Wright v Commissioner of Police, NSW Police Force
[2015] NSWCATAD 56
•27 March 2015
|
New South Wales |
Case Name: | Wright v Commissioner of Police, NSW Police Force |
Medium Neutral Citation: | [2015] NSWCATAD 56 |
Hearing Date(s): | 31 October, 3 November 2014 |
Decision Date: | 27 March 2015 |
Jurisdiction: | Administrative and Equal Opportunity Division |
Before: | D Patten, Principal member |
Decision: | (1)Application dismissed |
Legislation Cited: | Anti-Discrimination Act 1977 |
Cases Cited: | United Firefighters Union of Australia v Easy [2013]FCA 763, Police Federation of Australia v Nixon (2008) 168 FCR 340) |
Category: | Principal judgment |
Parties: | Grant Hilton Wright (Applicant) |
Representation: | Counsel: |
File Number(s): | 1310117 |
REASONS FOR DECISION
These proceedings arose out of a complaint made by the applicant to the President of the Anti Discrimination Board on 15 January 2013. The complaint alleged discrimination on the ground of disability by his employer contrary to S49D of the Anti Discrimination Act and Victimisation contrary to S50. The Boards efforts to resolve the matter were unsuccessful and the complaint was referred to this Tribunal.
Although the circumstances of the complaint itself fall within a relatively small compass they are to be seen in the context of a number of other complaints made by the applicant against his employer which have been before the Tribunal and its predecessor.
The applicant at all relevant times was a serving police officer with the rank of Senior Constable. He lived at Hillston within Griffith Local Area Command. Hillston a town with a population of approximately 1000 that is classed for internal police purposes as a “remote area”.
The applicant from January 2009 was stationed at Hillston Police Station, but according to the evidence, on account of a medical condition, from December 2011 he was required to work at the much larger police station at Griffith about 110 kilometres from his home at Hillston. It was there on 24 May 2012 that the events which led to these proceedings occurred.
He was rostered to work at Griffith on 24 May 2012 between the hours of 8 am and 6 pm. At about noon according to his affidavit sworn 22 August 2014 he was required to accompany a prisoner to Junee Correctional Centre with Constable Tyrone Neale. Junee is approximately 200 kilometres distant from Griffith. They were required to perform this duty in full uniform including a leather belt to which were attached a service firearm, handcuffs, capsicum spray, a baton, an electronic control device (known as a Taser) and a magazine with ammunition for the pistol.
The equipment attached to his belt made the drive somewhat uncomfortable for the applicant but nevertheless he slept most of the way to Junee while Constable Neale drove.
The applicant drove back to Griffith while experiencing significant pain and discomfort from wearing his belt and appointments all the way.
They arrived back at Griffith about 5pm that is about 1 hour before the applicants shift ended. He described his feelings and the events that followed :
My back was sore and I had numbness in the hips. I was still very tired as well by that time, which causes me to get very short in patience, temper and emotional. Wearing the belt was aggravating my stress at the time which had become highly sensitive. In order to minimise any further risk of exacerbating or creating a permanent back injury I removed the belt about 5.15pm and secured it in a secure locker for our “appointments”. I couldn’t keep it on because I was tired and not in a fit state to keep working operationally. I didn’t think of needing to take sick leave for the remainder of the shift because I only had 45 minutes of my shift to go, so I intended on completing some administration work by printing off some photos for an investigation brief I had running at the time. Within reason, I have seen it is common place that belts are put away prior to the end of a shift. I have seen this on a number of occasions over the years. It is a common practice I have seen across stations all over the state, and I have seen it done recently at Lake Illawarra and in the Griffith Police Station. I had no intention of leaving the station prior to the conclusion of my shift at 6.00pm, however I was confronted by the shift supervisor, Senior Constable Johanson saying “What are you going home early?” The manner in which he said this concerned me, as I felt it was a challenge to me rather than an honest and genuine question. I reacted in a defensive way, due to the tiredness and soreness I was feeling at the time, I replied. “No I am going to do some admin work upstairs.” I do not recall him directing me to place the belt back on, but I believe that he claims that he did. However I just walked away without saying anything further because I felt my anger and hurt build over an apparent lack of concern for the drive I had just done and my condition. I did not put my appointments belt back on. In hindsight I believe I should have taken the remainder of my shift as sick leave.
My stress and frustration rose to a point that I simply walked away to avoid confrontation in the station with him, which I have learnt to do when I am under stress. I went on to do as I said I would be doing, that is, administration work, which involved the colour copying of photographs for a criminal brief of evidence, which would enable me to wind down before leaving, and driving a further 110klms to home in Hillston. There was another main car crew available at the time attending jobs as they come in, so my absence did not put at risk a response if something was to happen.
Whilst doing the administration work, I was confronted by Sergeant Jason Clark who was witness to the earlier encounter with the shift supervisor. He challenged me over my apparent disobedience to the direction by the shift supervisor to put my appointments belt back on. I believe he knew as well that I had just driven to Junee and back, and have had significant time off for stress, fatigue and depression. His attitude therefore to myself was and is prejudiced, in my view. Sergeant Clark again reaffirmed the direction, and directed me to put my appointments belt back on despite only 15 minutes remaining in my shift, as the time by then was 5.45pm.
From this further confrontation I felt further humiliated, hurt and stressed, over the apparent lack of empathy and support that I expected after completing the shift’s demands. I finished what I was doing, and went and changed into my own clothes and left the station 8 minutes before the official end to my shift. But before leaving it is required to let the shift supervisor know when people leave the station after their shift. Senior Constable Johanson looked at the clock with a blank expressionless face, but was clearly unimpressed. I said “Well dock me 8 minutes” He marked the roster accordingly.
On 29 May there was an other incident at Griffith Police Station described by the applicant in para 39 of his affidavit :
On 29 May 2012 I had a court shift again. I live in Hillston and was at the time travelling to Griffith daily for my shifts. I was rostered to work between 8.00am and 6.00pm. I arrived 3 minutes late, as the drive from Hillston is a long drive of 100 kilometres and I quite often drive it slowly due to fatigue, and the risks of wildlife on the roadway. As it happened Sergeant Clark was the shift supervisor on the day, and as usual I went to see the supervisor to let him know I had arrived. He said,” You’re late 3 minutes.” I said, “I’ve just got to get changed”. Realising he was the shift supervisor that day immediately raised my stress levels with his immediate attitude towards my lateness. He said, “When you do come back and I want to speak to you about the other day. “. I took that as referring to the incident over the appointments belt. I went to the change room to get changed into uniform. I was extremely tense by that stage as I expected a confrontation when I returned. He said to me “ I want to speak to you about the other day. “ I said to him. “ I don’t want to talk about it with you. “ He said in a more affirmative tone,“ I will talk to you about it. “ I said again, “I don’t want to talk about it with you, put the matter on paper if you have an issue and I will deal with it that way. “ He then yelled at me, “I direct you to the Sergeant’s room”. This could be heard in the station by all present and anyone in the front public area. He pointed toward an office generally used and able to be closed off from the station. I again felt humiliated and taken aback from what I perceived to be an attitude of show of authority over any other consideration or issue that I had. Before going to the room I went to see a colleague Senior Constable Corrie Ward, our Commands Education Officer. I asked her to be a witness to the conversation, and she agreed. She was present during which the conversation took place between Sergeant Clark and I. He sat behind a desk and I sat in front. I have provided details of the conversation in my defence in a subsequent complaint file P1202297. During the conversation he directed me to refer to him as “Sergeant.” I had no respect for him at all, and refused to acknowledge him as such to his face for the way he was speaking to me. I referred to him by his first name, as he referred to me by my first name.
At that stage there was apparently concern by the senior officers at Griffith as to the state of the applicant’s health. This came to a head on 31 May 2012 as related by the applicant :
On the 31st May 2012 I attended Griffith Police Station for a rostered shift. About 9.00am I was called up to the Commander’s office, and I had a conversation with him. Superintendent Rowan said words to the effect, “ I have organised an appointment at 10.30am with your doctor. I will be coming and so will Brenda Stedman. “ I wasn’t asked if this was ok, I was just told it was happening. The appointment was paid for by the Command, and I attended simply not wishing to argue against it. During the appointment Brenda Stedman, who is our Local Area Manager for the Command, had prepared a printout of my sick leave since 2011. I told the doctor, as I have done before that I was still having sick days off where I could be bedridden for two to three days, and I would be too fatigued to eat. Eventually though I would pull out of the state I was in and be able to work again. My life was very much like a roller coaster of a ride. Brenda presented a copy of my sick leave to the doctor. Afterwards he said he believed I was suffering from Melancholic Depression. I had never heard of it, and I was immediately concerned. I became aware afterwards that it a more serious form of depression. Other doctors I have seen since, including a Psychiatrist believe it is a Major Depressive Disorder I have, not merely Melancholic Depression. Doctor Mahmoodi recommended that I be removed again from Operational Duties, and in particular, have my firearm taken off me again. The condition, he said, meant that my decision-making skills could be affected. This meant though that I would return to Restricted duties. I began a further Return to Work Plan.
On 1 June 2012 the applicant was told by Inspector Gordon Dunlop that there had been a formal complaint made against him and he was served with a notice signed by Inspector Dunlop requiring him to take part in a formal interview with Inspector Dunlop on 5 June 2012 “regarding a non criminal investigation – fail to obey reasonable direction”. The notice provided no further particulars.
The interview was duly conducted on 13 June 2012 and a transcript of it signed by the applicant is in evidence before us.
Relevant questions and answers are 13, 14, 26, 27, 28 29, 30, 31, 32, 33, 35, 36, 37.
Q13 It is alleged that at 5.15pm Thursday 24 May, 2012 whilst rostered as first response within the Griffith General Duties from 8am - 6pm, you removed and stored your appointments approximately 45 minutes before the shift completed. You were subsequently directed by the Shift Supervisor to put your police appointments back on, however you did not comply with this direction. At 5.35pm you were spoken to by another senior officer who directed you put your police appointments on, however you did not comply with this direction. You then left the Griffith Police Station at 5.52pm prior to the completion of your shift?
What do you say about that?
A. Before answering any questions in this record of interview, I wish the following to be recorded. You have told me that under the provisions of the Police Service Act (NSW) I am directed to answer your questions. I wish it known that I object to participating in this record of interview and answering any questions, any answer I make hereafter, or anything I do, is not made of my own free will, but because I am compelled to do so by your direction. I also wish it understood that I will object to this record of interview and anything that derives from it, being admitted into evidence, or otherwise used in any criminal, disciplinary, civil, or in any other proceedings taken against me. I will take the same objection in any such proceedings in which I am called as a witness or joined as a party, or in any such proceedings that are commenced by me or on my behalf. I will also object to any other person in such proceedings, giving evidence about the contents of the record of interview or giving any evidence that derives from the information contained within this record of interview and anything that derives from those documents.
Q14 I have noted that and now could you please tell me about what you have to say about the allegation I outlined?
A. I was on duty that day, about 5.15pm I did take my appointments belt off as alleged. I walked past the supervisors desk about that time, at the desk was Senior Constable Johanson the Shift Supervisor and Sergeant Jason Clarke. I went to put the gun key away and from my memory, Senior Constable Johanson said, "Are you going home now". Or something to that effect. I said, "No. My shift finishes soon." Or something to that effect. He did say something further, I don't recall the exact words. I'm cautious to suggest what those words would be for that reason. But I am certain it wasn't a direction. And then after that I walked off. I didn't put my gun belt back on. I went to the CMU to print out some colour photographs for an urgent brief that was due. While I was up there Sergeant Clarke was up there for some apparent reason. He said to me "Didn't JT tell you to put your gun belt back on." Or something to that effect. I again said "No I'm shortly about to finish shift. But I recall the closer to 5.45pm. Because after that I would go and change straight away. I'd got quite angry at that stage from being confronted. I do recall Jason saying something after that, but I can't recall what it was. I finished printing my colour photographs. Given it was so close to 6 o'clock, as far as I was concerned, I went and changed because my stress levels had risen. I kept my mouth shut and didn't say anything back. I went and changed. Went down to the Supervisors desk to report off duty. Senior Constable Johanson looked up at the clock in a glaring way. Then I recall saying something to the effect "Well dock me* eight minutes." And then I left the station.
…..
Q.26 You state you were getting angry during the evening. What caused this anger?
A. After being taken to task by S.Cst Johanson for not having my gun belt on. I'm not a confrontational person. My choice was on feeling angry to walk away from the confrontation and not argue the matter. If you are going to ask why I did it, I just got back from Junee after a five hour return trip. I was sore in the back and hips sitting in the car for that time and I was tired. When I'm tired, I'm extra careful of not getting into an argument with people. My feeling at the time S.Cst Johanson, by the way he said things was not concerned why I took my belt off. By his words I took the line 'are you going home now' as a throw away line.
Q.27 Did S.Cst Johanson ask why you were removing your appointments?
A. No.
Q.28 Did you offer an explanation as to why you were removing your
appointments?
A. No. Apart from saying it was near the end of shift.
Q.29 After S.Cst Johanson spoke to you about putting your appointments back on, did you offer an explanation then.
A. No.
Q.30 When Sergeant Clarke spoke to you in the CMU Office, did you offer him an explanation as to why you had your appointments off at the time?,
A. Again I only mentioned I was finishing soon.
Q.31 When Sergeant Clarke directed you to replace your appointments, did you raise any reason then?
A.No other than finishing soon.
Q.32 Do you have a current injury or medical certificate covering an injury or condition to your back?
A.No. When I say back pain I mean general aching from sitting in a car, uncomfortably for 5 hours.
Q.33 Do you agree, by removing and securing your police appointments you effectively removed yourself from being a quick response if need be for the remainder of the shift?
A.No I don't accept that. Because it would have only been a matter of minutes to get the gun belt and being out the door.
………
Q.35 Are you aware of the NSW Police Regulations 2008, Section 8 you are to comply with all lawful directions given by a superior officer?
A. Yes.
Q.36 Do you consider telling a junior member of the service to place their appointments back on during a shift as being unlawful?
A. No.
Q.37 Do you believe the direction of replacing your appointment belt is either an arduous or onerous task to perform?
A. It was a simple task to put it back on.
Following the interview the applicant sent an email to Inspector Dunlop :
Sir,
In relation to the complaint regarding the failure to comply with direction today, I am only informing you that I consider if the complaint will be sustained it is evidence of discrimination by being victimised and I will seek further legal advice on that. I indicated in the interview that is is commonplace at the end of a shift for response police to put appointments belts away early and leave early.
I am the only person, I believe, being treated in such a fashion where I am being pulled into line for leaving eight minutes early and starting 3 minutes late, and putting my appointments away early. It can be confirmed by the CCTV footage in the station and outside that response police are leaving early. When I started in 2001 it was commonplace then. My duties are no different to those on a 12.5 hr roster, so I don’t suppose I should be treated any differently. I have raised previously and I would like you to note also that only just the day before (23/05) my memory was that I left the station an hour later than I should have worked with no OT claimed. If you sustain this matter then that says to me there is no recognition of those times where I go out of my way to do extra.
Grant WRIGHT
Sen Constable 36411
In a report dated 14 June 2012 Inspector Dunlop found that the complaint “Disobey Reasonable Direction” was “sustained”. His reasons contain the sentences “I believe Senior Constable Wright was given two separate directions by two senior officers. I am of the opinion the directions relate to the same incident within a short period of time and should be dealt with as one incident”.
Inspector Dunlop’s report was subject to a “Quality Review” by Inspector A Reneber who concurred with his findings – “The outcome reached is evidence based and appropriate”.
The report was referred for a decision upon further action to Superintendent Rowan the Griffith Local Area Commander. He required the applicant to provide a written response. The applicant did so on 4 July 2012 but in the meantime he made a workers compensation application on 21 June 2012 in which he said
‘the officer is being subjected to bullying, intimidation and harassment by Superintendent Michael Rowan and Inspector Gordon Dunlop in relation to the acceptance and threats of complaints of a minor and subjective nature, however they are being sustained irrespective of any reasoning I provide. The Inspector has also indicated that my alleged behaviour will now be difficult to manage. He therefore has a set against me. The same issues are not being taken against other officers, which is evidence of the targeting. I have evidence of that. On 31 May 2012 Dr Mahmoodi in the presence of Supt Rowan and Local Area Manager Brenda Stedman indicated that he believed I was suffering from Melancholic Depression as a result of my work. This claim is now put in due to legal advice on this diagnosis. Because of the workplace environment it is causing stress and debilitating tension in the shoulders and headaches. I am also nervous of coming to work for fear of any fresh complaints. Insp Dunlop has threatened me that any breach of the RTW plan currently in place will result in further managerial action being taken, no matter how minor they may be. There are currently discrimination complaints against the SMT of Griffith LAC, which the action by Insp Dunlop and Supt Rowan is in breach of s206 of the Police Act 1990. I have requested another Inspector to monitor the RTW plan however this request has been ignored. My continuing employment under the Griffith LAC is no longer tenable.
The applicant’s response to Superintendent Rowan of 4 July 2012 is lengthy but in fairness to him we think it should be quoted in full :
You have informed me, that I have the opportunity to respond in kind to the report of the Investigator in relation to this matter.
I will firstly say I am not impressed nor satisfied that this matter was investigated impartially or professionally. This response is not flattering of the Investigator and investigation and, I expect, will raise eyebrows by those above me. However, I will not hold back in my criticism because it is the case that I am in the position of risk, being the officer subject to review by the Independent Review Panel for action. I stand to incur amongst other actions; a reduction of my rank, deferral of my salary increment, or a disciplinary transfer.
You have informed me that I am not eligible for a Warning Notice, as I have received one in the last five years. I expect then that I am liable to Reviewable action for this matter, which I will contend is questionable and minor that it makes a mockery of the more serious matters that are looked on for Reviewable action.
I say this, because, the typed interview was conducted between Inspector Gordon Dunlop and I on 13 June 2012. Inspector Dunlop typed it and it is evident throughout the amount of spelling and grammar errors. If an independent person was to read this either they should be shocked at the typing skills, or believe it is the way I speak. In fact, it is not the way I speak, nor write. It became evident that Inspector Dunlop had more pressing matters on his mind, because as soon as the interview was over, he left and arranged for Inspector Craig Thorp to witness the signature. Further, the copy of the interview, that is part of the investigation, is the second copy after I made handwritten amendments in the presence of Inspector Thorp and signed to them, as spelling errors evident in the copy did not make sense of the sentence. Also, the question numbers were all out of order. I only conclude that the amount of errors meant that he did not take this matter seriously enough and was intent on going through the motions merely to find the matter sustained. He had made enough enquiries already with Sergeant Jason Clark and Senior Constable Kris Johanson to know that I was not likely going to deny the fact that I not retrieve my gun belt after being allegedly directed to do so. Then it was only a matter of course that the matter would be sustained, whether I admitted to it or not.
Inspector Dunlop has signed to a document that he accepts accountability and certifies the investigation in terms of its quality, timeliness and completeness. The quality is atrocious. My 10-year-old son does not commit so many spelling errors when he writes emails to me. This may sound astounding but I take offence to a matter that is intended to clearly have some impact on my financially by referring it to the IRP. This is a matter investigated by an Inspector of Police, who would, I expect, consider himself very experienced in the job. He is a man, not of low education. Surely then it would be expected that a complaint against the integrity of a police officer, irrespective of rank, would be taken seriously enough to ensure that at least spelling and grammar is not something that could be brought into question.
On the issue of the direction Inspector has deliberately and blatantly misquoted me. He has misquoted me in text, not merely word. It is not an "I said, he said" situation. Inspector Dunlop has signed himself to the accurateness of my words, yet he cannot quote me correctly in his report. Under his "Rationale" he completes a very short response to a serious matter that warrants mandatory reporting and a question mark over my integrity.
He quotes me as acknowledging that"... the directions were both reasonable and lawful and he did not comply." (para 2). In fact I said in response to question 38 "In these circumstances it is more a question of reasonableness, given the time of proximity of completing my shift..." There is no need to fully type out my response as you can read it for yourself. I will include though that I have personally witnessed shifts of officers on 9.5hr shifts like mine since who have put their appointments belts away early and left the station right on or just before the minutes of their shifts. This was particularly witnessed on 19 June 2012.1 have kept a note of who put their appointments away early and left on time. This day is no different to others, but Inspector Dunlop does not take this seriously enough to investigate it properly. He cannot with integrity claim he is not aware of this. It is open and blatant for all to see in the station, especially outside the Exhibit Office where I sat at the time.
Inspector Dunlop also claims that I gave no "plausible" reason. I seriously hope that he does not think that a 5-hour drive from Griffith to Junee and back in a Ford Ranger General Duties vehicle is the most comfortable and enjoyable experience. It is a return trip of about 400klms. It was after that drive that I took my appointments belt to relieve pain and discomfort I was experiencing. I was tired and tense by that time as well, which was relatively close to the end of my lOhr shift. I was not intending to go home early. I was merely intending to get some administration work done until the end of the shift. I was not the main crew for the shift. I was the secondary crew. Is all this not a plausible reason?
Inspector Dunlop knows and has witnessed enough of my current condition, which has been diagnosed as depression, to know that that my tolerance level when being confronted is low. He is aware that I have had significant sick leave off since August 2011 due to stress and a breakdown. I have worked hard over the last few months to get myself back on track but it has not been, nor still is an easy road. As does Sergeant Clark and Senior Constable Johanson, know somewhat of my time off. Their attitude however, is anything but empathetic. Senior Constable Johanson, is considerably junior to me, however was filling a senior role as Supervisor on the day in question. His attitude is sour towards me, and he has dared to criticize my manner when dealing with customers at the station over general enquiries. I don't waste my breath or anger in arguing back, I have learnt to hold my pride and just walk away. I am not so arrogant as to not listen, but there are times when I know it is not wise, nor appropriate to challenge something. It is clear that both these other officers on this occasion do not believe in the same approach. As Inspector Dunlop notes I did become angry. I was extremely tired after the drive, and it is evident that Senior Constable Johanson, Sergeant Clark, and subsequently Inspector Dunlop had no concern about my condition. I am not obliged to give a complete and full account of my reasons when so confronted, as any confrontation does push me close to my limits. I walked away, and now stand to be Subjected to departmental action for disobeying a lawful direction. It is neither lawful nor unlawful; it relates to reasonableness, as I have stated. I gave my account as to why I did not put my belt back on when so "directed". I still deny Senior Constable Johanson directing me as such, but clearly both collude to say that I was.
Sergeant Clark is not without reproach. Last year, I became aware that he completed a Sick Leave report of mine stating I was off for "Women's issues". I find that highly offensive and sexist, and blatantly disrespectful of my health condition. It is deplorable of a Sergeant to form such a view and then commit it to ink. It is now subject to an investigation, as when confronted, he told me that it wasn't investigated, merely that he had been spoken to about it. He also said that it was grubby and slimy of me to raise it again. Another officer witnessed this. Well, I consider that such a matter would have warranted investigation. It is more serious than a subjective direction as to whether I should put an appointments belt back on. Yet this wasn't done, and so it is evident more-so in my mind that Inspector Dunlop is biased against me and had no impartial mind to begin with and would find the matter sustained.
Inspector Dunlop is currently subject to a carers responsibilities discrimination complaint by myself, currently before the Administrative Decisions Tribunal. He could therefore not be considered impartial to investigate a complaint against me fairly. Yet it is the case in general that the Griffith LAC does not take my word seriously, merely because I speak out against matters that I see as unprofessional, unethical and corrupt.
Finally, Inspector Dunlop has clearly shown he will hold a continuing bias towards me when he says, "It is evident his behavior in the workplace will continue to be hard to manage whilst ever this officer retains this lack of self reflection". This is such an arrogant and self-righteous comment. He does not know anything of me to say such a thing. He is responding to a valid email that he takes offence to his authority because of rank. Attached here is a copy of the email. This senior officer parades himself as a Peer Support Officer, but he is not one I consider I would approach with any support I require. I do not trust him, nor any of the senior management team. I know I am not the only one in this command who holds the same mistrust of the SMT, but I am merely the only one who is willing to speak out about it. I hold a Bachelor of Theology and Diploma of Ministry. I also hold a number of significant other qualifications and have a greater worldly experience when it comes to other areas of work and experience compared to that of Inspector Dunlop, who in his late 40s now, has only really known Policing as an occupation. To say the culture would be ingrained in him would be an understatement. It is a ludicrous comment then to say I have a "lack of self reflection". This shows his further ignorance of my situation and is so careless in discrediting me from one email.
My desire with this is that the IRP take a strong approach towards this matter, and seek an independent investigation, or better still, dismiss the complaint as frivolous. Inspector Dunlop clearly considers the nature of the matter of turning up 3 minutes late and leaving 8 minutes early as so minor not to investigate further. He is aware, as I have made him aware, that this is a wide practice in the Command and a consistent and nondiscriminatory approach is not being implemented. It is further evidence then that the Complainant seeks to heap whatever discredit on me rather than take a responsible approach to the issues. I have witnessed since the interview one Sergeant, and two Senior Constables turn up late. I have kept a log of the occurrences.
My continuing situation at he Griffith LAC is not helping me, or the community of Griffith. I consider the longer my stay goes on there is an increasing OH&S risk to my health. I have been concerned each day as to what complaint will come next. Prior to Griffith LAC, I had a relatively unblemished complaint history. Not one of the issues I have had sustained were ever an issue in all the other Commands I served in, including Commands seconded to. This I believe is indicative of the poisonous environment that Griffith LAC is. It is indicative that the problem is not necessarily with me, as a review of the complaints of all officers in the Command may show an alarming trend of a size 10 boot in the manner of dealing with apparent subordination. A review of my complaint history at Griffith will definitely show a substantial issue with authority, and not the manner or quality of my work. That, I would contend, is indicative of a problem not with me because I never had this issue anywhere else. It is a problem with the Griffith LAC in that they view me as not subjecting myself to their authority.
This complaint should be dismissed as frivolous, discriminatory and merely an attempt to crush an officer who dares to speak his mind. I hope someone actually does take the time to listen and take this serious enough, and not write this reply off.
Grant Wright
Senior Constable
4 July 2012
On 14 September 2012 Superintendent Adrian McKenna of Professional Standards Command notified the applicant that he was considering making a “reviewable order” against the applicant.
The applicant was invited to make written submissions within 7 days. He did so restating a number of the contentions referred to earlier. On 7 November 2012 Superintendent McKenna formally ordered that the applicant “be disciplinary transferred from Griffith Local Area Command to Lake Illawarra Local Area Command”.
Superintendent McKenna’s quite lengthy reasons for this order concluded with the paragraphs
I find that you have failed to demonstrate any insight and understanding of your misconduct. You have failed to accept any responsibility for your actions and have not expressed any contrition or remorse. I find it most concerning that you do not appear to recognise why your actions were Inappropriate and unacceptable.
Your previous complaint history, as outlined In the Notice, concerns me. While I acknowledge the Region Commander's Warning Notice I referred to in my Notice was in fact a Commander's Warning Notice, I still consider your disciplinary history concerning. You do not have an unblemished history of service. I note that you have come under adverse notice in other Commands. You received a Warning Notice from the Compliance Law Division, Legal Services and a Warning Notice from Police Prosecutions.
I am particularly concerned by these allegations given that you are a Senior Constable of Police with over 11 years of service. The seriousness of your alleged misconduct is compounded by the fact that you are expected to be a role model to junior officers. I am concerned that your conduct shows a deliberate disregard for your rostered duties as a police officer and a failure to comply with the lawful directions of your superiors.
In the circumstances, I believe it would be in both your best interests and the interests of, the NSW Police Force that you be transferred to a different location to offer you a fresh , start in a new environment Your relationship with Griffith Local Area Command has clearly . broken down, evidenced by your descriptions of the Command as "poisonous" and your clear distrust of senior management. I believe that at this point In your career, you would benefit from a Command which can offer you greater supervision and support.
I note that in conjunction with this Order you will also be receiving a Deputy Commissioner's Warning Notice.
We have distilled the above summary of what we regard as the relevant facts from many hundreds of pages of documents put in evidence by the applicant.
The only other witness in the applicant’s case was Dr Kourosh Mahmoodi who during 2011 and 2012 was in General Practice at Griffith. The applicant first consulted him on 23 September 2011. He took no history of physical injury but initially diagnosed anxiety disorder. Later he formed the view that the applicant was suffering depression and anxiety and organised a care plan for him. The applicant told him that he was having difficulty coping with his work as a police officer. Dr Mahmoodi continued to treat the applicant until June 2012 and in the meantime provided him with work cover certificates for his absences from work and certificates for him to work restricted hours.
Before coming to evaluate those facts against the relevant statutory prohibitions it is appropriate to say something about the evidence tendered in the respondent’s case.
Senior Constable Kris Johanson said that on 24 May 2012 he was performing “the role of team leader of the Griffith General DDDDD Team on the 6am to 6.30pm shift”. He deposed to these events :
9. At approximately 5:20 pm on 24 May 2013, I was at the Supervisor's desk within the Griffith Police Station.
10.At this time, Senior Constable Wright came to the Supervisor's desk and took the keys for the gun storage room, which is where officers store their gun at the end of each shift.
11.I subsequently saw that Senior Constable Wright had taken off his appointments belt (which holds an officer's gun, taser and other appointments and was going to store them in his locker.
12. I was sitting down at a desk and Senior Constable Wright walked towards me. We had a conversation to the following effect :
Me : what are you doing?
SC Wright : Taking my stuff off for the day.
Me: You realise you don’t finish til 6? You had better put your gun back on.
Jason Clarke a Sergeant of police stationed at Griffith gave evidence which incorporated an affidavit sworn 15 January 2014 in proceedings before the Industrial Relations Commission. In that affidavit he deposed to events concerning the applicant which occurred at Griffith Police Station on 24 May 2012:
20. I refer to paragraphs 45 and 46 of Senior Constable Wright"s affidavit. I cannot recall exactly when I became aware of Senior Constable Wrights complaints to the Anti-Discrimination Board (ADB). I would have become aware of them at some stage during my time at the Griffith LAC given my position. I deny that I am, or was at any stage, prejudiced towards Senior Constable Wright. My investigation of the incident on 24 May 2012, including the interview I conducted, was not predetermined. My finding of misconduct was, again, not predetermined. I was not motivated in any way by any particular views or the fact that Senior Constable Wright had previously filed complaints to the ADB. I treated this investigation and made my findings in the same way as I would have for any other investigation of any other officer in the same circumstances.
Inspector Gordon Dunlop deposed that he was Duty Officer at Griffith Police Station on 24 May 2012. He was informed by both Sergeant Clarke and Senior Constable Johanson of their respective conversations with the applicant and he himself prior to 6pm observed the applicant not wearing his appointments belt.
In response to a claim by the applicant that he was an inappropriate person to conduct the investigation Inspector Dunlop said :
I refer to paragraph 54 of Senior Constable Wright’s affidavit. I do not recall the exact conversation but it is likely that I was referring to the difference between an officer who was taking off their appointments belt well in advance of their shift ending and an officer who was taking their appointments belt immediately before shift change over and leaving the station.
The final witness in the respondents’ case was superintendent Michael Rowan who gave evidence in reply. He was examined as to his awareness of complaints made by the applicant to the Anti Discrimination Board. As we understand his evidence it was to the effect that they were dealt with by legal counsel as a member of the Complaint Management Team at Griffith. Although he was notified of them by telephone when they were made. He could not recall any discussion with Inspector Dunlop regarding them. Cross examined as to whether Inspector Dunlop was an appropriate person to conduct an investigation into the applicant’s alleged misconduct he replied “if I thought there was a conflict of interest I would not have appointed (him).”
The evidence of Superintendent Rowan, Inspector Dunlop, Sergeant Clarke and Snr Constable Johanson was not in our view significantly challenged by the applicant.
As it seems to us the applicant cannot escape from the fact that on two separate occasions on 24 May 2012 he failed to comply with the directions of a superior officer namely Snr Constable Johanson and Sgt Clarke. The applicant does not deny this failure and therefore in our view it is not to the point that on other occasions and in other circumstances other officers may have removed their appointments belt without being ordered to put it back on. As the applicant acknowledged the Police Force is a disciplined service and one of the concomitants of such a service is obedience to the lawful orders of superiors.
Sections 49A, 49B and 49D of the Anti Discrimination Act 1977 are relevant to this case :
49A Disability includes past, future and presumed disability
A reference in this Part to a person’s disability is a reference to a disability:
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
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 the perpetrator:
(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, 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 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.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.
(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:
(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or
(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,
is taken to be a characteristic that appertains generally to persons who have that disability.
(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
49D Discrimination against applicants and employees
(1) It is unlawful for an employer to discriminate against a person on the ground of disability:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
(3) Subsections (1) and (2) do not apply to employment:
(a) for the purposes of a private household, or
(b) where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or
(c) by a private educational authority.
(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
(5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
The applicant if we may say so conducted his own case with some ability. He said that he relied on major depressive illness as the relevant disability for the purposes of the Anti Discrimination Act and he conceded that he had difficulty on the evidence in establishing indirect discrimination. Although he attacked the credibility of Snr Constable Johanson and pointed to discrepancies in his evidence they were not in our view of significance and did not undermine the thrust of his testimony that he gave a lawful order to the applicant which was not obeyed.
Ms Eastman SC, for the respondent referred to the obligations of police officers to wear their arms and appointments at all times when performing station duties except in circumstances not relevant to this case. She also referred to the obligation of police officers to comply with any lawful and reasonable direction given by someone in the police force with authority to give the direction.
We are satisfied that the direction given by Snr Constable Johanson and Sgt Clarke to the applicant namely that he replace his belt and appointments were directions the applicant was required to obey if lawful and reasonable.
There seems no basis for a conclusion that they were not lawful. As to whether they were reasonable, on the face of it they clearly were, as with irrelevant exceptions it was a requirement that police officers always wear their belts and appointments while on duty for the reason that they may be called upon for urgent response to criminal activity. If at the time the directions were given to him the applicant had been suffering significant back pain and had made that fact known to Snr Constable Johanson and Sgt Clarke their directions to him may have been arguably unreasonable. However the applicant does not assert that he made any complaint to either officer. There is therefore in our opinion no reason to regard the directions as unreasonable.
We note that although the applicant had previously been diagnosed as suffering from a depressive illness as at 24 May 2012 he was certified as fit for operational duties. There was nothing in his medical records to indicate symptoms with respect to his back or hip.
Ms Eastman submitted that on the evidence the most the applicant was suffering when he failed to comply with the directions given by Snr Const Johanson and Sgt Clarke was discomfort as a result of sitting in a vehicle for a long time. This Ms Eastman submitted, correctly we think, did not constitute a “disability” as that word is defined in s4 of the Act.
If contrary to our view the applicant at the relevant time was to the knowledge of Snr Constable Johanson and Sgt Clarke suffering from a physical disability either as a manifestation of mental illness or otherwise which would render it inappropriate for him to wear a belt and appointments it does not seem to us for reasons which follow, that the evidence brings him within s49D of the Act. Of the provisions of s49D only 49D (2)(d) could be relevant to this case.
The applicant claims that subjecting him to a disciplinary inquiry constituted a detriment. It may be that the conduct of a formal disciplinary inquiry into the conduct of an employee amounts to a detriment within s49D(2)(d) (United Firefighters Union of Australia v Easy [2013]FCA 763, Police Federation of Australia v Nixon (2008) 168 FCR 340).
However inthis case in our view there was no causation proved between the alleged disability and the alleged detriment. We think that at most there was causation between a disability and the direction to resume wearing the belt and appointments.
The causal link was broken when the applicant disobeyed the directions as it was his disobedience not his failure to wear the belt which led to the inquiry.
If we be wrong in that conclusion we would find that the evidence does not establish discrimination within s49B of the Act. There is no evidence that on the ground of his mental health disability the applicant was treated less favourably than other police officers at Griffith Police Station who did not have such a disability. These comparators would need to have been officers who with impunity disobeyed a lawful order. There was no evidence of the existence of any officer in that category and no evidence that the applicant was required to comply with a requirement with which he was unable to comply.
The applicant does not deny that he was physically quite capable of wearing the belt and appointments even at some personal discomfort.
For the above reasons the applicant’s claim that he was subjected to unlawful discrimination fails. He also claims that he was victimised contrary to s50 of the Act. That section is in the following terms :
50 Victimisation
(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
It will be observed that breach of s50 requires the proof of a number of elements.
In this case it may be taken that by May 2012 the applicant had brought proceedings under the Act in respect of previous complaints against the respondent and that at least some of the officers at Griffith Police Station were aware of this.
However the issue is whether the applicant was subjected to a detriment on the grounds that the previous proceedings had been brought. It was submitted by Ms Eastman that directing the applicant to resume his belt and appointments did not constitute a detriment and we agree with that submission. She also submitted that subjecting the applicant to a disciplinary inquiry did not constitute a detriment. Having regard to the authorities mentioned above we are not satisfied that this is correct as a general proposition.
However there is no evidence that either Snr Constable Johanson or Sgt Clarke knew of the previous complaints when they required the applicant to resume his belt and appointments let alone evidence that the previous complaints were the reason for the directions.
The applicant has the onus of proving both knowledge and intent either directly or by inference. There was no direct evidence and in all the circumstances of this case we do not think either knowledge or intent should be inferred. It is much more plausible that the applicant was directed to resume his belt and appointments because he had taken them off while on duty contrary to the rules and practice.
Finally we refer to the suggestion by the applicant that Inspector Dunlop should not have been appointed to investigate the complaint in that, so it was asserted, he had a conflict of interest being biased against the applicant. There was no evidence that inspector Dunlop was actually biased against the applicant and as Ms Eastman pointed out the complaint was relatively minor and did not justify an investigation by an officer or panel outside the Griffith area.
Minds might differ as to whether or not it was appropriate for an officer at Griffith to investigate a complaint about another officer who was pursuing legal proceedings in relation to events which occurred within the Griffith command. However in our opinion that is not a question relevant to our consideration of the matter.
It would we think be unreal to regard the appointment of an arguably unsuitable person to conduct the investigation of a complaint as an act of victimisation contrary to s50 of the Act. Apart from the complete lack of any evidence to this effect Inspector Dunlop’s investigation was but one step in a process which also involved other officers senior to him.
Even if the appointment of an inappropriate person to conduct an investigation constituted “a detriment” within s49D 2(d) there is no evidence that it was in any way related to a disability suffered by the applicant.
For the above reasons in our opinion the applicant has failed to prove any basis for relief. His application should be dismissed.
Should the respondent seek costs we give him leave to make submissions in writing within 21 days and the applicant is to reply within 14 days. Thereafter the matter to be decided on the papers.
Orders
(1)Application dismissed
(2)Subject to paragraph 56 above no order as to costs.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Amendments
30 March 2015 - Typographical error on coversheet of respondent representative
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