)(b), s 66B(2)(d), s 66B(3), s 67, Pt V, s 93(1)(b), s 161
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

Disability Discrimination Act 1992 (Cth)

Result:

The Tribunal dismissed the applicant's complaints of discrimination and victimisation

Category: A

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr D Matthews

Solicitors:

Applicant: Self-represented
Respondent: State Solicitor's Office

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

Ghockson v Commissioner of Police (1996) EOC 92‑798
Haines v Leves (1987) 8 NSWLR 442
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
Preston v Carmody (1993) 44 FCR 1
Purvis v New South Wales (2003) 217 CLR 92
Regan v Kalgoorlie Taxi Car Owners Association Incorporated (1996) EOC 92‑844

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

The applicant in this case (Mr Simon Williams) was a police constable who suffered from an impairment, namely post traumatic stress syndrome. He complained under the Equal Opportunity Act 1984 (WA) that his employer (the respondent Police Commissioner) treated him less favourably than others in the workplace. His impairment arose, in part, from difficult and dangerous work as an undercover police officer. The applicant alleged that the respondent (acting through the applicant's superior officers) subjected him to roster restrictions, insufficient weekends off, abuse and a hostile work environment due to his impairment and family responsibilities.
The applicant further claimed that the respondent victimised him by providing his ex‑wife with details of his equal opportunity complaints. As a result, Mr Williams alleged that his Family Court proceedings were prejudiced, his stress condition deteriorated and that he required more medication and sick leave.
The Tribunal held that the applicant failed to prove a causal connection between the grounds of discrimination alleged and the decisions or acts complained about. The applicant's work performance was poor and his senior officers treated him in the same manner as any officer without such an impairment or family responsibilities.
The applicant failed to prove that he was victimised as there was no evidence either that the respondent intended to cause the applicant detriment or that there was any causative link between the respondent's conduct and the applicant's complaint. The Tribunal did not accept that the law as it presently stands allowed a claim of alleged negligence to be presented as evidence of deliberate victimisation.
Although the Tribunal was critical of some aspects of the Police Service's handling of both Mr Williams return to work and his subsequent complaints, all of the applicant's complaints under the Equal Opportunity Act 1984 were dismissed.

Background

In 1994, Mr Simon Williams (the applicant) joined the WA Police Service. From 1998 to 1999, he was attached to the Bureau of Criminal Intelligence as an undercover operative. The work that he was engaged in was both difficult and dangerous. The applicant was transferred to the Joondalup District Support Group in December 1999.
In July 2001, at the age of 34, the applicant was diagnosed with post‑traumatic stress disorder by his psychiatrist, Dr Oleh Kay. To this day Dr Kay continues to treat Mr Williams.
The applicant took six months sick leave and was certified by Dr Kay as fit to return to part‑time duties from January 2002. The Health and Welfare branch of the Police Service managed his return to work program, during which the applicant worked in the property office at Joondalup police station from 10 am to 2 pm.
On 9 August 2002, Senior Sergeant Gregory Savage commenced as the officer in charge at Joondalup police station. In October 2002, Sergeant Patrice Bernard commenced as shift supervisor of No 1 Relief at Joondalup police station. On 6 December 2002, the Health and Welfare branch advised Savage that the applicant was fit to resume full‑time operational duties. On 7 January 2003, the applicant commenced full‑time shift work on No 1 Relief at Joondalup police station.
The applicant's marriage broke down in December 1999 and thereafter he shared the care of his son with his estranged wife. In February 2003, the applicant and his wife divorced. The separation and divorce were very acrimonious, with ongoing Family Court proceedings concerning the care of their son.
As will appear below in more detail, the applicant's return to full‑time operational duties was not uneventful. The applicant believed that Savage and Bernard treated him unfairly by returning him to shift work without adequate notice or consultation. The applicant also believed that in his first week back at work, Bernard decided to roster him differently from other officers because of his impairment. Within months, Bernard and Savage sought a reassessment from the Health and Welfare branch of the applicant's fitness to work, and spoke to the applicant about his work performance. The applicant believed that this was discriminatory and not based on any genuine management grounds.
On 4 June 2003, Mr Williams wrote to the Commissioner for Equal Opportunity, complaining that from January 2003, Savage and Bernard had discriminated against him at work on the grounds of his impairment and his family responsibilities.
The respondent denied any discrimination. Instead, the respondent alleged that Mr Williams had work performance shortcomings which the respondent had properly attempted to manage as they would with anyone in the same position as Mr Williams.
Two conciliation conferences at the Equal Opportunity Commission failed to resolve the applicant's complaint and on 22 November 2003 the Commissioner referred the complaint of discrimination to the (then) Equal Opportunity Tribunal, pursuant to s 93(1)(b) of the Equal Opportunity Act 1984 (WA) (the EO Act).
On 1 January 2005, the functions of that tribunal were assumed by the State Administrative Tribunal (the Tribunal) by virtue of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA).
Points of claim and defence were subsequently filed by the parties in the Tribunal and further attempts to settle the matter by mediation were unsuccessful.
The complaints came before the Tribunal for determination by way of a hearing held on 10 – 13 October and on 21 and 23 November 2005.
The applicant was unrepresented, although he had received legal assistance initially from the Equal Opportunity Commission and then from the union for the preparation of his points of claim. The respondent was represented by Mr Matthews of the State Solicitor's Office.
In addition to bundles of written material submitted by the parties and additional materials subsequently tendered at the hearing, the Tribunal heard from a number of witnesses. The applicant gave evidence and called three of his former work colleagues to testify in his case: Senior Constable John Chisholm, Senior Constable Luke Jenkins and Sergeant Cherie Sandilands.
Senior Sergeant Gregory John Savage, Sergeant Patrice Jacques Bernard, Senior Sergeant Matthew Robert Ray and Inspector Lindsay Colin Sassella gave evidence for the respondent.
In addition, the Tribunal called Dr Angela Martinovich of the Health and Welfare branch and sought the expert opinion of the applicant's psychiatrist, Dr Oleh Kay, which was provided in writing on 12 December 2005.
The Tribunal also heard extensive oral submissions and Mr Williams filed written final submissions on 13 December 2005.
After deliberation, on 14 December 2005, the Tribunal made the following orders:
1.The complaints referred to the Tribunal and the subject of the inquiry are dismissed.
2.No order is made as to costs.
These are the Tribunal's full written reasons for the making of those Orders.

Impairment discrimination complaint

With respect to the impairment discrimination complaint, we consider that the applicant's points of claim and his documents allege the following matters:
1.the applicant suffered from an impairment within the definitions of s 4(b) and (d) of the EO Act (these provisions are set out below);
2.the applicant was declared operationally fit to resume full‑time duties and on 6 January 2003 commenced work on a rotating shift roster at Joondalup police station, attached to No 1 Relief;
3.a number of workplace issues arose during 2003 which amounted to the respondent treating the applicant less favourably than in the same circumstances, or in circumstances that were not materially different, it would have treated a person without his impairment, contrary to s 66B(2)(b) and (d) of the EO Act (these provisions are set out below); and
4.the applicant suffered detriment including feeling humiliated, being bullied, isolated and threatened in the workplace, and suffered an exacerbation of his psychological condition with increased anxiety and depression resulting in the need for more sick leave and medication.
In summary, the respondent, by its points of defence, admits that the applicant suffered an impairment, but pleads that the applicant's senior officers were not aware of his impairment at the material time. Moreover, any workplace issues arose because of the applicant's substandard work performance. The respondent says that it properly managed the applicant in all of the circumstances and did not treat him relevantly less favourably.
The respondent denies that it unlawfully discriminated against the applicant.
We are satisfied on the evidence before us, that at all material times the applicant had an impairment within the meaning of the EO Act.

The relevant legislation

The relevant provisions of the EO Act are:
"Division 1 — General
66A. Discrimination on ground of impairment
(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;
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person;
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
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.
Division 2 — Discrimination in work
66B.Discrimination against applicants and employees
(1)It is unlawful for an employer to discriminate against a person on the ground of the person's impairment —
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's impairment —
(a)in the terms or conditions of employment that the employer affords the employee;
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment."
"Impairment" is defined in s 4:
" … 'impairment' in relation to a person, means one or more of the following conditions –
(a)any defect or disturbance in the normal structure or functioning of a person's body;
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment —
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person."
Section 5 of the EO Act provides:
"Acts done for 2 or more reasons
A reference in Part … IVA [which deals with discrimination on the ground of impairment] … to the doing of an act on the ground of [impairment] includes a reference to the doing of an act on the ground of 2 or more matters that include [impairment], whether or not the [impairment] is the dominant or substantial reason for the doing of the act."
Section 161 of the EO Act provides:
"161. Vicarious liability
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent —
(a)an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph."
Section 4(1) of the EO Act defines "employment" as including "work as a State employee". The definition of "State employee" in the same section, "includes a member of the Police Force of Western Australia".

The relevant legal principles

The burden of proving discrimination on the part of the respondent lies on the applicant.
It is not necessary for the applicant's impairment to be the sole or even the dominant or substantial ground for the relevant act for the unlawful discrimination to be proved – it is enough if it is one of the grounds: see s 5 of the EO Act; Ghockson v Commissioner of Police (1996) EOC 92‑798 at 78,912 (WA, EOT).
Proof of a deliberate intention to harm or discriminate against a person is not necessary: see, eg, Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 259-260 (Kirby P); 265 (Samuels JA).
It is, however, well established that for a finding of unlawful discrimination to be made out it is necessary to establish a causal connection between "the ground of discrimination alleged and the decision or act complained about": Chris Ronalds and Rachel Pepper, Discrimination Law and Practice (2nd ed, The Federation Press, 2004) at 36. See also Ghockson v Commissioner of Police, above, at 78,912; cf Purvis v New South Wales (2003) 217 CLR 92 at 163 (Gummow, Hayne and Heydon JJ). Ronalds and Pepper (at 36) also observe that "establishing the existence of that causal link is frequently the most crucial element in any case".
The expression "less favourably" is to be given its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found proved in the particular case: Ghockson v Commissioner of Police, above, at 78 911; Haines v Leves (1987) 8 NSWLR 442 at 471(Kirby P).

Issues

When did Savage and Bernard learn of the applicant's impairment?

The applicant claimed that Savage and Bernard knew of his psychological impairment and that this was the reason for their less favourable treatment of him. The applicant testified that he had a conversation with Savage in September 2002 during which he told Savage that he was diagnosed with post-traumatic stress disorder. Savage made it clear that he knew all about the applicant's condition. The applicant claimed that Savage would have told Bernard, who rostered the applicant differently as a result.
The respondent denied that Savage or Bernard knew in September 2002 that the applicant had post‑traumatic stress disorder. Savage denied that such a conversation took place with the applicant in September 2002, or at all. He accepted that he had received information from the Health and Welfare branch that the applicant was on a graduated return to work program; that the applicant had received a psychiatric clearance from Dr Kay in late 2002; and that he was aware of the applicant's previous role as an undercover agent. However, he was not aware of the applicant's specific diagnosis.
Bernard testified that he was not aware of the applicant's diagnosis at any stage up until the hearing. Although he accepted that the police force is a workplace where rumour and gossip abound, he was the shift sergeant and consequently did not participate in the general workplace discussions. He based his decisions on his observations of the applicant and reports from those who expressed concerns about Mr Williams' alleged behaviour on patrol.
The applicant admitted that his stress condition deteriorated from early January 2003 for a variety of reasons, including that some months previously he had stopped taking his prescribed antidepressants without the knowledge of his psychiatrist. He later realised that his symptoms were worse and he resumed his medication; he found returning to full‑time shift work stressful, and the hostile relationship with his estranged wife continued to create problems for the applicant.
On the evidence before us, we are not satisfied that the applicant told Savage of his impairment in September 2002, but we do find that both Savage and Bernard had general knowledge of the applicant's psychological impairment from the date of his return to work in January 2003. Both Savage and Bernard were aware that the applicant had completed 12 months of a graduated return to work program at the same station. There were no indications of any physical disability. The applicant was the subject of gossip in the station because his manner was either unusual or different, and he appeared paranoid and anxious from time to time.
We find that even if Bernard and Savage did not enter into gossip with other police officers in the station, they observed the applicant themselves and were aware that his rehabilitation was related to a stress condition.

Did the applicant perform poorly at work?

The applicant did not agree that there were problems with his work performance. He testified that he was dedicated, highly trained and highly motivated, generous with his time and keen to share his skills and knowledge with his colleagues.
The applicant says he showed a higher interest and initiative in researching work policies, personnel practices and training issues than his colleagues. He agreed that he would challenge and question Bernard and Savage when he believed that they were less informed than he was in those matters. For example, he objected to the rear car park at work being allocated to senior officers, on the grounds that Bernard and Savage had no authority to impose discriminatory parking restrictions. He disagreed with them about their views on arrests after the use of force and he had a personal "policy" against issuing traffic infringements in the ordinary course.

The applicant did not accept that he was overly argumentative but admitted that he took issue with certain accepted practices at work, as the following extract from the transcript concerning "kit-up" time indicates:
"[MR WILLIAMS]: After the 26th, I don't think I was late. I don't recall being late. I - - the - - there's a difference that I was alerted to on what the supervisor who is watching you, or ...[indistinct]... late, if you turn up to work on time and then get changed into uniform and kit up, to some of them that's saying you're late. Whereas, if you turn up 15, 20 minutes before you start, and you get changed and kit up …[t]hen that's not seen as being early. It's seen as being normal for - - it's quid pro quo, and I mean, it all becomes quid pro and no quo. Then you - - I - - I found. Then I thought, well okay, I'm not working for free unless it's my choice. …
[ECKERT J]: So, it was to some extent an act of defiance? --- Passive resistance." (T:56; 11.10.05)
We find that the applicant's behaviour at work presented his senior officers with a management challenge: he was argumentative and did not take orders easily; he was late to work from time to time; some of his work colleagues reported to Bernard that they were concerned about his behaviour on patrol; he appeared to spend a lot of time on extraneous issues and insufficient time on some of his core duties.
In Preston v Carmody (1993) 44 FCR 1, a case dealing with public servants, Wilcox J observed:
"In holding that an officer's attitude may constitute a failure to attain or sustain a reasonable standard of efficiency, I wish to emphasise that this can only be the case where that attitude seriously affects the officer's work performance or the efficiency of the employer organisation. It is not enough that the officer holds unorthodox, even idiosyncratic, opinions or that those opinions are critical of superior officers. It is not enough that the officer has expressed those opinions, even in strong terms, and that this has caused hurt or annoyance. There is a place in every large organisation for 'stirrers' who question established practices and attitudes; it is often through the activities of such people that organisations become more effective."
In our view, Mr Williams' conduct, taken as a whole, went beyond the bounds identified by Wilcox J. We accordingly find that the applicant did perform poorly at work and was inefficient. It is likely, in our view, that his impairment contributed to this situation.

Was there relevantly less favourable treatment?

The applicant provided the following particulars of the less favourable treatment he claimed to have received which, he alleges, amounted to discrimination on the grounds of his impairment:
1.in January 2003 Bernard and Savage decided that the applicant would only be rostered with senior officers, or that he would be confined to office duties;
2.on 9 May 2003 Bernard attempted to place the applicant on a performance management program;
3.the applicant was unfairly treated in relation to his preparation of the "Mr P brief" (for a summary prosecution); and
4.Bernard and Savage created a hostile environment for the applicant in the workplace.
Each of these matters is discussed in more detail below.
The Tribunal must decide, in relation to each of these particularised events:
1.Has the applicant satisfied us that the particular workplace issue or event occurred as he claimed?
2.If so, as a result of impairment did this amount to relevantly less favourable treatment of the applicant than others in the same circumstances, or in circumstances that were not materially different?
(These two issues will be referred to below as "question 1" and "question 2" respectively.)
In addressing these two questions the Tribunal is cognisant of the effect of Purvis which dealt with issues of impairment discrimination, albeit under the Disability Discrimination Act 1992 (Cth). We consider that the essential issues formulated in that case are equally applicable to the situation under this State's corresponding anti-discrimination law. Purvis requires an acknowledgement that the conduct of the applicant cannot be divorced from the circumstances of the alleged discrimination. On that premise, the questions asked in that case were:
(i)How, in those circumstances, would the Police Service have treated a person without Mr Williams' impairment?
(ii)If Mr Williams' treatment was less favourable than the treatment that would be given to a person without the impairment, was that because of ("on the grounds of") Mr Williams' impairment?
Purvis dealt with the disruptive behaviour at school of an impaired child. In effect, the relevant comparator in that case was held to be an unimpaired child with the same disruptive behaviour.
As will emerge below, Mr Williams has not satisfied us that his treatment in respect of each particularised event would have been any different from that received by a person without his impairment who exhibited the same behaviour as he did.
We turn to consider the evidence relating to each particularised event.

1. Restrictive rostering directive

The applicant testified that the respondent discriminated against him on the grounds of his impairment by issuing a directive in January 2003 that he be rostered to work only with more senior officers, or be otherwise confined to office duties.
The applicant's claim that this directive was issued or implemented in January 2003 was not supported by his witnesses. The witnesses generally agreed that after 26 March 2003 the applicant was exclusively rostered with senior officers. This rostering restriction continued until Bernard went on leave for almost a month in May, during which time it was not followed by any of the acting shift sergeants. The applicant conceded that the actual period during which he was exclusively rostered with more senior officers was limited to four or five weeks after 26 March 2003.
The applicant claimed that Bernard's rostering directive was to be kept secret from the applicant, but during the hearing no evidence was adduced in support of this claim.
The respondent denied that any rostering directive was issued in January 2003 in relation to the applicant but admitted that after 26 March 2003 this did occur, based on the applicant's poor work performance. This decision was said not to be a punitive measure. The senior constables were asked by Bernard to monitor the applicant's performance.
As we have already found, at times the applicant's behaviour at work was below standard. Bernard was entitled to (and possibly obliged to) performance manage the applicant, for example by providing more supervision on patrol and by monitoring his interactions with the public.
In relation to question 1, we find that Bernard did not issue a restrictive rostering directive from January 2003. We are satisfied that for four ‑ five weeks after 26 March 2003, Bernard rostered the applicant exclusively with senior officers.
In relation to question 2, we find that Bernard had proper cause for concern with the applicant's work performance and that the rostering directive was reasonable in the circumstances. Bernard would have rostered any other officer in the same way if they had had the same performance issues as the applicant. The directive was not on the grounds of the applicant's impairment. We find that the restrictive rostering arrangements were appropriate to the circumstances and were not relevantly discriminatory.

2. Performance management program meeting of 9 May 2003

The applicant complained that he was discriminated against on the grounds of his impairment at a meeting on 9 May 2003, during which Bernard proposed to the applicant that he be placed on a performance management program. The applicant declined and the program did not proceed.
The applicant gave detailed evidence about this meeting. Essentially, he did not accept that he was under-performing and he saw this meeting as evidence of further discrimination against him.
The respondent agreed that the meeting took place and led evidence of a number of performance management issues concerning the applicant which gave rise to the need for a formal performance management program. These included complaints that the applicant:
a)was late to work on occasion;
b)failed to follow through with paperwork and arrests after the use of pepper spray;
c)adopted a personal policy against issuing traffic infringements;
d)caused concern to fellow officers by sometimes behaving overly aggressively when dealing with the public;
e)spent too much time on irrelevant matters to the detriment of his proper duties; and
f)inappropriately challenged his senior officers.
The applicant denied any poor performance and generally refuted these claims, except he conceded that he had been late on occasion.
Savage and Bernard testified at length concerning each of these complaints and we accept their evidence as generally accurate and truthful. The applicant's behaviour in the workplace did present difficult management problems for Bernard and Savage, as this extract of the transcript illustrates:
"ECKERT J: Do you recall at any time being spoken to by Sergeant Bernard about the number of infringements you'd issued whilst on traffic duties, and in particular him mentioning one day that - - questioning that you hadn't issued any cautions or infringements during a shift on traffic duties. Do you remember that at all? --- I actually remember him being quite frustrated at the amount of cautions that I've issued.
Too many; too few? --- Well, he wanted more infringements and as we discussed yesterday. I - - I've actually never written out a traffic infringement in my entire 11 years. I have a personal conviction that they tend to be counter-productive. I've arrested people for reckless driving and summonsed them and I think where - - where there's a penalty due, then absolutely the person should be charged but - - therefore things that are actually dangerous. Traffic infringements tend to be used a little too willy-nilly, I think, and - - for example, one issue that I have is unrestrained children. I always stop a vehicle for unrestrained children, and if people don't have a baby seat, then it seems counter-productive to give them a ticket that's going to cost them $200, which is the same as what it would cost them to buy a baby seat. So to be practical, there's been times when I think that it's been better to say, 'Well, how about you have some - - a period of time to buy a baby seat rather than have to spend money on a ticket. Here's a caution, and it's productive. That way it's a win situation. Sergeant Bernard was a little more enthusiastic about infringements - - a lot more enthusiastic about infringements and traffic matters generally.
So it's entirely possible that at some point in time Sergeant Bernard did speak to you about you not issuing infringements during shifts on traffic duties? --- Yeah. It annoyed him that I was - - well, I call it considerate; he calls it too lenient." (T:5; 11.10.05)
We find that the applicant did adopt personal policies on the issuing of traffic infringements and pepper spray which were at odds with the views of his senior officers, and that, consequently, he refused to accept their directions. The applicant questioned Bernard and Savage to a degree which could be considered as inappropriate. The applicant presented as a difficult employee with a challenging attitude towards authority in the workplace.
Whether or not the applicant was correct in his interpretation of police policy is immaterial to our conclusion that Bernard and Savage had genuine issues with the applicant's performance at work.
It is convenient to mention here that there was also a robust exchange that took place on 26 March 2003, where Savage told the applicant that he looked like "a bag of shit", a reference to the state of his uniform when he arrived late for work one morning. (This matter is considered below in relation to the claim of discrimination under the heading "family responsibilities".)
The comments made by the Tribunal (T:41; 21.11.05) about this incident equally apply here, including the finding that whatever the rights or wrongs of the matter, such comments do not necessarily reveal relevantly differential treatment. In context, it is highly likely that any officer more or less in the same position as the applicant would have been treated in much the same way by some of his superiors.
No other employee at the station at that time was on a performance management program and to this extent the applicant was treated differently from others. This treatment was not, however, on the grounds of his impairment, but due to his performance issues. Any police officer who behaved in the manner of the applicant would have been treated in the same way by the respondent.
Thus, in answer to question 1, we find that the meeting took place and the applicant was asked by Bernard to participate in a performance management program.
In answer to question 2, we find that the meeting of 9 May 2003 during which Bernard attempted to place the applicant on a performance management program was not relevantly discriminatory conduct by the respondent.

3. Mr P brief

The applicant arrested a Mr P and was therefore required to prepare the brief for the Police Prosecution Branch. On two separate occasions the brief was not prepared within the required time-frames and ultimately the prosecution decided not to proceed with the charge against Mr P. Savage and Bernard spoke to the applicant about the failed brief and a report was prepared, which determined that the applicant was at fault. Both the applicant and Bernard were sent off for additional brief preparation training as a result.
The applicant gave evidence that others were responsible for the delays which ultimately led to the charge against Mr P being withdrawn. He alluded to Bernard hiding the brief from him although this allegation was unsupported by any evidence.
The applicant admitted that he was inexperienced at the time that he prepared the brief and he chose to seek, in effect, guidance from the defendant's counsel rather than from his senior officers. This is an indication of the applicant's sometimes inappropriate or unusual work methods.
The documentary evidence gives a clear picture of the frustrations experienced by both the Prosecutions branch and Bernard in relation to this brief. The following exchange between Mr Matthews for the respondent and Mr Williams also supports the respondent's case:
"MR MATTHEWS [for the respondent]: A brief after you've finished with it is supposed to go to the brief handling manager?---To your supervisor first.
And then through the supervisor to the brief handling manager?---Yeah.
That didn't occur in relation to this brief - -? --- On the 21st?
- - in relation to the appearance on the 16th of July 2003? --- It didn't go through the supervisor, no.
And that is because the time was running in relation to the brief and disclosure you thought was more important than putting it through the supervisor and the brief handling manager. Time was then of the essence? --- Time was of essence but also - -
And that had occurred because you had left it till a - - a little bit late to complete the brief?---It was a combination of things actually.
Is one of them that you left it too late to complete the brief? --- It wasn't too late. It was within the time limit but it was getting close to being too late.
All right. Because you'd allowed time to become an issue? --- Because I - - what do you mean by time become an issue?
Well, things had to happen in a hurry and it meant that some other processes couldn't be completed? --- Oh, everything happens in a hurry in the Police Force. It's just - - you know. And actually - - and if you see - -
MR MATTHEWS: Well, it was your fault - -? --- Well, I don't think I agree with that.
- - that it didn't go to the supervisor and the brief handling manager. Can we admit that much at least, Mr Williams? ---No. It was my choice.
You left it too late. It was your fault it didn't go to - -? --- No, it was my choice but it wasn't my fault.
All right. It was a decision you made? --- It was a decision I made, yes." (T:22‑23; 11.10.05)
We accept the respondent's evidence that the applicant failed to prepare the brief properly, misled Bernard about the status of the brief, was reminded on several occasions of the need to complete the brief on time but failed to do so, did not comply with standard disclosure procedures and "chose" not to refer the brief to the brief handling manager. Ultimately, the prosecution decided that the charges could not proceed in these circumstances.
The applicant showed a lack of insight during his evidence on this matter, still maintaining that he was not at fault and that Bernard treated him less favourably than others in this regard because of his impairment. The evidence clearly demonstrates that his impairment was not the issue; his performance was.
In answer to question 1, we are not satisfied by the applicant's evidence as to these events.
In relation to question 2, the applicant did not satisfy the Tribunal that in relation to this episode he was relevantly discriminated against.

4. Hostile work environment

The applicant complained that Bernard called him paranoid and generally disparaged him to his peers in an attempt to create a poisonous work environment for him, and that this was done on the grounds of either his impairment or his family responsibilities. Bernard denied referring to the applicant as paranoid or otherwise attempting to turn other officers against him.
The applicant called Sandilands to testify in support of his claim against Bernard.
Sandilands' oral testimony was, if not actually inconsistent with her written statement, certainly somewhat different in its emphasis, so much so that her evidence should be treated with considerable caution.
Chisholm testified that Bernard had called the applicant paranoid on a work organised fishing trip. Mr Williams asked Chisholm the following question:
"MR WILLIAMS: Did it appear that Sergeant Bernard had serious concerns about my mind and how it would - - well - - and how it may affect my work?‑‑‑Yeah, in relation to his concerns, well obviously due to the changes that he made, they were of concern with you, such as rostering you on with - - with senior constables and above. I suppose - - well obviously there was concerns and when - - I mean, in reference to the fishing trip in the - - in the - - in my statement, he brought up then that you were paranoid. I can't remember the actual - - the way in which you were brought up, but he said that you were paranoid and we should all tell him - - tell you and when I disagreed with him, it was sort of like it was - - he realised he didn't have the support there and sort of backed down from the conversation as such. So, yes, he had - - he had ongoing concerns, but, I mean - - that you were paranoid, looking too far into things and - -
Mm?‑‑‑ - - that sort of thing." (T:94; 11.10.05)
The applicant agreed that he was "paranoid" in the sense that he was hyper vigilant and tended to question everything:
"MS LANG: And you describe yourself, and this is one, two, three, four paragraphs down; 'After spending some time with me, be it socially or professional, it becomes apparent that under certain circumstances I behave in a manner described as very suspicious, or paranoid. I display hyper-vigilance and become irritable and increasingly, embarrassingly forgetful.' And is that still the - - the symptoms, or the behaviour that you experience from time to time?---Yeah. Yeah. It is. Yeah.
Sorry?---Yeah. Sorry.
Did you want to continue with what you were just saying? I interrupted you?---Yeah. On the ...[indistinct]... well, I'm a talker, and anyway, but it sometimes, you know - - it's a bit - - it's a bit of a running joke that I'm such a chatterbox at times. And I try to make light of it too, but there's is so many fascinating, interesting issues that go on in the department, that, you know - -
Mm. But I'm - - I'm specifically interested in - - in your description of yourself as very suspicious or paranoid, hyper vigilant, irritable and embarrassingly forgetful? --- Yeah. Yeah.
And those symptoms are still with you? --- Oh, yeah." (T:47; 11.10.05)

We found that Bernard shared this perception of Mr Williams and in fact Mr Williams' witness also held this view of Mr Williams. We also find that the applicant was an employee who stood out as different and that his differences were discussed in the workplace by his peers and his senior officers. We find that Bernard used the term "paranoid" when talking about the applicant in the sense that the applicant looked too far into things.
Given the context, the conduct on the part of the respondent's officers may not have been of the most desirable standards of management, but it does not of itself prove that Bernard tried to turn other officers against the applicant.
The applicant's relationship with his peers was generally positive and satisfying and we do not find that a poisonous or hostile environment existed, or that his senior officers attempted to create such an environment.
Therefore, in answer to question 1, we are not satisfied that the respondent created a hostile work environment for the applicant as alleged.
In answer to question 2, in any event, we are not satisfied that the respondent relevantly treated the applicant less favourably than any other officer in these circumstances.

Conclusion on the impairment complaint

Taken overall, the applicant's evidence on these claims was often vague and lacking in detail. Although the applicant stated that he kept voluminous contemporaneous notes during the relevant period, he did not produce these at the hearing. His witnesses gave evidence which often failed to corroborate his claims. In the end, much, if not all, of the applicant's subjective impressions are contrary to or unsupported by the facts as we view them.
After consideration of all of the relevant evidence, we find that the applicant has failed to prove on the balance of probabilities that the respondent discriminated against him on the grounds of his impairment by treating him less favourably than, in the same circumstances or in circumstances that were not materially different, it would have treated a person without such an impairment.
To the extent that any of the factual substratum of the claim has been proved, we make it clear that the treatment Mr Williams received at the hands of the employees of the respondent would have been in all probability no different to that meted out to another person who was in his position and who conducted themselves in a similar manner, but who did not suffer from his impairment.
This complaint must therefore be dismissed.

Family responsibility discrimination complaint

We now turn to the second complaint of discrimination, namely discrimination on the grounds of family responsibility or family status.
We consider that the applicant's points of claim and his documents allege the following matters:
1.The applicant's shared care arrangements regarding his young son amount to a family responsibility within the definition of that expression in s 4 of the EO Act (set out below).
2.The applicant's family responsibilities meant that he:
2.1was required to collect his son from school at short notice on occasion, causing the applicant to be late for work on four occasions;
2.2required one weekend in three off, in accordance with his entitlements under the relevant enterprise bargaining agreement (EBA), in order to provide care for his son.
3.The respondent treated the applicant less favourably on the grounds of his family responsibilities by punishing him for being late and denying him his proper quota of weekend leave, in breach of s 35B(2)(b) and (d) of the EO Act (set out below).
4.He suffered detriment including an exacerbation of his stress disorder and pressure on his relationships with his son and girlfriend.
The respondent denies that it has unlawfully discriminated against the applicant and alleges that Bernard and Savage were not aware of his family responsibilities until the discussion on 26 March 2003.
Further, the respondent claims that it rostered the applicant for weekends in accordance with the EBA and that there was no evidence that he was not rostered for weekend leave for nine weeks, as alleged by the applicant.
Finally, the respondent alleges that it provided all employees with flexible workplace practices, that the applicant was specifically offered flexible rostering arrangements and that it did not treat the applicant any differently from any other employee in the same or similar circumstances.

The relevant legislation

The relevant sections of the EO Act are:
"Division 1 — General
35A. Discrimination on the ground of family responsibility or family status
(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 family responsibility or family status if, on the ground of —
(a)the family responsibility or family status of the aggrieved person;
(b)a characteristic that appertains generally to persons having the same family responsibility or family status as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same family responsibility or family status as the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who does not have such a family responsibility or family status.
(2)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 family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition —
(a)with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Division 2 — Discrimination in work
35B. Discrimination against applicants and employees
(1)It is unlawful for an employer to discriminate against a person on the ground of the person's family responsibility or family status —
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibility or family status —
(a)in the terms or conditions of employment that the employer affords the employee;
(b)by denying the employee access, or limiting the access of the employee, to opportunities for promotion, transfer or training or to any other benefits associated with employment;
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
(3)Nothing in subsection (1) renders it unlawful for a person to discriminate against another person, on the ground of the other person's family responsibility or family status, in connection with employment to perform domestic duties within a private household in which the employer resides.
(4)Nothing in this section renders it unlawful for a person to do an act a purpose of which is to afford persons with a particular family responsibility or family status rights, benefits or privileges in connection with that family responsibility or family status."
"Family responsibility or family status" is defined in s 4 of the EO Act as follows:
" …in relation to a person, [it] means – :
(a)having responsibility for the care of another person, whether or not that person is a dependent, other than in the course of paid employment;
(b)the status of being a particular relative; or
(c)the status of being a relative of a particular person;"
Section 5 (acts done for two or more reasons) and s 161 (vicarious liability) apply as with impairment discrimination. The text of these provisions is set out in [31] – [32] above.

The relevant legal principles

The same principles as cited above in relation to the impairment claim apply to a claim of discrimination on the ground of family responsibilities [34] – [38]. Thus, the burden of proving discrimination lies on the applicant. The standard of proof is the balance of probabilities. The law does not require an intention to harm or discriminate. It is, however, necessary for the applicant to demonstrate a causal connection between the ground of discrimination alleged and the decision or act complained about.
The respondent did not dispute that the applicant had a son for which he shared responsibility. We are satisfied that the applicant had family responsibilities within the meaning of the EO Act.
We turn to consider the relevant issues.

Issues

Was the respondent aware of the applicant's family responsibilities?

The applicant claimed that both Savage and Bernard knew that he shared the care of his young son, and that he discussed this with Savage in September 2002. The respondent claimed that Bernard and Savage were not aware of the applicant's family responsibilities until a meeting held on 26 March 2003.
The Tribunal finds that they were both aware of the applicant's family responsibilities by at least 7 March 2003, when the acting officer in charge, Acting Senior Sergeant Matthew Ray, sent an email message to Bernard and Savage (Exhibit 13), stating:
"I know Simon has issues regarding his parental responsibilities and this has been the cause of lateness at work on several occasions. It could be that this issue is also having a negative impact on his behaviour."
Ray's written statement at [19] confirmed that the applicant's domestic situation was widely known at work:
"Most staff members, including myself, were aware that the applicant had parental responsibilities and the reason that he was late was often due to having to pick up his son when his ex‑wife was not able to."
We find that Bernard and Savage had specific knowledge of the applicant's family responsibilities from at least 7 March 2003.

Was there relevantly less favourable treatment?

The applicant provided the following particulars of the less favourable treatment that he claimed to have received which amounted to discrimination on the grounds of his family responsibility:
1.The applicant was abused by Savage and Bernard on 26 March 2003 after coming to work late because he had to collect his son from school at short notice.
2.He was rostered for nine weeks without a weekend off.
3.He was not provided with flexible workplace practices.
The Tribunal must determine the following in relation to each of the particulars:
1.Has the applicant satisfied the Tribunal that the particular facts or events took place as he claimed?
2.If so, do those facts or events demonstrate relevantly less favourable treatment of the applicant than others in the same circumstances or in circumstances that were not materially different, on the ground of his family responsibilities?
We turn to consider the evidence in relation to each particularised event.

1. Meeting of 26 March 2003

The applicant testified that on 26 March 2003, he was about 45 minutes late for work because he was required at short notice to collect his son from school. He had called work to explain that he would be late.
The applicant admitted (T:75; 10.10.05) that this was the fourth time that he had been late and that he was told to meet with Bernard and Savage when he arrived for work. During the course of this meeting, Savage told the applicant to sort out his domestic arrangements so that he would not continue to be late. Savage also raised with the applicant other aspects of his employment which Savage deemed to be unsatisfactory, including the applicant's inability to accept direction from senior officers without repeated questions, and his focus on details outside of normal parameters. At one point he told the applicant that he looked like "a bag of shit", referring to the state of his uniform.
The applicant testified that he was offended by the language and the raised tone of the discussion. He repeatedly asked for evidence to support Savage's complaints and was frustrated that no particulars were given. He did not accept that Savage and Bernard had any genuine cause to raise complaints about his work performance.
The respondent generally accepts that the meeting took place as described by the applicant. During the meeting, the applicant was offered an alternative shift starting at 4 pm in order to provide him with the flexibility to collect his son as required. The applicant did not accept this offer.
The applicant was permitted to take his annual leave at short notice to assist with balancing his work and family responsibilities and he had also been offered the early start van to allow him to collect his son from school.
He further admitted that his partner was available to assist with his child care responsibilities but that he initially felt reluctant to exercise this option. The following exchange occurred in the Tribunal:
"ECKERT J: Middle of [2003], gave up separate premises. So, for all intents and purposes though, really, from Christmas 02, you're living as a family unit? --- Yeah. I was able to - - yeah. She helped me with [my son] Ben, for sure. That was actually really fortunate that it - -
ECKERT J: Why then, were you late for work at times? Couldn't she pick Ben up? --- She could but Ben was very - - very emotional at that stage. His earliest memories were of these - -
Getting run over? --- Domestic things that - - you know, seen me getting hit and - - and all sorts of carry on. So he was very clingy to me, and he didn't really know Yvette yet.
Yeah? --- And also - -
Yeah. He was wary of her? --- Yeah. And also, it wasn't her responsibility, as such.
No? --- I - - I didn't think it was right for me to suddenly project her into this role of - - of substitute parent. She still had her ... [indistinct] ...
But if being on time for work as a police officer is important, then isn't getting Yvette to pick him up a better option - - ? ---Mm.
- - than being regularly late? --- Certainly." (T:54-55; 11.10.05)
In answer to question 1, we find that the meeting took place generally in accordance with the applicant's evidence.
In a hierarchical workplace such as the Police Service, it is not surprising that officers speak to their subordinates in very strong terms from time to time. We doubt that this is good management practice – but that is not an issue for resolution within the jurisdiction of this Tribunal. Most of the other Police witnesses thought that the language used by Savage was inappropriate in the circumstances. However, there was no evidence that the applicant was spoken to in this fashion on the grounds of his family responsibilities or that he was spoken to in any stronger way than Bernard might have spoken to others in the same or similar circumstances.
This issue at this meeting was his lateness and his persistent questioning of authority, as the following exchange with Mr Williams demonstrates:
"MR MATTHEWS: Okay. But it was linked to your - - to his perception that you had not - - you didn't do as you were told or that you didn't toe the line. The comments were linked to - - so far as you could work it out they were linked to Senior Sergeant Savage's impressions of you in that regard?---That's what I believed at the time." (T:80; 10.10.05)
In answer to question 2, we find that the respondent did not relevantly discriminate against the applicant.

2. Nine weeks without a rostered weekend off

The applicant complained that he was denied his entitlement under the relevant EBA to a minimum of one weekend off every three weeks. This was an important entitlement to the applicant as he cared for his son on a shared basis with his ex-wife and he required the weekends to fulfil his family responsibilities. As a result of being denied his EBA weekend entitlements, the applicant was forced to take annual leave on the weekends when he had his son staying with him.
The respondent produced copies of all of the applicant's rosters and an analysis of No 1 Relief shifts from 6 January to 10 August 2003. This document concluded:
"[It] is apparent Constable Williams was allocated 10 weekends of leave over the 28 week period. Constable Williams' entitlement for this period in accordance with the EBA was 9. Accordingly, it would appear that Constable Williams received in excess of his EBA entitlement and that any changes made to Constable Williams' weekend leave entitlements were made at his own request."
The applicant did not address this evidence in any detail and was unable to identify the dates of the relevant nine week period even with reference to the rosters. There was no evidence to support his claim that the applicant had been treated differently from his work peers, or that the treatment was because of his family responsibilities.
In the absence of any material evidence supporting the applicant, the Tribunal finds that the applicant has failed to prove the essential elements of this claim.
Thus, in answer to question 1, the applicant has failed to prove that he was rostered for nine weeks without a weekend off. In answer to question 2, in any event, there was no evidence to show that the rostering of the applicant was relevantly connected to his family responsibilities, or that he was treated less favourably than others.

3. Flexible workplace practices

The applicant claimed that he was denied flexible work place practices and that he therefore suffered discrimination as a result of his family responsibilities.
Savage and Bernard testified that they provided a range of flexible work practices for police at Joondalup with family responsibilities, and that the station had one of the most flexible rosters in the metropolitan area. They specifically offered alternative starting shifts to the applicant to accommodate his family responsibilities. Joondalup police station was open seven days a week, 24 hours a day and the roster reflected those hours.
The applicant agreed that during the meeting of 26 March 2003, Bernard and Savage offered him the 4 pm shift start which would allow him time to collect his son from school before he commenced work. The applicant did not accept this offer, having formed the view that it would be an inferior shift effectively based in the office rather than on patrol. The applicant was cross‑examined as follows:
"MR MATTHEWS: But Sergeant Bernard had suggested the late start - - ?---Yeah.
- - to you?---Oh, yeah. Yeah. He'd suggested it.
So why are you talking about - - ?---Well, then I would have been stuck in the office.
That was your impression, that it was linked to being office bound?---Yeah.
Did you ever investigate that after the meeting on the 26th of March 2003 to see whether that was the situation?---No.
Okay?---But also in saying that, it wouldn't have really alleviated all of the problems anyway because I didn't know what days - - I mean, even if I had 4 o'clock start, if my son was with me because my ex-wife hadn't picked him up or fulfilled whatever plan there was, there was no guarantee that I'd be able to organise something afterwards anyway. So as far as - - it just became untenable. Honestly, it was so difficult to approach either of them that - -
MR MATTHEWS: Just tell me what your reason is for not taking the issue of the flexible roster further? Is it that you had a concern about raising anything with Sergeant Bernard after that meeting or was it that it wasn't practically of any use to you?---It was both." (T:81‑82; 10.10.05)

The applicant also testified that he would only be satisfied with the day shift he worked during his graduated return to work program. He was cross‑examined as follows:
"MR MATTHEWS: But in any event, you didn't take the flexible rostering thing any further?---Oh, flexible to me would have been letting me go back to my previous position in day shift. …" (T:82; 10.10.05)
The Tribunal finds that the applicant's expectations were unreasonable and that once he was declared fit to return to full‑time work he was not discriminated against by being rostered for shift work. We find that the applicant disregarded the respondent's offers of flexible hours without any proper consideration.
In answer to question 1, the applicant did not satisfy the Tribunal that the respondent did not provide flexible work practices. In relation to question 2, in any event, the applicant provided no evidence to show that he was treated less favourably than any other Joondalup employee in the same or similar circumstances.
We are therefore not satisfied that the respondent discriminated against the applicant on the grounds of his family responsibilities.

Conclusion on the family responsibility complaint

Again, the applicant's evidence was insufficient and lacking in adequate detail to prove the relevant elements of this claim. The applicant failed to satisfy the Tribunal that he had demonstrated contravention of any of the elements of s 35B of the EO Act and his second complaint must be dismissed.

Victimisation complaint

The Equal Opportunity Commission did not refer to the Tribunal a complaint by the applicant that he was victimised by the respondent pursuant to s 67 of the EO Act. The applicant's points of claim prepared on behalf of the applicant by his then solicitor, Ms Carol Adams, and filed on 30 May 2005, also failed to specifically plead victimisation. However, the factual basis of a victimisation claim was included in the points of claim and the applicant's witness statement.
The respondent had prior notice of the claimed factual basis and therefore did not object to the inclusion of a victimisation complaint to the extent indicated. This was a proper concession to make.
We are of the view that the respondent was not prejudiced by the applicant's claim and in the circumstances, we permitted the applicant to proceed with a complaint that he was victimised by the respondent by being subjected to detriment on the grounds that the applicant had made or proposed to make a complaint under the EO Act. Particulars of the victimisation, as appears from the applicant's points of claim and his documents, are:
1.The applicant made a complaint to the Equal Opportunity Commission on 4 June 2003.
2.The respondent instructed Sassella (from the Internal Affairs Branch) to investigate the complaint in order to prepare its response to the Equal Opportunity Commissioner.
3.Sassella, in the course of his investigation, interviewed the applicant's ex-wife and breached the applicant's confidentiality, thereby causing the applicant detriment in his Family Court proceedings, and mental distress. His stress condition was exacerbated and he was placed on three months sick leave from November 2003 to January 2004.
4.Sassella breached the applicant's confidentiality in order to subject the applicant to detriment on the ground of his complaint.
5.In addition, Bernard tried to influence other police officers in regard to the applicant's proposed equal opportunity complaints.
The respondent denied that it unlawfully victimised the applicant and maintained that Sassella properly exercised his discretion in the course of his investigations. The respondent submitted that Sassella needed to verify the applicant's shared family responsibilities by interviewing his ex‑wife and that this action had no causal relationship with the applicant's complaint.

The relevant legislation

The EO Act relevantly provides as follows:
"67. Victimisation
(1)It is unlawful for a person (in this section referred to as the 'victimiser') to subject, or threaten to subject, another person (in this subsection referred to as the 'person victimised') to any detriment on the ground that the person victimised —
(a)has made, or proposes to make, a complaint under this Act;
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act;
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act;
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act;
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of a provision of [the EO Act relevantly dealing with impairment or family responsibility],
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
(3)Subject to subsection (2), the application or continued application of subsection (1) in a particular case shall not be affected by —
(a)the failure of the person victimised to do any proposed act or thing referred to in any of the paragraphs of subsection (1); or
(b)the withdrawal, failure to pursue, or determination of any complaint, proceeding or allegation under this Act."

The relevant legal principles

The burden of proving victimisation lies on the applicant. The standard of proof is the balance of probabilities. Regan v Kalgoorlie Taxi Car Owners Association Incorporated (1996) EOC 92‑844 (WA, EOT) is authority for the proposition that the matter or conduct complained of has to be a dominant or substantial reason for doing the act of victimisation and more than that there must be an intention to cause detriment and that there must be a causative link between the conduct and the detriment.

Issues to do with victimisation

The applicant provided the following particulars of his victimisation claim:
1.Sassella caused the applicant to suffer detriment by providing his ex-wife with details of his discrimination complaint.
2.Bernard tried to influence other police officers in regard to the applicant's proposed discrimination complaint.
The Tribunal must decide in relation to each allegation of victimisation:
1.Did the applicant prove the factual basis of the claim?
2.If so, did the applicant suffer a detriment?
3. If so, did the respondent subject the applicant to the detriment because he had made or proposed to make a complaint under the EO Act?
The respondent did not dispute that the applicant had made a complaint to the Equal Opportunity Commissioner, following which Sassella was instructed to investigate the complaint on behalf of the respondent. The respondent also admitted that Sassella interviewed the applicant's ex-wife to verify the shared care arrangements concerning their son, in the course of which Sassella revealed that the applicant had made a discrimination complaint. There were consequences for the applicant in this information being revealed, not the least of which was the added stress of his ex‑wife's exploitation of this knowledge.
The applicant submitted that there were other ways in which Sassella could verify this information. He alleged that Sassella knew of the acrimonious relationship with his ex-wife, but did not ask the applicant if he objected to his ex‑wife being interviewed.
The Tribunal was sympathetic to the view that Mr Williams was caused some unnecessary detriment as a result of the investigation. It may be queried whether the investigatory techniques of using senior Internal Affairs officers is appropriate in cases such as this. Whether or not Sassella (or his superiors) could have behaved more tactfully in the course of the investigation is not a question for the Tribunal and is outside of our jurisdiction.
The applicant stated at [109] of his witness statement:
"It is clear now that it was victimisation by negligence and complacency."
The Tribunal noted during the hearing that this was not sufficient to prove victimisation, and referred the applicant to the provisions of s 67 of the EO Act. However, the applicant did not address the relevant statutory criteria and failed to lead any evidence to support a finding of victimisation within the terms of the EO Act.
In answer to question 1, we find that the applicant has proven part of the factual basis of the complaint.
In answer to question 2, we find that the applicant suffered distress and a general exacerbation of his psychological impairment amounting to a detriment.
However, in answer to question 3, we find that it is not sufficient for the applicant to merely attempt to prove that Sassella was negligent or complacent by his conduct. The applicant failed to satisfy the Tribunal that there was any intention to cause him detriment. The EO Act requires, as we indicated in [144] above, a causal connection between the act of victimisation (that is, the subjecting of the applicant to a detriment) and the applicant's discrimination complaint, which the applicant has failed to establish on the evidence he presented.
The second allegation of victimisation was that Bernard tried to influence other police officers in regard to the applicant's proposed equal opportunity complaints.
The applicant's witnesses were particularly weak on this point. Jenkins stated at [5] in his witness statement that:
"One day in 2003, I went into the shift sergeant's office to book in a vehicle. It was after I was aware Williams had made a complaint. I overheard a conversation in the shift sergeant's office between Savage and Bernard. They were discussing what to do about Williams and any complaint that he might make about the way that they were treating him."
During the hearing, Jenkins was unable to provide any further detail about this conversation:
"MR MATTHEWS: Okay. All right. I know that in your statement you've gone to a day in 2003 when you went into the shift sergeant's office to look [book] in a vehicle? --- Yes. That's correct.
And you say it's after June 2003? --- Yep.
Is that the best you can do for us? --- Yeah. It wasn't really an incident that I - - I mean, it was something that stuck in my mind but I didn't sort of really think that I'd be recalling it in this sort of setting, so - -
Okay. All right. I'm going to ask you, if you can, to recall as much as you can about the conversation; the words used? --- Oh, I wouldn't be able to recall the words used. At best I would be very general about - - about the conversation. Probably not a lot more than what's actually in that statement.
What's in your statement is you overheard a conversation, so two people were talking? --- Yep.
In the shift sergeant's office there was Senior Sergeant Savage and Sergeant Bernard who were doing the talking? --- That's correct.
They were discussing what to do about Williams and any complaint that he might make about the way they had been treating him. Are you sure that there's no words that you can tell the tribunal to back up that? --- I'd be guessing. I remember that they had a conversation and that was what it was about, but, yeah, what was said - -
MR MATTHEWS: Is it the sense you got of the conversation? --- Well, it's basically what their conversation was directed at, so if you had to ask me how to describe what their conversation was about, that's how I did it, so - -
What to do about Williams - any complaint that he might make about the way they had been treating him. No words you can give us? --- No." (T:56-57; 12.10.05)
And, later in the hearing:
"MR MCNAB: So you overheard these two talking about this - how they would deal with the complaint - and that's all you can recall that they were - - ? --- Yeah.
And the tenor of the conversation was what; that they were arranging things between them? --- Look, to be honest, I can't remember the exact text. However, it was to the ends of either, like, a documentation or to start documenting things, to start - - yeah; along the lines of forming some sort of documentation as to what was going on with the situation." (T:71; 12.10.05)
The applicant's other witnesses provided no evidence at all to support this second claim of victimisation.
The Tribunal is not satisfied that the respondent victimised the applicant within the terms of s 67 of the EO Act.

Concluding observations

The Tribunal was concerned that the applicant was unrepresented during this lengthy hearing whilst he was still psychologically impaired. We accept that the impairment affects the applicant's cognitive abilities, such as concentration and memory. Presumably the proceedings themselves created further stress for the applicant, which may well have exacerbated his condition.
The applicant testified that he was now studying law at university but clearly he was at a disadvantage in the absence of a legal representative to assist him in the logical and orderly presentation of his case to the standards required by the EO Act. At times his evidence was unusually disjointed and his recall of events very poor. He often failed to meet procedural deadlines fixed by the Tribunal.
The Tribunal assisted the applicant within the bounds of what is proper for a Tribunal and commends the fairness of Mr Matthews and those instructing him, for the respondent. Nevertheless, the Tribunal perceived that the applicant did not present his case at its strongest and much of his claim was effectively deduced, with some effort, by the Tribunal.
Be that as it may, the applicant was ultimately unable to prove any aspect of his complaints.
The respondent's administrative management of the applicant could, we think, have been better, but this does not amount to a breach of the EO Act. The applicant was declared fit for work and his file was effectively closed by the Health and Welfare branch of the Police Service. This left his condition effectively unmonitored and his supervisors without adequate advice on his propensity to suffer anxiety and stress. They lacked practical assistance with Mr Williams' transition to full‑time employment.
The applicant testified that there is no cure for post-traumatic stress disorder and that the symptoms are exacerbated by stress. It would not be difficult to foresee that his transition to full‑time employment after a prolonged absence would increase his stress levels, at least in the short term. The Health and Welfare branch should ideally have maintained a watching brief and continued to monitor his medical condition. Instead, they somewhat pragmatically presumed on the face of the medical evidence then available that once the applicant was declared fit for full‑ time duties the job was done.
The applicant suffered a relapse shortly after returning to work. It was unfortunate that the applicant's deteriorating condition led to uninformed discussions in the workplace of his "paranoid" or hyper vigilant, anxious behaviour. The applicant's performance suffered and he became increasingly difficult to manage. This was the situation faced by Bernard and Savage. There was no campaign or acts of relevant discrimination against the applicant, but there was clearly a lack of resources applied to supporting him in his return to work with this particular impairment.
On the whole, he had a supportive collection of peers, some of whom testified on his behalf. The applicant is intelligent and is dedicated to police work but had and continues to have limited insight into his behaviour and performance. His superiors struggled to manage him as he questioned the rules and authority in a manner beyond what is normal and reasonable. Bernard and Savage became understandably frustrated with the applicant's challenging behaviour and there were verbal altercations at work. With all that is now known, the subsequent Sassella investigation could perhaps have been carried out with more discretion and tact.
We find that there is no clear evidence before us that the respondent at any stage unlawfully discriminated against the applicant or victimised him as a result of his complaints to the Equal Opportunity Commission.
For these reasons, we dismissed the applicant's complaints on 14 December 2005.

Orders

1.The complaints referred to the Tribunal and the subject of the inquiry are dismissed.
2.No order is made as to costs.

I certify that this and the preceding [170] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT