Zraika v Commissioner of Police, New South Wales Police
[2004] NSWADT 67
•04/07/2004
CITATION: Zraika -v- Commissioner of Police, New South Wales Police [2004] NSWADT 67 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Malek Zraika
RESPONDENT
Commissioner of Police, New South Wales PoliceFILE NUMBER: 031078 HEARING DATES: 15 & 16/12/2003 SUBMISSIONS CLOSED: 12/16/2003 DATE OF DECISION:
04/07/2004BEFORE: Rees N - Judicial Member; Hiffernan N - Member; Monoghan-Nagle L - Member APPLICATION: Disability Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED: Anti-Discrimination Act 1977
Disability Discrimination Act 1992 (Cth)CASES CITED: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5
Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21
Director General of Education v Breen [1982] IR 93
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Holdaway v Qantas Airways Limited (1992) EOC 92-430
Loscialpo v NSW Police Service (unreported, Human Rights and Equal Opportunity Commission, 2 September 1999)
X v Commonwealth (1999) 200 CLR 177REPRESENTATION: APPLICANT
D Hillard, solicitor
RESPONDENT
K Nomchong, barristerORDERS: 1. Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $10,000 by way of damages; 2. Within 42 days of the date of this order the respondent must take all necessary steps to determine the applicant's application to join the NSW Police Service without reference to the existing standard for visual acuity; 3. Within 42 days of the date of this order the applicant is to file and serve written submissions in support of any application he proposes to make for costs; 4. Within 14 days of receiving the applicant's written submissions in relation to costs the respondent is to file and serve written submissions in response; 5. Any application by the applicant for an order for costs is to be set down for hearing on a date to be determined by the Registrar; 6. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders.
REASONS FOR DECISION
Introduction
1 In this case the applicant, Mr Malek Zraika, has claimed that the Commissioner of Police (the respondent) unlawfully discriminated against him on the ground of disability by rejecting his application to join the NSW Police Service.
2 The applicant has impaired vision in his left eye as a result of an injury which he sustained to that eye when he was a small child. He has amblyopia. This means that he has loss of visual acuity, or sharpness of vision. The condition is not correctable by the use of spectacles, or other optical means. In September 2002 the applicant submitted a written application to the respondent to join the NSW Police Service. As part of that written application it was necessary for the applicant to provide the results of a visual acuity test conducted by an optometrist, or an ophthalmologist. In October 2002 an employee or agent of the respondent rejected Mr Zraika’s application to join the NSW Police Service on the basis of those test results. Mr Zraika claimed that this action constituted unlawful discrimination on the ground of disability.
3 The respondent argued that he was lawfully entitled to reject Mr Zraika’s application to join the NSW Police Service because Mr Zraika’s visual impairment, as evidenced by his test results, rendered him unable to perform the inherent requirements of the job of a police officer. The decision in this case turns upon the issue of whether the respondent has satisfied the burden of proof placed upon him by statute of establishing that the applicant, when rejected, was unable to perform the inherent requirements of the job of a police officer, or that he was able to perform those inherent requirements only with a level of assistance which imposed unjustifiable hardship upon the respondent.
4 The case was heard by the Tribunal in Sydney on 15 and 16 December 2003. Both parties were legally represented: Mr Hillard represented the applicant and Ms Nomchong represented the respondent.
The evidence
5 The applicant was the only witness to give evidence in support of his complaint. He was cross-examined by Ms Nomchong. Mr Hillard tendered the report of the President of the Anti-Discrimination Board (ADB) and copies of correspondence between the respondent’s solicitor and himself concerning the reasons why Mr Zraika’s application to join the NSW Police Service was rejected.
6 Three witnesses gave evidence for the respondent: Assistant Commissioner Robert Waites, the Commander of the Greater Metropolitan Region, Inspector Joseph May, the Manager of the NSW Police Recruitment Branch and Dr Tom Norris, a Police Medical Officer. Assistant Commissioner Waites and Dr Norris were cross-examined by Mr Hillard, but Inspector May was not required for cross-examination.
7 Ms Nomchong tendered, without objection, two reports from Associate Professor Stephen Dain, the Head of the School of Optometry and Vision Science at the University of NSW. These reports related to eye examinations of Mr Zraika conducted on 7 August 2003 and 19 August 2003. Mr Zraika voluntarily attended those examinations. Professor Dain’s reports also contained his expert opinion about matters in issue in this case. That expert opinion was given in response to various questions asked of him by the respondent’s solicitor about the impact of Mr Zraika’s visual impairment upon his capacity to perform the duties of a police officer.
8 Ms Nomchong also tendered a report and two articles concerning vision standards for police officers in parts of North America, various materials concerning security industry and firearms licensing in NSW, and a report to the NSW Police Service by the Australian Optometrical Association (NSW Division), dated October 1995, titled ‘Eyesight Guidelines for Recruit Level Entry to the Police Service’.
The issues not in dispute between the parties
9 In accordance with usual practice in the Equal Opportunity Division of the Tribunal, the parties were directed to file Points of Claim and Points of Defence following the referral of the applicant’s complaint to the Tribunal by the President of the ADB. As a result of admissions made by the respondent in his Points of Defence, admissions made by the respondent’s solicitor in correspondence with the applicant’s solicitor, and admissions made by Ms Nomchong during the course of the hearing, the matters in dispute between the parties were confined to the question of whether the decision by the respondent to reject Mr Zraika’s application to join the NSW Police Service fell within the defence, or exception to liability, set out in s 49D(4) of the Anti-Discrimination Act 1977 (the Act).
10 The events that lead to the applicant lodging a complaint of discrimination on the ground of disability against the respondent, with the President of the ADB on 23 October 2002, were not in dispute. In August and September 2002 the applicant applied to join the NSW Police Service. In broad terms there were two steps to this process. The first step involved admission to the academic component of training for police officers. This training is offered by the Police College in Goulburn and Charles Sturt University. For the purposes of this case it is unnecessary to set out the details of the association between the Police College and Charles Sturt University. It is sufficient to record that all applicants to join the NSW Police Service are required to have completed the Diploma of Policing Practice. Once an applicant has successfully completed the academic component of training it is necessary to receive security and health approvals in the second part of the process of joining the NSW Police Service as a police officer.
11 Shortly after submitting his application to join the NSW Police Service Mr Zraika was informed in a letter dated 13 August 2002 from the Director of Student Administration at Charles Sturt University that he satisfied the minimum academic requirements for admission to the Diploma of Policing Practice course and that he had been accepted for admission to the academic program, subject to satisfying a professional suitability assessment. The applicant was directed to complete a Professional Suitability Assessment kit. The kit included documentation which required medical certification that the applicant met the NSW Police health and fitness standards. The applicant was required to complete a health self-assessment and a disclosure form. He was also required to submit to examinations by a general practitioner, an audiologist, and an optician or an ophthalmologist. The medical portion of the kit, which extended over 18 pages, contained various forms for these health professionals to complete.
12 The medical documentation which Mr Zraika submitted to the respondent as part of his application to join the NSW Police Service was admitted into evidence. Whilst the exact date upon which the medical portion of the Professional Suitability Assessment kit was submitted to the NSW Police Service is not clear, the applicant’s general practitioner, Dr Burchett, made the last dated entry on 6 September 2002. The document was obviously submitted shortly after that date because the applicant was informed in a letter dated 11 October 2002 from Ms Shailini Baldoz, Recruitment Officer with the NSW Police Service, that “you do not meet our medical standards and as a result we are unable to progress your assessment or support your entry to the Diploma of Policing Practice”.
13 It is unclear whether it was Ms Baldoz, or some other person, who made the decision which was communicated to the applicant in the letter of 11 October 2002. There was no evidence before us concerning the identity of the person who determined that the applicant did not meet the medical standards of the NSW Police and should be denied entry to the Diploma of Policing Practice course. However, the reasons for the rejection were clear. Dr Norris stated in paragraph 3 of his affidavit that “Mr Zraika was not granted medical suitability to proceed with his application to join NSW Police because he was unable to attain the minimum level of visual acuity in his left eye (6/9)”.
14 In his professional suitability application form Mr Zraika disclosed that at the time of his application he was 31 years of age. He recorded that he had worked previously as a motor mechanic and as a security guard. Mr Zraika noted that he spoke Arabic, as well as English. He listed his regular sporting activities over the previous five years as squash, tennis, weight lifting, rugby league and kung fu. In answer to a specific question on the health self-assessment form Mr Zraika disclosed that he had an eye disorder. He also reported that he had had eye surgery in 1983 and 1991 “to correct a lazy eye” but that he was unable to provide a report from the doctor who had performed the surgery as that doctor was dead.
15 Mr Zraika’s general practitioner, Dr Burchett, recorded on the part of the form which he was required to complete that Mr Zraika’s eyes were “abnormal”. The doctor wrote: “Had L eye squint corrected in childhood and later redone but no loss of visual fields and no visible squint to anyone looking at him”. Dr Burchett completed a declaration concerning his knowledge of Mr Zraika’s health and his assessment of his capacity to perform the activities required of a recruit and “all the duties of operational policing”. In order to assist general practitioners to make these declarations Section 1 of the form contained information about these activities and duties under the heading ‘Advice on the functional requirements for the Diploma of Policing Practice and Operational Policing duties’. General practitioners were required to consider the various activities and duties set out in Section 1 of the form and then indicate whether in their professional opinion the applicant was capable of performing (1) the activities required of a recruit and (2) the duties required of an operational police officer. Dr Burchett answered “Yes” to both questions.
16 It is important to record at this stage the matters set out in Section 1 of the form which Dr Burchett was directed to consider before completing his declaration that, in his professional opinion, Mr Zraika was capable of performing the activities of a police recruit and the duties of an operational police officer. Under the heading ‘Sessions 1 & 2 of the Diploma’ the following information is found:
· walk, sprint, jump, squat, run and kneel without difficulty
During this period of the Diploma of Policing Practice (DPP) students will participate in a range of classroom, field-based and physical activities. Before entering the program, aside from academic requirements, they should develop an ability to:
· safely participate in maximal activities for the purpose of attaining fitness levels equivalent to the national average
· hear and comprehend questions in the presence of background noise, over two-way radio and without eye-view of the speaker
· hear and follow instructions on an indoor pistol range while wearing earmuffs
· safely handle a firearm without occasioning risk to themselves or others
· use both arms and hands with a reasonable degree of overall strength and dexterity when handling batons, handcuffs and firearms
· safely engage in self-defence training
· demonstrate a high standard of communication skills during operational policing and Courtroom simulations
17 The following information is found under the heading ‘Sessions 3, 4 & 5 of the Diploma – Operational Policing Duties’:
· physically restrain individuals and utilise self-defence techniques where necessary
Before entering the operational phase of the Diploma of Policing Practice, students must successfully gain employment as a Police Officer. They should have a demonstrated capacity to perform the full range of operational policing duties which, at different times, would require them to:
· apply discerning judgment in the application of police powers and use of appointments (eg handcuffs, batons, capsicum spray and firearm)
· stabilize the scene of accidents, emergencies, disasters or crime scenes
· assist victims and manage incidents involving significant conflict or emotional distress (such as domestic violence, child abuse and SIDS)
· perform crowd control at community events or demonstrations
· walk long distances while performing beat duty or stand for lengthy periods on traffic duty
· communicate in noisy environments, including use of police radio whilst siren is in operation and understand with clarity softly spoken instruction
· perform shifts of up to 12 hours duration (or longer if overtime) day and night, any day of the year
· cope with climatic variables associated with outdoor duties
· adapt to regular shift changeover and protracted investigations not conducive to regular breaks
· accurately discern, record and provide evidence of factors, such as colour, associated with the identification of suspects, offenders, vehicles, etc.
18 Section 5 of the form was headed ‘Vision’. In an earlier part of the form applicants were advised that this section was to be completed by an optometrist or an ophthalmologist. In Mr Zraika’s case an ophthalmologist, Dr Retsas, completed Section 5. The first question on the form for the ophthalmologist to answer was: “What is the applicant’s uncorrected visual acuity?” An answer was required in relation to “both eyes” and “each eye”. For both eyes Dr Retsas recorded “6/5”; for the applicant’s right eye he recorded “6/5”. In relation to the applicant’s left eye the notation was “CF” which the parties agreed meant ‘count fingers’. It was common ground between the parties that these visual acuity scores were results on the Snellen test which Dr Retsas had administered to Mr Zraika. The Snellen test is described below at [63]. The form which Dr Retsas completed contained the following notation:
Agreed material facts
Applicants must achieve a corrected visual acuity of 6/6 with both eyes and 6/9 with each eye, either corrected or uncorrected, and will not be considered further if they do not meet the standard.
19 The applicant claimed that the respondent unlawfully discriminated against him in contravention of s 49D(1)(b) of the Act. The respondent admitted that his relevant treatment of the applicant satisfied the requirements of s 49D(1)(b) but argued that this treatment was rendered lawful by s 49D(4) of the Act which contains a defence, or exception to liability, to conduct declared unlawful by sections 49D(1)(b) and 49D(2)(c). For present purposes s 49D(2)(c) is not relevant for it deals with dismissing an employee on the ground of disability.
20 Section 49D(1) provides as follows:
21 In order for an applicant to succeed in a complaint based on a contravention of s 49D(1)(b) of the Act it is necessary for the Tribunal to be satisfied that following material facts existed or occurred at the time the respondent is alleged to have breached the Act: (1) the respondent was an employer within the meaning of the Act, (2) the applicant had a disability within the meaning of the Act, (3) the applicant was a person who sought employment with the respondent, and (4) in determining whether to offer the applicant employment, the respondent discriminated against him/her on the ground of his/her disability.
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.
22 Item (4) is given meaning by s 49B of the Act which defines discrimination on the ground of disability. Section 49B contains definitions of what are generally known as direct discrimination and indirect discrimination. As it was agreed between the parties that this was a case of direct discrimination, s 49B(1)(a) is the relevant part of the statutory definition of discrimination on the ground of disability. There are two elements to the statutory definition of direct discrimination: differential treatment and causation (see Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5).
23 Differential treatment is the shorthand term given to that part of the statutory definition of direct discrimination which is concerned with establishing whether the respondent treated the applicant less favourably than he treated, or would have treated, a person who did not have the applicant’s disability in the same or similar circumstances. Causation is a descriptive term used to describe the grounds or reasons for any differential treatment. In the words of the statute, it is necessary to consider whether the respondent treated the applicant as he did on the ground of the applicant’s disability. The applicant’s disability must have had a “causally operative effect” (Street CJ in Director General of Education v Breen [1982] IR 93 at 95) upon the decision by the respondent to afford the applicant differential treatment in order for there to be a finding of causation.
24 By his admission that his treatment of the applicant fell within s 49D(1)(b) of the Act the respondent has admitted the four matters set out in paragraph [21]. One of those matters, the applicant’s disability, is of relevance to the so-called ‘inherent requirements’ defence upon which the respondent has relied. The respondent admitted that the applicant had, and continues to have, a “disability” within the meaning of the statutory definition of that term which is found in s 4 of the Act. It was not in dispute that the applicant suffers from amblyopia which is the medical term to describe loss of visual acuity without structural abnormality of the visual pathway and which is not correctable by optical means. In terms of the statutory definition of “disability”, which is expressed in functional rather than medical terms, the applicant’s condition clearly falls within paragraph (a) of that definition which is “total or partial loss of a person’s bodily or mental functions or of a part of a person’s body”.
25 It was not in dispute that the applicant has sustained a partial loss of function of his left eye. However, as we understood the arguments advanced by both parties, the extent of that partial loss of bodily function was in dispute even though the parties did not expressly acknowledge that fact. The conclusion which we have reached in this case renders it unnecessary to resolve that dispute. Nevertheless, it is important to record that whilst the respondent has admitted that the applicant has a disability within the meaning of s 4 of the Act, the respondent and the applicant are at odds concerning the extent of that disability and its consequent impact upon the capacity of the applicant to perform the duties of an operational police officer.
26 As we noted at [10] above, the evidence in this case reveals that the process of joining the NSW Police Service as a police officer is complex. Had the respondent favourably assessed the applicant’s professional suitability materials this would not have resulted in Mr Zraika automatically gaining employment as a police officer. It would have been necessary for the applicant to have successfully completed the Diploma of Policing Practice course and to have satisfied further professional suitability standards before he could have become a police officer. The parties acknowledged these complexities but agreed that, despite them, s 49D(1)(b) was the appropriate substantive provision in this case.
The ‘inherent requirements’ defence
27 The respondent has relied upon the defence, or exception to liability, in s 49D(4) of the Act which states:
(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.
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
28 The concept of “unjustifiable hardship”, referred to in section 49D(4)(b), is given meaning by section 49C of the Act which states:
29 By virtue of s 109 of the Act the respondent bears the burden of proving that the exception to liability contained in s 49D(4) is made out in this case. That burden, which must be met at the civil standard of the balance of probabilities, is significant in this case. Section 109 states:
In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and
(b) the effect of the disability of a person concerned, and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
30 There is an equivalent provision to s 49D(4) of the NSW Act in the Commonwealth legislation which deals with discrimination on the ground of disability, the Disability Discrimination Act 1992. That equivalent, s 15(4) of the Disability Discrimination Act 1992, was considered at length by the High Court in X v Commonwealth (1999) 200 CLR 177. The statements made by the High Court in that case concerning s 15(4) of the Commonwealth Act are clearly binding upon us when considering the operation of s 49D(4) of the NSW Act. Not only is the wording of s 49D(4) of the NSW Act the same as that contained in s 15(4) of the Commonwealth Act, but the provisions in the Commonwealth Act to which s 15(4) provides an exception, namely sections 15(1)(b) and 15(2)(c), are effectively the same as those in the NSW Act to which s 49D(4) provides an exception, namely sections 49D(1)(b) and 49D(2)(c).
Where by any provision of this Act or the regulations, conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any inquiry lies upon the respondent.
31 This state of affairs did not come about by accident, or as a result of the drafters of the NSW Act informally ‘borrowing’ the language used in a similar statute in another jurisdiction. Section 49D was inserted into the Act in 1994 by the Anti-Discrimination (Amendment) Act1994. In his Second Reading Speech to the Legislative Council the then Attorney General, the Hon JP Hannaford MLC, stated when introducing the Bill that “…the Government has taken the opportunity to redraft the provisions of the Act to achieve, whenever possible, consistency with the provisions of the Commonwealth Disability Discrimination Act 1992 which came into effect on 1 March 1993”. (Vol 241 NSW Parliamentary Debates (Legislative Council) 4 May 1994, at p 1828).
32 In his Points of Defence the respondent did not specifically disclose his reliance upon s 49D(4) of the Act as he would have been required to do in a court of strict pleading. The substance of the respondent’s reliance upon s 49D(4) of the Act was explained, however, by Ms Nomchong in paragraph 30 of her written submissions which reads as follows:
33 The same point was made by the respondent’s solicitor in a letter to the applicant’s solicitor. In letters dated 20 May 2003 and 28 July 2003, which were tendered without objection, the solicitors for both parties engaged in an informal process of administering and answering interrogatories. The following question and answer are set out in a letter which the respondent’s solicitor wrote to Mr Hillard on 28 July 2003:
The Respondent asserts that the Applicant would be unable to carry out some of the inherent requirements associated with the duties of a police officer on full operational duties, most significantly that he would be unable to carry out some of those duties safely with respect to himself, his colleagues and members.
34 Whilst the references to performing the duties in an “effective manner” and with “the level of…diligence necessary” are rather unclear, we did not understand the respondent to be challenging Mr Zraika’s physical ability to perform any of the inherent requirements of the position of an operational police officer.
Is the Police saying that Mr Zraika is unable to perform the full range of operational police duties?
Yes, in a safe and effective manner taking into account all reasonable accommodation.
The majority of the duties listed in the Professional Suitability Application require an average to good visual ability to be able to perform them safely and effectively under the varying light and operational conditions. Your client’s visual ability is below the level needed in order for the duties to be carried out with the level of safety and diligence necessary. It is an inherent requirement that a Police Officer is able to carry out his or her duties without posing a risk of safety to him or herself, co-workers and the general public.
35 As we have observed, the operation of the ‘inherent requirements’ defence was explained by members of the High Court in X v Commonwealth (1999) 200 CLR 177. In that case Gummow and Hayne JJ delivered a joint judgment with which Gleeson CJ and Callinan J separately recorded agreement. These four justices formed the majority which dismissed X’s appeal to the High Court from a decision of the Full Court of the Federal Court. Kirby J dissented. McHugh J effectively agreed with the majority’s interpretation of the key provisions in the Disability Discrimination Act 1992. Whilst McHugh J did not advance an interpretation of the ‘inherent requirements’ defence which departed from the majority view in any way which is of relevance to this case, he disagreed with the four majority justices about the outcome of the appeal. The effect of the majority decision was that the case was remitted to the Human Rights and Equal Opportunity Commission to be re-heard in accordance with the reasons given by the Full Court of the Federal Court. Because McHugh J disagreed with some of the statements made by members of the Full Court of the Federal Court concerning the issues which required resolution by the Commission he preferred an outcome which would have required the Human Rights and Equal Opportunity Commission to re-hear the matter in accordance with his reasons for decision.
36 McHugh J engaged in the most comprehensive analysis of the ‘inherent requirements’ defence. Many of McHugh J’s statements about the operation of that defence were expressly or impliedly supported by a majority of the Court. The following statements by McHugh J (200 CLR 177 at 190) concerning s 15(4) of the Disability Discrimination Act 1992 were acknowledged with approval by Gummow and Hayne JJ (at 208) and consequently appear to have commanded majority support:
37 In Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21 at [89] to [93] an Appeal Panel of this Tribunal explained its understanding of the proper approach to a case in which the ‘inherent requirements’ defence is raised:
[39] Section 15(4) must be read as a whole. When it is so read, it is clear enough that the object of the subsection is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was: (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also (b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide.
[40] If s 15(4)(a) provided a defence independently of s 15(4)(b), the employer could lawfully discriminate against an employee even though the employee could carry out the inherent requirements of the particular employment once he or she was provided with services or facilities the provision of which imposed no undue hardship on the employer.
38 Because s 109 of the Act provides that the respondent bears the burden of proving that his activities fell within s 49D(4) of the Act, the first thing that a respondent who seeks to rely upon the ‘inherent requirements’ defence must do is to determine the inherent requirements of the position in question. Appropriate identification of the inherent requirements of the position is a pre-condition to proving that the applicant is unable to perform those inherent requirements, both alone and with a level of assistance which would impose an unjustifiable hardship on the respondent. As the Appeal Panel noted in Maxwell , however, the employer’s own statement of the inherent requirements is not conclusive. It is ultimately a matter for the Tribunal to determine, objectively, the inherent requirements of the position in question. Were the position otherwise an employer could create a totally artificial list of inherent requirements in order to avail him/herself of the s 49D(4) defence.
[89] Thus, as the Tribunal pointed out in Coleman v Commissioner of Police [2001] NSWADT 34 at paragraph 40, “it is necessary for an employer to consider not only whether a person with a disability is able to carry out the inherent requirements of a particular job without assistance, but also whether that person may be able to carry out the inherent requirements with a level of assistance which does not impose an unjustifiable hardship on the employer”. In order to undertake this analysis, and thus fall within the exception created by section 49D(4), an employer must do at least two, and possibly three, things when considering a job application by a person with a disability. First, the employer must determine the inherent requirements of the particular position in question. Secondly, the employer must determine whether the applicant with a disability is able to perform those inherent requirements without assistance. Thirdly, if the second issue results in a finding adverse to the person with a disability, the employer must determine whether the applicant may be able to carry out the inherent requirements of the position with a level of assistance which does not impose an unjustifiable hardship on the employer.
[90] In the first instance it is a matter for the employer to determine the inherent requirements of the position in question. Ultimately, however, it is a matter for the Tribunal in a litigated complaint. The proper process was described by McHugh J in X v Commonwealth of Australia (2000) 74 ALJR 176 at 182:
[91] The reference in the last sentence to it being a matter in the end for “the Commission” to determine whether a requirement is inherent in a particular employment is a reference to the function previously exercised by the Human Rights and Equal Opportunity Commission in conducting inquiries into complaints lodged under the Disability Discrimination Act 1992 . Constitutional considerations aside, that function was similar to the one which is exercised by this Tribunal in conducting inquiries under the NSW Act.
[36] What is an inherent requirement of a particular employment will usually depend upon the way in which the employer has arranged its business…
[37] Unless the employer’s undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.
[92] Consequently, it was ultimately a matter for the Tribunal to determine what were the inherent requirements of the position for which Mr Maxwell had applied. Thus there is no substance to Ms Anderson’s argument that the Tribunal erred in law by substituting its view of the inherent requirements of the position for that of the Commissioner when, by virtue of section 31(1) of the Correctional Centres Act 1952, the Commissioner was entitled to determine “the duties of correctional officers of the various classes”. The Commissioner was obliged to exercise the power granted to him by section 31(1) of the Correctional Centres Act 1952 in accordance with the general law (see McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 413), which included the disability discrimination provisions of the Act.
[93] The Tribunal was obliged to objectively determine the inherent requirements of the position in question giving “appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment” (per McHugh J in X’s Case at p 182)…
39 Once the inherent requirements of the position in question have been identified the respondent must satisfy the Tribunal that at the time he engaged in conduct which would otherwise amount to a contravention of s 49B(1)(b) he had determined (1) that the applicant was unable to perform those inherent requirements without assistance and (2) that he could not perform the inherent requirements without a level of assistance which would impose an unjustifiable hardship upon the respondent. In this case the respondent must satisfy the Tribunal that he had made a determination about these matters at the time Mr Zraika’s application was rejected which was on or before 11 October 2002.
40 On the material before us we have concluded that it is not possible for the respondent to satisfy the Tribunal of either of these matters because the respondent has not produced sufficient evidence about the first step in the process. The respondent has not satisfied us that at the time he rejected Mr Zraika’s application that he (the respondent) had identified the inherent requirements of the position of a police officer. The only evidence concerning the respondent’s determination of the inherent requirements of a police officer, as at 11 October 2002, was the entries on the medical professional suitability application form which have been reproduced at [16] and [17] above. Those entries are too broad and too general to be considered an adequate description of the inherent requirements of an operational police officer. They are not capable of being used as any sort of reasonable yardstick against which an applicant with some loss of visual function, such as Mr Zraika, can be assessed. Our conclusion concerning the inadequacy of this material is confirmed by the respondent’s own expert, Associate Professor Dain, who stated at paragraphs 40 and 41 of his report dated 28 August 2003:
41 Ms Nomchong claimed in her written submission, quite correctly, that the inherent requirements of the position of a police officer include the capacity to perform the duties safely. That is what the High Court decided in respect of a soldier in X v Commonwealth (1999) 200 CLR 177 and, as McHugh J noted in that case (at 188), it is an inherent requirement of any employment that the duties be performed without risk to the health or safety of other employees. But this does not mean that it is possible for an employer to assert generally that a person with a particular disability cannot perform the duties of a position safely and thereby rely upon the ‘inherent requirements’ defence without first adequately identifying those inherent requirements and assessing whether they are incapable of being performed safely, either alone or with assistance, by that person because of his/her particular disability.
I am aware that the issue of inherent requirements in policing is under review and that there is no list available, at present. You have provided me with Section 1 of the Professional Suitability Application – Medical (page 2) which covers Sessions 1-5 of the Diploma.
In many ways the statement is too general to illustrate what is expected of the applicant/trainee clearly enough for me to comment in detail. I can point to the areas where there is potential for problems. Where no mention is made of one of the bullet points it is because I have not envisaged any problems.
42 In her written submissions Ms Nomchong responded to the observation made by Mr Hillard during the hearing that the respondent had not adequately identified the inherent requirements of the position of a police officer. She stated:
43 This submission is at odds with the statements made by Gummow and Hayne JJ in X v Commonwealth (1999) 200 CLR 177 at 208-209 concerning the need to appropriately identify the inherent requirements of a position in a case where the employer seeks to rely upon the statutory defence:
The legal representative for the Applicant, during the course of the hearing made several critical comments as to the absence of a comprehensive list of inherent requirements of a police officer. No such criticism should be accepted. It is abundantly clear that to construct such a list would involve either broad generalised description or, on the other hand, an endless list of the minutiae of the many and varied tasks which a fully operational police officer is required to undertake.
44 As Gummow and Hayne JJ point out in the final sentence of the quoted portion of their judgment, it is simply not possible to move to the substance of the statutory defence – to a consideration of whether the person with a disability is unable to perform the inherent requirements of the position because of his/her disability – without first having properly identified the inherent requirements of the position.
[103] It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s 15(4)(a), it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others…
[105] The inquiry that was required in the present case was an inquiry about what were the requirements of the particular employment. As we have said, that would begin by identifying the terms and conditions of service which revealed what the Army required of the appellant, not only in terms of tasks and skills, but also the circumstances in which those tasks were to be done and skills used. From there the inquiry would move to identify which of those requirements were inherent requirements of the particular employment…Only when the inherent requirements of the employment have properly been identified can one ask whether because of the employee’s disability the employee was unable to carry out those requirements. [emphasis added]
45 McHugh J made the same point in different language when he stated in X v Commonwealth (1999) 200 CLR 177 at 199:
46 The overall objective of this part of the legislation appears to be that the process of determining whether a person with a disability can or cannot perform the requirements of a particular position should be fair and transparent. There may be at least two good policy reasons why the legislature has cast the statutory defence in a way which requires the employer to properly identify the inherent requirements of the position (to use the language of Gummow of Hayne JJ), or to determine the precise content of the particular employment (to use the language of McHugh J).
[67] As a matter of law, the Commission could not discharge its inquiry under s 79 of the Act without determining the precise content of the “particular employment” of X and whether, by reason of an essential feature or defining characteristic of that employment, X’s disability posed a real risk to the safety or health of other soldiers or employees of the Commonwealth. It was also necessary to make those findings so that, if necessary, the Commission could also find whether X could carry out the inherent requirements of the particular employment with the aid of services or facilities which the Commonwealth could provide without unjustifiable hardship. It follows that the failure to determine those matters also constituted errors of law.
47 First, as Samuels JA observed in Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 265 when discussing earlier NSW laws concerned with discrimination on the grounds of physical and intellectual impairment:
48 An employer who rejects an applicant for employment who has a disability, because of that person’s disability, can ensure that he or she is not motivated by any of the matters to which Samuels JA referred, such as ignorance of the impact of the disability on the person concerned or lack of understanding of the capacities of the person with a disability, by clearly articulating the tasks which must be undertaken by an occupant of the position in question, and by then assessing whether the particular applicant is able to perform those tasks unaided, or whether he/she could perform them only with a level of assistance which would impose an unjustifiable hardship on the employer.
“Discrimination” is the label which the Act attaches to certain kinds of conduct which may be motivated by want of compassion or lack of understanding, or by ignorance or apathy, or by brutality, hostility or prejudice. The Act does not concern itself with motive nor does it make discrimination under Part IVA depend upon proof of some deliberate intent to injure the prospects or deny the aspirations of the physically handicapped.
49 The second policy reason concerns the impact which rejection by a prospective employer may have upon a person with a disability. It seems likely that a person with a disability whose job application is rejected in circumstances which fall within s 49D(4) of the Act is more likely to feel that his/her job application has been fairly considered if the inherent requirements of that position have been clearly articulated so that he/she can appreciate why an employer has determined either that he/she is unable to perform those inherent requirements, or could do so only with a level of assistance which would impose an unjustifiable hardship on the employer.
50 In our opinion s 109 of the Act makes it quite clear that, in the first instance, it is the task of the respondent to appropriately identify the inherent requirements of the position in question and to satisfy the Tribunal that at the time he rejected Mr Zraika’s application he had concluded, by reference to those inherent requirements, that Mr Zraika was unable to perform those inherent requirements, or could do so only with a level of assistance which imposed an unjustifiable hardship on the respondent. Even though the Tribunal is directed by s 96 of the Act to conduct an inquiry into complaints referred to it for determination, it is not the task of the Tribunal to independently determine the inherent requirements of the position. We have neither the authority nor the resources to do so. The Tribunal’s task is limited to deciding whether a list of inherent requirements which is advanced by the respondent is an objective and appropriate description of the inherent requirements of the position for which Mr Zraika applied. To repeat the words of Professor Dain, the list of inherent requirements which is reproduced at [16] and [17] above is “too general to illustrate what is expected of the applicant”. In the absence of a list of inherent requirements expressed with a reasonable degree of particularity it is impossible to determine whether Mr Zraika was unable to carry out the inherent requirements of the position of a police officer because of his disability.
51 The respondent lead evidence from Assistant Commissioner Waites concerning his opinion about what he described as “part” of the inherent requirements of the position of a police constable performing general policing duties. Undoubtedly Assistant Commissioner Waites is highly qualified to express that opinion, as he is a senior police officer with 37 years experience. There are two reasons, however, why this evidence does not assist the respondent in his claim that his actions fell within s 49D(4) of the Act.
52 First, the evidence given by Assistant Commissioner Waites was his opinion as at 12 November 2003 (which was the date upon which swore his affidavit) about some of the inherent requirements of the position of a police officer. There was no evidence that the person who rejected Mr Zraika’s application on or before 11 October 2002 made reference to the matters set out in Assistant Commissioner Waites’ affidavit when making that decision. In fact, it appears that the effective date of the decision which resulted in Mr Zraika’s application being rejected was a date well prior to 11 October 2002 for the professional suitability form which Mr Zraika completed clearly indicated that it was the respondent’s policy that a person who did not achieve a corrected visual acuity of 6/6 with both eyes and 6/9 with each eye would be rejected. There was no evidence which suggested that when the respondent adopted that particular mechanism for determining whether a person could perform the inherent requirements of the position of a police officer he made reference to the list of inherent requirements developed by Assistant Commissioner Waites. In fact, there is no evidence which suggests that the Assistant Commissioner’s list existed when the visual acuity policy was adopted and when Mr Zraika’s application was rejected.
53 Secondly, the list of inherent requirements developed by Assistant Commissioner Waites was presented as his opinion. There was no evidence which suggested that the respondent had actually adopted this list as his determination of the inherent requirements of the position of an operational police officer. It was not clear whether these were the ‘official’ inherent requirements against which applicants with a disability had been assessed and would be assessed in the future.
54 The task of compiling a statement or list of the inherent requirements of the position of an operational police officer is undoubtedly difficult and complex. Presumably, it will require the investment of considerable time and expense. But that is what the law requires if the respondent wishes to avail himself of the right to reject job applicants with a disability. The NSW Parliament passed this legislation 10 years ago and the High Court explained what it meant, and what it required, five years ago. In X v Commonwealth (1999) 200 CLR 177 the High Court clearly indicated that the Commonwealth Government was required to complete this task if it wished to lawfully dismiss a soldier with a disability.
55 The NSW Act requires that the respondent complete this task if he wishes to lawfully reject applications by people with a disability to join the NSW Police Service. As the law currently stands it is not open to the respondent to assert that the task has not been performed because it is too difficult. No doubt reasonable efforts by employers to appropriately identify the inherent requirements of the positions in their organizations, accompanied by reasonable efforts to devise fair and clear mechanisms to gauge whether an applicant with a disability can perform those inherent requirements, will be met by a practical and common sense response from courts and tribunals.
56 Even though we have decided that it is not possible to consider the substance of the s 49D(4) defence because the respondent has not met his threshold obligation of proving that he had appropriately identified the inherent requirements of the position of an operational police officer at the time Mr Zraika’s application was rejected, it seems desirable that we make some comments about the substance of the s 49D(4) defence in case our conclusion concerning the respondent’s inadequate identification of the inherent requirements of the position is wrong, and because the respondent’s right to continue to use the mechanism which he relied upon to determine whether Mr Zraika could perform the inherent requirements of the position has been effectively challenged by the applicant as a result of one of the remedies he has sought.
57 If we assume that the respondent had appropriately identified the inherent requirements of an operational police officer, either in the lists which were on the professional suitability application form (reproduced at [16] and [17] above), or in the list developed by Assistant Commissioner Waites, it is necessary to determine whether the mechanism used by the respondent to assess whether the applicant had the requisite degree of visual acuity to perform those inherent requirements safely was reasonable and appropriate and hence lawful. It was not the respondent’s case that Mr Zraika could not physically perform the duties of an operational police officer because of his disability; it was his case, however, that Mr Zraika could not safely perform those duties because of his disability.
58 As Gummow and Hayne JJ pointed out in X v Commonwealth (1999) 200 CLR 177 at 208 when discussing the circumstances in which the inherent requirements defence is applicable: “…the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty, that must be demonstrated.” The respondent has not identified any inherent requirement of the position which he claims Mr Zraika is physically unable to perform. It was his capacity to perform those duties safely which was challenged.
59 One of the mechanisms which the respondent used to determine whether job applicants could perform the inherent requirements of the position of an operational police officer was a pre-determined standard of performance on the Snellen test for visual acuity. It was not in dispute that the standard was visual acuity which was equal to or better than 6/6 in both eyes, and 6/9 in each eye. It was common ground between the parties that Mr Zraika’s failure to meet this standard was the reason why his application was rejected. The respondent used those test results to reach the conclusion that Mr Zraika was unable to safely perform the inherent requirements of the position of an operational police officer.
60 The issue to determine in this part of the case is whether it was lawful for the respondent to rely upon a pre-determined standard of performance in the Snellen test for visual acuity when he rejected Mr Zraika’s application to become a police officer. Before considering what the law requires in such circumstances it is useful to set out what we understood to be the undisputed evidence concerning the respondent’s adoption of a visual acuity standard and his rejection of Mr Zraika’s application.
61 The visual acuity standard which was applied in this case was adopted by the respondent, at some time well prior to the date upon which Mr Zraika applied to join the NSW Police Service, following a report to the NSW Police Service by the Australian Optometrical Association (NSW Division), dated October 1995 and titled ‘Eyesight Guidelines for Recruit Level Entry to the Police Service’. That report indicates that its authors were provided with a list of “competency standards” for police constables. Those competency standards were not in evidence before the Tribunal. The report discusses visual acuity in the context of the competency of “carries out comprehensive and accurate assessments of events and situations”. The report’s authors stated:
62 The report discusses at some length the advantages and disadvantages associated with permitting a police officer who has less than optimum visual acuity to wear spectacles or contact lenses whilst on duty in order to provide for the officer’s corrected visual acuity to be at the optimum level. After recommending that officers be permitted to wear or use various types of spectacles and contact lenses, the authors of the report recommend that “minimum corrected visual acuity should be Snellen 6/6 binocular and 6/9 monocular”. The report does not indicate why the “6/9 monocular” standard was chosen and nor does it contain any discussion about why a person with a monocular standard which is worse than 6/9 in one eye only should be excluded.
Optimum visual acuity is an absolute pre-requisite for this competency. For example a constable with optimal acuity (6/6) would be able to read a vehicle registration plate (minimum resolution 30mm) from a distance of about 100 metres, whereas a constable with only 6/12 acuity would need to be about 50 metres from a vehicle to read the same plate. This represents a very real operational disadvantage which can be avoided by optical correction. In order to optimise the observational performance of police in general service, it is important to require correction to optimal vision, that is 6/6 Snellen visual binocularity.
63 During the course of the hearing the Tribunal asked the parties to provide it with an explanation of what the Snellen test measured and how it was conducted in order to assist us in determining whether a nominated result on the Snellen test was an appropriate mechanism for determining whether a person could safely perform the inherent requirements of the position of an operational police officer. Fortunately, the tendered report from the Australian Optometrical Association (NSW Division) contains useful descriptions of the term “visual acuity” and of the Snellen test:
64 According to the report of Dr Retsas, the ophthalmologist who conducted the vision tests which were recorded on Mr Zraika’s professional suitability application form, Mr Zraika’s performance on the Snellen test was better than “normal” for both eyes, as well for his right eye, because his result on both tests was 6/5. This means that at 6 metres he was able to resolve letters with both eyes, and with his right eye, which a person with “normal” vision could only resolve at 5 metres. Dr Retsas recorded Mr Zraika’s left eye visual acuity as “CF” which the parties agreed means that all he could do with his left eye alone was to count fingers held in front of that eye.
The terminology surrounding the measurement of the powers of vision is complex, and sometimes confusing. The term “visual acuity” normally refers to the acuteness of vision measured when an accurate refractive correction is worn. A sometimes useful term is “habitual visual acuity” which refers to the acuteness of vision measured under conditions which any person normally experiences (e.g. if they wear spectacles, then habitual VA would be measured with those spectacles).
The Snellen system of recording VA uses a fraction. The denominator specifies the distance at which the test is performed. The numerator specifies the distance at which the smallest visible letter subtends an angle of 5 minutes of arc. For normal threshold resolution (the second- last line in most 6-metre letter charts) each bar of the letter subtends 1 minute of arc and the entire letter subtends 5 minutes of arc at the eye.
This size is that which persons with normal vision can just resolve at 6 metres. Thus, normal vision is 6/6 in the metric system (tested at 6 metres), or 20/20 in the American system (20 feet). “Worse” visual acuity occurs when the person cannot resolve the ‘6’ letter but can resolve the larger letters which a normal [sic.] could see at a further distance. For example a person with 6/12 visual acuity can not resolve letters which are smaller than twice the normal threshold size…
65 Similar tests were conducted under the auspices of Professor Dain 10 months after the date upon which the respondent rejected Mr Zraika’s application to join the NSW Police Service. The results of the tests conducted by Professor Dain are clearly not matters upon which the respondent is able to rely when seeking to bring his conduct within s 49D(4) of the Act because the respondent did not have this information in his possession when Mr Zraika’s application was rejected. Those test results, and Professor Dain’s explanation of them, are, however, of relevance to the discretion we must exercise when considering whether to make one of the orders sought by Mr Zraika. Professor Dain’s expert opinion also assists us to determine whether the respondent has established that the visual acuity standard which he applied in this case was a reasonable and appropriate mechanism for determining whether an applicant such as Mr Zraika could perform the inherent requirements of the position of a police officer.
66 At the time the respondent rejected Mr Zraika’s application to join the NSW Police Service all that he (the respondent) knew about Mr Zraika’s disability was the information provided in the medical portion of the professional suitability application. The respondent did not cause Mr Zraika to be examined by any of his own medical officers despite the fact that Dr Burchett, Mr Zraika’s own doctor, had certified that he considered Mr Zraika capable of performing the activities required of a recruit and the duties required of an operational police officer.
67 The decision to reject Mr Zraika’s application to join the NSW Police Service was based solely on the information provided to the respondent in the application form. The only information pertaining to Mr Zraika’s visual acuity which the respondent relied upon when he rejected Mr Zraika’s application was the form completed by Dr Retsas. This is confirmed by the following question and answer which are set out in the letter which the respondent’s solicitor wrote to Mr Hillard on 28 July 2003:
68 We should note, however, for the sake of completion that the tests performed by Ms Jennifer Long for Professor Dain at the University of NSW in August 2003 produced “normal” vision results for Mr Zraika of 6/6 for both eyes, and 6/6 for his right eye. The result for his left eye was 6/120. This means that he has a greatly impaired capacity for vision through his left eye alone. Nothing seems to turn on the minor disparity between the test results recorded by Dr Retsas and those performed under the auspices of Professor Dain.
Exactly what information did the Police rely on when they concluded that Mr Zraika did not meet the Police’s medical standards?
The report of Dr C Retsas, Opthalmologist.
69 Professor Dain arranged for Mr Zraika to complete various tests in addition to the Snellen visual acuity test. In his reports he explained what the test results indicated. Whilst Mr Zraika has some sight in his left eye, Professor Dain reported that the tests revealed that Mr Zraika does not have binocular vision. This has resulted in a loss of stereopsis. Stereopsis means combining two two-dimensional images in order to produce a three-dimensional view. As Professor Dain explained it:
70 Whilst there are many clues to depth perception that are available to monocular people, Professor Dain stated that “stereopsis gives a much finer measure of relative depth and changes in depth”. Loss of stereopsis, according to Professor Dain, “particularly affects the judgment of distance at short range, most notably closer than arm’s length”. Professor Dain stated that a person’s loss of stereopsis may have “potential for problems” when performing the following duties of a police officer which were clearly taken from the lists set out at [16] and [17], above: assembling a firearm, physically restraining a person and utilising self defence techniques where necessary, applying discerning judgment in the application of police power and use of appointments, and accurately discerning, recording and providing evidence of factors such as colour, associated with the identification of suspects, offenders, vehicles, etc.
The two eyes have slightly different views of the world, from different directions, and the brain compares the two images, looks for differences (disparities) and provides for the perception of relative depth. This is the phenomenon of stereopsis.
71 Professor Dain reported that whilst Mr Zraika has lost binocular vision he has not suffered a loss of peripheral vision or visual field on his left side for he still has vision in his left eye. The quality of Mr Zraika’s peripheral vision on his left side and the extent of any loss of quality are not readily apparent from reading Professor Dain’s reports. Because of the visual impairment in his left eye Mr Zraika must have, as a matter of logic, some significant loss of quality of vision in that part of his left visual field where his right eye’s visual field does not overlap. Whilst the extent of that loss of quality of vision and its possible impact upon Mr Zraika’s ability to perform various tasks may be apparent to anyone with the expertise required to assess the test results attached to Professor Dain’s first report, these matters were not explained in any detail in the report. When giving his evidence Dr Norris made much of Mr Zraika’s apparent loss of peripheral vision, but as he had not examined Mr Zraika, or read Professor Dain’s reports, he was unable to do more than offer a general opinion rather than one about Mr Zraika in particular. A fair reading of Professor Dain’s reports (paragraphs 28 and 39 of the report dated 28 August 2003) leads us to conclude that it is the quality of Mr Zraika’s peripheral vision, rather than its actual loss, which may merit further consideration by the respondent.
72 Assuming that the respondent had appropriately identified the inherent requirements of a police officer at the time he rejected Mr Zraika’s application, there are three reasons why he has not satisfied us that his conduct fell within the ‘inherent requirements’ defence, and was, consequently, lawful. First, s 49D(4) of the Act, like s 15(4) of the Commonwealth Act, stipulates that a decision to reject a person’s application for employment because that person, as a result of a disability, is unable to perform the inherent requirements of the position must be reached after “taking into account the person’s past training, qualifications and experience relevant to the particular employment”. Thus, the Act requires that a person’s individual circumstances be considered. As Commissioner Mahoney QC stated (at p 9) in Loscialpo v NSW Police Service (unreported, Human Rights and Equal Opportunity Commission, 2 September 1999) when referring to the equivalent provisions in the Disability Discrimination Act 1992:
73 There was no evidence which suggested that Mr Zraika’s application was rejected after his particular individual circumstances had been taken into consideration. Yet the respondent had material in his possession, provided by Mr Zraika, which appears to be of relevance to the various matters which he was directed by s 49D(4) of the Act to take into account. In his professional suitability application form Mr Zraika reported that he had worked as a motor mechanic and as a security guard. These jobs would appear to require a reasonable standard of visual acuity. Mr Zraika referred to his participation in a number of sporting activities which would appear to require reasonable vision. Mr Zraika indicated on the form that he held a driver’s licence. He also gave evidence at the hearing that he had held a firearms accreditation when he worked for MSS Security as a security guard. It was open to the respondent to have obtained information about Mr Zraika’s firearms experience at the time he considered the application. After considering all of this information the respondent may have decided still not to accept Mr Zraika’s application, but he was obliged to turn his mind to the matters which s 49D(4) of the Act directed him to take into account before reaching that conclusion.
The complainant has emphasised, in my opinion correctly, that the present legislation requires that, in deciding whether there has been discrimination, a judgement must be made of the individual disability and incapacity of the complainant and, that this judgement is to be made by reference not to classes or categories of persons or conditions, but by reference to the actual disabilities and capacities of the individual complainant. There is to be no stereotyping. In a case such as the present, I must consider the actual disabilities and incapacities of the complainant and determine the extent to which they affect what he can do.
74 Secondly, the respondent has not satisfied us that his use of the particular standard of performance on the Snellen visual acuity test which is at issue in this case to exclude the applicant is a mechanism which, by itself, permitted the respondent to claim that he lawfully determined that the applicant was unable to perform the inherent requirements of the position of an operational police officer safely.
75 In X v Commonwealth (1999) 200 CLR 177 members of the High Court made detailed statements about the processes which must be undertaken when an employer seeks to invoke the inherent requirements defence because the employer is of the view that a job applicant with a disability cannot perform the inherent requirements of the position safely because of that disability. McHugh J stated (at 191):
76 When discussing the same issue Gummow and Hayne JJ stated (at 210):
[42] In determining whether the employee poses a risk to the health or safety of others because of his or her disability, the risk must be specifically referable to those persons or things affected by the particular employment. Any risk flowing from a disability cannot affect the employee’s capacity to carry out the inherent requirements of the particular employment unless the degree of the risk arising from the disability is increased, or the consequences of the risk being realised are made more serious, by reference to some essential feature or defining characteristic of the particular employment…
[43] In determining whether the disability prevents the employee from carrying out the inherent requirements of the employment, the following issues will ordinarily have to be addressed:
1. By reason of some essential feature or defining characteristic of the particular employment, does the disability pose a real risk to the safety or health of other persons or the preservation of the property of the employer? In determining whether there is relevantly a real risk, the Commission will have to consider: (a) the degree of the risk; (b) the consequences of the risk being realised; (c) the employer’s legal obligations to co-employees and others, whether arising from a common law duty of care, occupational health and safety statutes, or other aspects of the employment regulatory regime; (d) the function which the employee performs as part of the employer’s undertaking; (e) the organisation of the employer’s undertaking.
2. If the answer to question 1 is no, then the disability does not prevent the employee carrying out any inherent requirement of the particular employment. If the answer to question 1 is yes, however, it will be necessary to determine under s 15(4)(b) whether the employee could carry out the work safely with the assistance of “services or facilities” which the employer could provide without unjustifiable hardship.
77 There is no evidence in this case which suggests that at the time Mr Zraika’s application was rejected the respondent had undertaken the assessments referred to by McHugh J, and by Gummow and Hayne JJ in their joint judgment. Those judgments indicate that it was necessary for the respondent to determine the degree of the risk to others caused by Mr Zraika’s visual impairment and the consequences of any such risks being realised. There was no evidence that these determinations were made at the time Mr Zraika’s application was rejected, or at the time the visual acuity standard was adopted. There was insufficient evidence to satisfy us that the use of Snellen visual acuity test results alone permitted what Gummow and Hayne JJ described as “difficult questions of judgment” to be made.
[109] As we have said, inability to perform must be assessed practically. In particular, we consider that an employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment. If, as the expression “bleed safely” suggests, it is asserted that the appellant could not perform the inherent requirements of his employment in a way that was reasonably safe, difficult questions of fact and degree may very well arise. In particular, deciding what is a “reasonable” degree of risk to others, in a context that is said to require consideration of training for and participation in armed conflict, will present difficult questions of judgment. Much would turn on the nature and size of the risks that are said to arise…
78 The evidence presented at the hearing from Assistant Commissioner Waites, Dr Norris and Professor Dain did not sufficiently identify the degree of risk and the consequences of any risks being realised. Professor Dain referred to the question of safety in his second report, dated 17 November 2003, when he stated:
79 Professor Dain was asked by the respondent’s solicitor to comment upon the appropriateness of the Snellen visual acuity test standard which was used in this case to reject Mr Zraika’s application. According to Professor Dain “the main consequence of specifying a visual acuity for the eyes separately is that of excluding people with stereopsis and/or visual field problems, albeit indirectly”. Whilst excluding people who have stereopsis or visual field problems may ensure that the respondent employs only those people who have optimum vision, the disability discrimination provisions in the Act do not permit the respondent to be so selective. There is insufficient evidence to satisfy us that the degree of risk to others, and that the consequences of any risk are such that, without more evidence, the respondent is entitled to exclude an applicant who does not satisfy the visual acuity standard at issue in this case because that person cannot safely perform the inherent requirements of the position of a police officer.
The final judgment of the issue of “safe and satisfactory performance” is not one that I am able to make. “Safety” and “satisfaction” are, inevitably, rarely absolute and the issue is really whether the increased risk, arising from the performance of such duties by an officer who is essentially monocular, is acceptable or not. The acceptance of risk must be made by the risk taker, in this case the NSW Police. What I am able to do is to identify the potential barriers to safe and satisfactory performance given my experience in relating vision and visual performance to work tasks.
80 Thus, the respondent has not discharged his burden of proof in relation to the first limb of the inherent requirements defence (assuming that the inherent requirements of the position have been appropriately identified) because he has not satisfied us that Mr Zraika’s individual circumstances were taken into account when his application was rejected, and because he has not satisfied us that he was able to determine that Mr Zraika could not safely perform the inherent requirements of the position by relying solely upon Mr Zraika’s failure to achieve the visual acuity standard of 6/9 in each eye.
81 Thirdly, the respondent has not satisfied his burden of proof in relation to the second limb of the inherent requirements defence. Even if an employer is satisfied that a job applicant with a disability cannot perform the inherent requirements of the position - physically, safely or otherwise - because of that person’s disability, the employer is obliged by s 49D(4)(b) of the Act to consider whether the applicant would be able to perform those inherent requirements with services or facilities which are not required by people without the job applicant’s disability. If the provision of services or facilities would permit the job applicant with a disability to perform the inherent requirements of the position, the employer is obliged to provide those services or facilities unless it would impose an unjustifiable hardship upon the employer to do so. In order to consider whether the respondent has complied with s 49D(4)(b) of the Act, we must assume, as we did when considering s 49D(4)(a), that the respondent had appropriately identified the inherent requirements of the position of an operational police officer at the time he rejected Mr Zraika’s application.
82 Section 49D(4)(b) of the Act requires an employer to do at least one and sometimes two things. First, if an employer has determined that a job applicant is unable to perform the inherent requirements of the position in question because of that person’s disability, the employer must determine whether that person could perform those inherent requirements with “services or facilities” which are not provided to employees who do not have that particular disability. The Act does not require the employer to re-design the job, or to create a special job with some tasks missing, but it does require the employer to consider whether the job applicant with a disability could perform the inherent requirements of the position if he or she had “services or facilities” which employees without a disability did not require. The words “services or facilities” are broad. If an employer alone, or in consultation with the job applicant or relevant experts, is able to identify any “services or facilities” which would enable the applicant to perform the inherent requirements of the position if the employer provided them, the employer must determine whether it would cause him/her unjustifiable hardship to provide those “services or facilities”.
83 “Unjustifiable hardship” is defined in s 49C of the Act, which has been re-produced at [28] above. When determining whether the provision of “services or facilities” by an employer, in the circumstances described in the previous paragraph, would constitute “unjustifiable hardship”, the employer in the first instance, and the Tribunal when conducting an inquiry, is directed to take into account “all relevant circumstances” of the case, and three matters in particular. Those matters are (1) the nature of the benefit likely to accrue to any persons concerned and the nature of the detriment likely to be suffered by any persons concerned if the employer provides those “services or facilities”, (2) the effect which the job applicant’s disability has on that person and (3) the financial circumstances of and the likely cost to the employer if those “services or facilities” are provided.
84 In X v Commonwealth (1999) 200 CLR 177 at 208-209, Gummow and Hayne JJ explained the operation of the equivalent provision to s 49D(4)(b) in the Commonwealth Disability Discrimination Act 1992:
85 If an employer wishes to rely upon the inherent requirements defence the employer must direct his/her mind to this second limb of the inherent requirements defence at the time a job application from a person with a disability is rejected. There is no evidence that this was done in this case. The respondent did not lead any evidence which suggested that any consideration had been given to whether Mr Zraika could perform the inherent requirements of the position with “services or facilities” which were not provided to police officers without his disability. It may be the case that there were no “services or facilities” which could have been provided but that does not relieve the respondent from his obligation to prove that this matter had been considered before Mr Zraika’s application was rejected.
To give but one example, if a person confined to a wheelchair could readily act as a counter clerk if a ramp were installed at one place in the office in which he or she was to be employed, it may well be open to conclude that the person could carry out the inherent requirements of the particular employment if that facility were provided. The question then would be whether provision of the ramp would impose an unjustifiable hardship on the employer.
86 We believe that the respondent misunderstood the manner in which s 49D(4)(b) of the Act operates. In her written submissions Ms Nomchong did not address the issue of whether there were any “services or facilities” which the respondent could have provided to Mr Zraika, but she did submit that there were various reasons why it would impose unjustifiable hardship on the respondent if he were required to admit Mr Zraika to the Police College in Goulburn. This issue is of no relevance to s 49D(4)(b) of the Act. Whilst it may have some bearing upon any discretionary remedy which may be ordered, whether something imposes an unjustifiable hardship on the respondent is of relevance to the ‘inherent requirements’ defence only in so far as it qualifies or restricts any “services or facilities” which the respondent may be able to provide to Mr Zraika in order to permit him to perform the inherent requirements of the position. Admitting Mr Zraika to the Police College is not a “service” or “facility” which would permit him to perform the inherent requirements of a police officer. Obtaining a Diploma of Policing Practice is an educational pre-requisite to becoming a police officer.
87 For the reasons given we are not satisfied that the respondent has discharged his burden of proving that the exception to liability contained in s 49D(4) of the Act has been made out in this case. Consequently, as a result of the admissions made by the respondent, we are satisfied that he unlawfully discriminated against Mr Zraika on the ground of his disability, in contravention of s 49D(1)(b) of the Act, when he rejected Mr Zraika’s application for employment as a police officer on or about 11 October 2002.
Remedies
88 In his Points of Claim Mr Zraika sought an award of damages and an injunctive style order. He made no claim for loss of wages, or other economic loss. Mr Zraika sought to be compensated for “his feelings of insult and humiliation” and for “the delay in commencing his career in the NSW Police Service”.
89 Section 113(1)(b) of the Act states that the Tribunal “may…find the complaint substantiated” and make various orders for relief which include, in sub-paragraph (i), an order that “the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct”. There is clear authority for the proposition that the Tribunal may award damages for non-economic loss in order to compensate the applicant for damage, such as distress, insult and humiliation, which he suffered by reason of the respondent’s conduct (Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47; Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217). As loss of opportunity and delay may be characterised as “loss or damage”, these are also matters for which a successful applicant may be compensated.
90 We found Mr Zraika to be an impressive and truthful witness. We accept his evidence that he felt “shocked”, “devastated” and “cheated” when he received his rejection letter from the NSW Police Service and that he “found it frustrating to be told that I couldn’t do something, without being given a chance to prove myself”. We also accept his evidence that he has a genuine desire to become a police officer and sees this career as an opportunity to make a contribution to the community. It is self-evident that his wish to join the NSW Police Service has been delayed. In the circumstances of this case, and bearing in mind the many judicial comments concerning a balanced approach to assessing damages of this nature in discrimination cases, we believe that an award of damages of $10,000 for non-economic loss is appropriate.
91 Mr Zraika has also sought an order that “the Respondent process the Applicant’s Professional Suitability Application without reference to the NSW Police medical standard in the area of visual acuity”. The Tribunal’s power to make such orders is found in s 113(1)(b)(ii) and (iii) of the Act which relevantly provide that the Tribunal may “make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act” and may “order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant”. These are statutory powers to make orders in the nature of an injunction.
92 In Holdaway v Qantas Airways Limited (1992) EOC 92-430 the former Equal Opportunity Tribunal held that an award of damages to a successful complainant does not preclude an order being made pursuant to s 113(1)(b)(iii). In AlldersInternational Pty Ltd v Anstee (1986) 5 NSWLR 47 at 69-70, Lee J held that s 113(1)(b)(iii) was of sufficient breadth to support an order that an employer reinstate a dismissed employee. We are satisfied that the Tribunal has the power to make the order sought by Mr Zraika. In this case the powers granted by sub-paragraphs (ii) and (iii) of s 113(1)(b) overlap. An order that the respondent re-consider Mr Zraika’s application falls within sub-paragraph (iii) because by being directed to do so the respondent is required to perform a reasonable act to redress the loss which Mr Zraika sustained by not having his application lawfully considered in October 2002. An order that the respondent re-consider Mr Zraika’s application without reference to the visual acuity standard at issue in this case falls with both sub-paragraphs (ii) and (iii) for it is a direction not to repeat conduct that has been found to be unlawful and it may also be cast as a reasonable act or course of conduct to redress Mr Zraika’s loss.
93 The proposed order seeks to direct the respondent to re-consider Mr Zraika’s application to become a police officer and to restrict the manner in which that application is assessed. It does not require the respondent to employ the applicant as a police officer. It does not require the respondent to admit the applicant to the Police College in Goulburn. It merely requires the respondent to assess Mr Zraika’s application without reference to the visual acuity standard which was at issue in this case. It does not preclude the respondent from devising a new and lawful visual acuity standard, or from employing other mechanisms for determining whether an applicant has a standard of vision which is necessary to perform the duties of a police officer. Before doing so the respondent will have to appropriately identify the inherent requirements of the position of a police officer and, if he chooses to adopt a new visual acuity standard or other mechanisms for assessing vision, it will be necessary to ensure that that standard, or those mechanisms, comply with s 49D(4) of the Act.
94 Orders of this nature are discretionary. In determining whether to exercise its discretion to make the order sought by Mr Zraika the Tribunal should be guided by those matters which a court may take into account when determining whether to grant equitable relief. The clarity of the proposed order, the capacity of the respondent to comply with the order and the undesirability of on-going supervision by the Tribunal are discretionary considerations of relevance in this case. After taking into account those considerations we are satisfied that we should make the order sought by the applicant. Whilst Order No 2 does not contain precisely the same language as that employed by the applicant in his Points of Claim, it is clearly within the ambit of the order which has been sought. We have made minor variations to the wording proposed by the applicant in order to enhance the clarity of the order and thereby render it easier for the respondent to comprehend what must be done in order to comply with that order.
95 Whilst, generally speaking, it is undesirable that the Tribunal should be engaged in on-going supervision of its orders we believe it appropriate to make an additional order which will permit either party to return to the Tribunal for further orders which may be needed to permit compliance with the order we propose to make pursuant to s 113(1)(b)(ii) and (iii) of the Act. This litigation has been complex and, no doubt, expensive. It should assist both parties if they can return to the Tribunal for clarification of what is required of them rather than be forced to litigate elsewhere any disputes about what Order No 2 requires and whether it has been complied with.
Costs
96 Mr Zraika sought leave to make an application for costs in the event that he was successful. The respondent opposed any order for costs against him. We can identify no reason why Mr Zraika should not be permitted to pursue an application for costs. As it was common ground between the parties that Mr Zraika had received pro bono legal assistance from Mr Hillard’s firm, Clayton Utz, it will assist the Tribunal if the parties refer to any authorities or general considerations concerning costs orders in cases where the successful party has received pro bono legal assistance.
97 In the event that the applicant wishes to pursue his application for costs he must file and serve written submissions in support of that application within 42 days. The respondent must then file and serve written submissions in response within 14 days of receiving the applicant’s submissions. The parties should have an opportunity to make oral, as well as written, submissions in relation to costs. If an application for costs is pursued the Registrar will determine an appropriate date for oral submissions, if either party wishes to make oral submissions, once the written submissions have been filed.
Decision and orders
98 The decision of the Tribunal is that the applicant’s complaint is substantiated. The Tribunal makes the following orders:
1. Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $10,000 by way of damages.
2. Within 42 days of the date of this order the respondent must take all necessary steps to determine the applicant’s application to join the NSW Police Service without reference to the existing standard for visual acuity.
3. Within 42 days of the date of this order the applicant is to file and serve written submissions in support of any application he proposes to make for costs.
4. Within 14 days of receiving the applicant’s written submissions in relation to costs the respondent is to file and serve written submissions in response.
5. Any application by the applicant for an order for costs is to be set down for hearing on a date to be determined by the Registrar.
6. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders.
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