Jameson v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-04-20

reasons for decision

Mr Jameson's claim before the Tribunal is that the Commissioner of Police (Commissioner or Respondent) failed to place him in the position of Officer in Charge (OIC) located at Nambucca Heads Police Station (OIC role) on or about 17 August 2020 on the basis of his disability which was indirect and direct discrimination in employment.
On 5 January 2021, Mr Jameson made a complaint of disability discrimination with the President of the Anti-Discrimination Board (ADB) alleging that he had been discriminated against by the Commissioner of Police in employment on the grounds of disability. On 30 July 2021, the President's delegate decided to refer the complaint to the Tribunal pursuant to section 93C(b) of the Anti-Discrimination Act 1977 (the Act).
The President's report to the Tribunal stated that: 1. the period of the complaint was 11 September 2020 to 5 January 2021 (Complaint Period); 2. There was one complaint of discrimination on the ground of disability in employment within the meaning of ss 49A, 49B and 49D of the Act; 3. The respondent denied the complaint and relied on ss 54 and 49D(4) of the Act.

Discrimination

Mr Jameson alleges in the complaint to ABD that the Commissioner of Police contravened ss49D(2)(a), (b) and (d) of the Act, which states: 49D(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. … (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 first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
Disability includes past, future and presumed disability. Section 49A of the Act states: 49A 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).
The form of discrimination alleged by Mr Jameson includes direct and indirect discrimination. Mr Jameson submitted that in the alternative that he was discriminated against on the ground of a characteristic that appertains generally or is generally imputed to persons who have the applicant's disability. Section 49B of the Act states: (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. … (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.
Section 4A of the Act explains that if an act is done for two or more reasons and one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act, then for the purposes of the Act, the act is taken to be done for that reason.

Evidence

Mr Jameson relied on his own evidence. The Commissioner of Police relied on evidence from Mr Cribb who holds the position of Superintendent and Ms Jones who is a Human Resources Manager. Also before the Tribunal were documents produced pursuant to a subpoena on the Commissioner of Police at the instigation of Mr Jameson.

Factual background

Darren Jameson is a non-executive officer and member of the NSW Police Force. From the 21 August 2021 he has held the rank of District Inspector within the Mid-North Coast Police District and performed duties in the OIC role.
Mr Jameson has been an officer of the NSW Police Force for over 30 years. In about April 2018 Mr Jamison sustained a workplace psychological injury. There was no dispute between the parties that the psychological injury was a disability within the meaning of s4 of the ADA.
Mr Jameson submitted written notification of the psychological injury (depression and anxiety) arising out of inter-personal conflict occurring at his workplace, at Coffs Harbour Police Station to the Commissioner of Police in about February 2019. Liability for the workers compensation claim was accepted by the Respondent.
In March 2020, Mr Jameson was assessed as having a major depressive disorder with secondary panic phenomena in partial remission caused by difficulties and stressors arising out of inter-personal conflict occurring at his workplace, at Coffs Harbour Police Station.
On 30 April 2019, Mr Jameson was placed on restricted duties due to his medical condition. On 18 June 2019 Mr Jameson was certified as unfit to perform duties with the Respondent but was fit to perform duties at a university and did so from 31 July 2019 to 10 May 2020.
On 28 April 2020, Mr Jameson was declared fit to participate in a graduated return to work plan to a different workplace with the Respondent. On 11 May 2020, Mr Jameson commenced working at the Nambucca Heads Police Station performing non-operational duties on a part time basis. The stated goal of the return to work plan was a graduated full time return to his pre-injury duties as a Crime Manager in a suitable location.
On 24 July 2020 Mr Jameson was certified fit to perform pre-injury duties but not in the Coffs-Clarence Police District and commenced to perform non-operational duties at the Kempsey Police Station. The prognosis was that Mr Jameson's condition would fully remit with further time and treatment.
On 17 August 2020, Mr Jameson was offered the OIC role (the position he has performed since 21 August 2021). The offer was conditional on the Police Medical Officer's (PMO, also referred to in evidence as CMO) opinion as to fitness for those duties. The PMO was employed by the Respondent.
On 20 August 2020, Mr Jameson was assessed by the respondent's psychologist and the PMO. The PMO submitted a preliminary report on 25 August 2020 that did not support Mr Jameson's appointment to the OIC role because of its proximity to the Coffs-Clarence Police District and the risk to Mr Jameson's health as a consequence of having to work and liaise with officers of that District.
On 26 and 28 August 2020, Mr Jameson's treating doctor and treating psychiatrist respectfully submitted reports to the PMO stating that Mr Jameson had made a full recovery, had no anxiety or panic symptoms and in their opinion was fit to take up duties at Nambucca Heads Police Station.
On 28 August 2020, the Commissioner of Police implemented a new return to work plan that pending a final decision from the PMO, Mr Jameson was not to perform non-operational duties at Nambucca Heads Police Station but to perform non-operational duties at Port Macquarie Police Station.
On 11 September 2020, the PMO made a final report, recommending against the appointment of Mr Jameson to the OIC role. The PMO report concluded that Mr Jameson's psychological disorder was subject to relapse and was a recurrent illness and that Mr Jameson was unable to receive the support required at a small, rural station such as Nambucca Heads.
The PMO recommended a gradual return to operational duties, including a three to six months placement in the same location as a Superintendent, so that he could be supervised and supported. The PMO opined that if the return to work was successful, Mr Jameson could be permanently transferred into a role within the Mid-North Coast Police District.
On 30 November 2020, Mr Jameson was informed that the Respondent proposed to transfer him into the position of District Inspector at Mid North Coast Police District pursuant to s69 of the Police Act 1990 (NSW) with conditions set out in a proposed return to work plan (RTWP). Following discussions between the Commissioner, Mr Jameson and the Police Association, some amendments were made to the RTWP.
The RTWP set out a gradual return to pre-injury duties within a six month period with the PMO and the GP to confirm completion of the transition back into operational duties at the six months mark.
On 7 January 2021, Mr Jameson commenced to perform work pursuant to a RTWP at Port Macquarie Police Station under the supervision of Superintendent Cribb. In March 2021, Mr Jameson completed training to carry firearms and other mandatory training. On 25 March 2021, Mr Jameson commenced to perform operational duties at Kempsey Police Station.
From 10 January 2021, Mr Jameson held the substantive position of District Inspector within the Mid-North Coast PD and on 21 August 2021 commenced to perform duties as OIC at Nambucca Heads Police Station.

Medical Evidence

Mr Jameson relies on the reports from his treating doctor, Dr McAfee (NTD) and his treating psychiatrist, Dr Doris (IME) and the Respondent's psychologist Mr George to demonstrate that as of 20 August 2020, he was fit for full operational pre-injury duties at Nambucca Heads Police Station and should have been assessed as being able to satisfy the inherent requirements of the OIC role.
On 20 August 2020, Mr Jameson attended a short phone consultation with Dr Kirby, the CMO. On 25 August 2020, Mr Jameson received an email from Dr Kirby. In the email Dr Kirby refers to the reports from Mr George, Dr McAfee and Dr Doris. He says: It is my opinion that the NTD and the IME restrictions do not factor in the high rank of the officer and the necessity of that rank to be required to interact seamlessly with neighbouring PACs, districts and within the region generally in managerial, relieving, operational and higher duty roles. Such interaction will not infrequently be at short notice and/or in emergency /critical situations. It is more likely to happen within the nearer geographical region. Considering the restriction of not working at Coffs Harbour, it is my opinion that this officer at the rank of inspector: is not fit to work unrestricted is not fit to work with current restrictions in the mid North Coast district may be fit to work with current restriction in another district South of the Mid North Coast District.
Dr McAfee and Dr Doris both wrote to Dr Kirby following his initial advice. Dr Doris says: …He entered partial remission in the early months of this year and has now been in full remission for the last few months. …I understand the concern that Darren may suffer a recurrence of major depressive disorder as that is the nature of this type of illness. My understanding of the role Darren has at Nambucca does not appear to me to be one which is likely to place him at a significantly increased risk of recurrence compared to any other similar role, other than if he were back based in Coffs Harbour where he became unwell.
On 11 September 2020, Dr Kirby provided 'final advice' in which he repeated his opinion set out above. He also stated that Mr Jameson had present symptoms of depression/anxiety. He quoted Dr Doris as being of the opinion that the current diagnosis is 'major depression'.
Under the heading 'Comment', Dr Kirby states that there is a persistent thread of symptoms and that: The natural history of this disorder is that of a relapsing and recurring illness with hereditary factors in some cases and maybe genetic biochemical influences needing long-term medication.
On 11 September 2020 Dr Kirby in his final advice states: The final placement will need to consider the risk of recurrence of his illness over the long term. Considering the less than predictable nature of. NSW PD transfers promotion staffing in response to business needs such as an illness, emergencies (such as terrorism, Covid, Schoolies bushfires, for example, and the need for senior supervision in these exigencies), I recommend the permanent placement be a transfer out of the Northern Region.
On 6 November 2020, Dr Kirby was of the opinion that a return to work at Taree PS is 'potentially secure' as it 'represents the lowest risk to the officer's health, generates the minimal non-working related stress and minimises the long term disruption to lifestyle…
On 8 December 2020, Dr Kirby wrote an email to Ms Jones with the subject 'Letter of Offer': The major point brought up that I needed to clarify was related to the earlier diagnosis. I find that PTSD was noted in my records in response to reply by the officer as to his earlier symptoms of anxiety and depression. In particular, his belief that his myocardial infraction was perhaps work related. It is the only time it is recorded, although I do not have access to any actual workers compensation, certification, rehabilitation files or insurer material. As the repeated statements in the medical file made by the officer used the terms stress, anxiety, depression as back as 2001 and depression, major depression and anxiety appear in doctors' letters and IME reports, I would not be averse to accepting that the PTSD diagnosis be discounted and replaced by anxiety, major depression. In terms of my opinion, I would consider a 20 year history of recurrent anxiety and major depression to be an equal if not stronger case for this officer to be placed where he is supported by appears and senior management. I continue to understand that this officer has not worked the full duties of an officer of the rank of Inspector since mid 2018. I consider that the recent time at Port Macquarie needs to be significantly discounted in terms of time under support and supervision because of the lack of frontline activity. The comments in the reply concerning 'future role certainty' are from a medical risk point of view problematic. This is because the lack of proven full frontline activities and the long term nature of his condition would likely restrict his capacity to work either in the Coffs/Clarence district or in charge of a single inspector ruling posting. I remain of the opinion that on the information presently available that he would be medically, psychologically at risk in such situations for the foreseeable future. (emphasis added)
The documents referred to in paragraphs 33 and 34 above were produced by the Commissioner pursuant to a subpoena. No file notes made by Dr Kirby were produced. Mr Jameson referred the Tribunal to cl6 of the Health Practitioner Regulation 2016 which is in the following terms: 1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 4, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation.
As Dr Kirby makes reference to making records of words said by Mr Jameson on numerous occasions in the 8 December 2020 email above, the Tribunal is prepared to make an inference that Dr Kirby made records of the conversation he had with Mr Jameson. However there is no evidence and no inference is made that the Commissioner had Dr Kirby's file notes and failed to produce them in response to a subpoena.

What Mr Jameson must establish

The onus of proving discrimination pursuant to s49B and s49D of the Act lies on the applicant.
It was not in dispute that the Commissioner of Police is the employer within the meaning of that term in s49D of the Act.
It is not in dispute that Mr Jameson had a disability of 'major depression' within the meaning of the term in s49A of the Act. There was some dispute as to whether at the time of the alleged discriminatory act, the disability was in the past or imputed. Mr Jameson's treating psychiatrist's opinion as of 28 August 2020 was that he was in 'full remission from a major depressive episode' and 'had been for the last few months'.
During the hearing Mr Jameson submitted that as at the alleged date of the discriminatory conduct, he did not have a disability but a disability was 'imputed' by Dr Kirby within the meaning of s49A(b) or (c) of the Act, although Mr Jameson did not refer to these subsections, his clear written and oral submissions were that Dr Kirby was of the opinion that he had in the past or had continued to have PTSD and or major depression.
What is also disputed and what Mr Jameson must prove is that the Commissioner of Police discriminated against him in the terms and conditions of employment afforded him (s49D(2)(a), by denying him or limiting his access to opportunities for promotion, transfer or training or to any other benefits associated with employment (s49D(2)(b), or by subjecting him to any other detriment (s49D(2)(d)).
In order to establish direct discrimination falling within section 49D of the Act in the present case, it must be established that the Commissioner of Police treated Mr Jamison less favourably than in the same circumstances or in circumstances which are not materially different, the Commissioner of Police treated or would have treated a person who did not have Mr Jamison's disability; (the differential treatment issue) and that differential treatment was on the ground of his disability; (the causation issue).
Where the comparator is hypothetical, the two questions as to 'less favourable treatment' and 'on the ground of disability' can be addressed as part of the same reasoning exercise. As explained by Mortimer J in Watts v Australian Post [2014] FCA 370; (2014) 222 FCR 220, 'less favourable treatment' and because of disability' are not two separate elements: ... the function of a comparator in the context of discrimination is to facilitate the isolation of the reason why the person was treated as he or she was: Purvis at [223] per Gummow, Hayne and Heydon JJ. By removing the nominated attribute but otherwise comparing how the aggrieved person was treated in comparison with another person in the same or similar circumstances, it is thought that the "real reason" for the person's treatment more readily emerges. In the context of s 5(2)(b), it can be said that the "real effect" more readily emerges. This explanation in Purvis, combined with the particular language in s 5(2)(b), serves to highlight the overlap between "less favourable treatment "and "because of the disability" in s 5(2)(b).
Mr Jameson made no submissions as to a hypothetical comparator. The Commissioner of Police correctly submits that to undertake a valid comparison for the purposes of establishing direct discrimination, it is necessary to construct a hypothetical comparator to determine whether there has been less favourable treatment of the applicant, compared to a person without his disability, in the same circumstances or in circumstances that are not materially different relative to person without the applicants' disability. In constructing a hypothetical comparator, the particular facts of the case, including the "objective features that surround the actual or intended treatment" must be taken into account: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [222]-[225] per Gummow, Hayne and Heydon JJ.
A comparison must be made to consider how, in those circumstances, the Respondent would have treated a person without the disability, noting that in Purvis, the High Court was considering s5(1) of the Disability Discrimination Act 1992 (Cth) (DD Act) which at that time did not have a general characteristic extension for disability as exists in s49B(2) of the Act. The DD Act was amended with effect from 5 August 2009 to include a partial characteristics extension in s4 'behaviour that is a symptom or manifestation of the disability.'
In Purvis, the High Court stated that the question is why the aggrieved person was treated as they were: Gummow, Hayne and Heydon JJ at [223]. The focus is on the 'true basis' or 'genuine basis': Gleeson J at [102], or the 'real reason' for the treatment: McHugh and Kirby JJ at [144].

Indirect Discrimination

The Commissioner submitted that the Tribunal should not consider Mr Jameson's allegation of indirect discrimination as it was 'expanded'. The President's Report did not limit the complaint to s49B(1)(a) of the Act and Mr Jameson alleged in his first document to the Tribunal which was a mixture of pleading, evidence and submission that that he was required to comply with the 'requirements and conditions in RAW (RTWP) plans, restrictions, transfers and other actions which contravened and directly worked against the available medical evidence'.
The Commissioner in their submissions understood the claim to involve 'indirect discrimination' and made specific submissions in regard to the 'indirect discrimination' claim.
Mr Jameson's claim of indirect discrimination is properly before the Tribunal.
The elements of indirect discrimination include: 1. The imposition of a requirement or condition; 2. Disperate impact of the requirement or condition, that is, a substantially higher proportion of persons who do not have that disability, comply or are able to comply with the requirements or condition; 3. The requirement or condition is not reasonable; 4. Inability of the complainant to comply.
The meaning of indirect discrimination was explained in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at Dawson and Toohey JJ at 392 [21]: Indirect discrimination occurs where one person appears to be treated just as another years or would be treated, but the impact of such equal treatment is that the former is in fact treated less favourably than the latter. Both direct and indirect discrimination, therefore, until one person being treated less favourably than another person. The major difference is that in the case of direct discrimination, the treatment is on the face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral, but the impact of the treatment on one person when compared with another is less favourable.
For something to be a requirement or condition in relation to a matter, it must be separate from that matter.
Mason CJ and Gaudron J at 375, [15]: "... some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind."
The requirement might be inferred or implicit. It does not have to be express; Waters at at 360, [23] per Mason CJ and Gaudron J.
Dawson J at 185, [10] in Australian Iron & Steel v Banovic and Others [1989] HCA 56; (1989) 168 CLR 165 said:
Upon principle and having regard to the objects of the Act, it is clear that the words "requirement or condition" should be construed broadly as to cover any form of qualification or prerequisite demanded by an employer of his employees: Nevertheless, it is necessary in each particular instance to formulate the actual requirement or condition with some precision.
The requirement or condition must be neutral on its face and must be one with which the entire group to which it was directed must comply; Banovic at 185 - 191, [10]-[11]. See also McHugh J in Banovic at [195] - [198]; Abela v State of Victoria [2013] FCA 832 at [83] per Tracey J; Winters v Fogarty [2017] FCA 51 at [75] Bromberg J.
In State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 Gummow, Hayne and Crennan JJ said at [63]: ... some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind.

Consideration

Mr Jameson's complaint is that the decision to not appoint or offer him the OIC role in August 2020 constituted discrimination on the ground of disability as it was made pursuant to the report from the PMO who incorrectly assessed him from suffering PTSD, continuing to suffer major depression and assessed that because of the nature of Mr Jameson's psychiatric disorder, he was subject to relapse and the illness to reoccur and therefore unable to satisfy the inherent requirements of the role.
Mr Jameson submits that the Commissioner failed to act in any way to prevent the discriminatory actions by Dr Kirby and as a result facilitated the discriminatory acts and failed to act to stop or rectify the discrimination.
Mr Jameson relies on the report from his treating psychiatrist and treating doctor that as of 20 August 2020, he was not suffering from PTSD or from any mental health illness.
Mr Jameson submits that the PMO concluded that he was unfit to carry out the inherent requirements of the role because of his disability, whether it was imputed or not (he was never diagnosed with PTSD or any thought disorder) or a characteristic of the disability. However, it was not explained in any way what that characteristic might be.
The Commissioner submits that Mr Jameson did have a diagnosis of major depression disorder in August 2020 which was a disability for the purposes of the Act.
The Commissioner submits that on 25 August 2020, PMO concluded that Mr Jamison could not perform the inherent requirements of the position of OIC because of the proximity of Nambucca Heads Police Station to the Coffs Clarence Police District which would lead to having to work closely with senior officer at Coffs Harbour Police Station.
The Commissioner submits that the hypothetical comparator is a person being considered for the OIC role, who does not have a 'mental health condition or psychological distress' who:
was unable to work or interact with officers in the Coffs Clarence Police District or if they were to be so, it would cause an increased risk to their health and safety.
had limited experience in several facets of the role.
had been absent from the workplace for a period of 11 months and had been performing nonoperational duties under supervision for a period of 20 months and
had been assessed as being currently unable to perform the inherent requirements of the position.
The identification of the comparator is predicated on asserted facts, contrary to the evidence before the Tribunal. First, Mr Jameson was not 'considered' for the OIC role but was offered the role on 17 August 2020 conditional of being found to be able to meet the inherent requirements of the role by the PMO. Affidavit of Cribb at [32]. As such, the evidence from Mr Cribb and Ms Jones about opinions they held in regard to Mr Jameson' experience cannot be relevant in determining whether discrimination had occurred because the only reason given for not appointing Mr Jameson to the IOC role was because the PMO found that he could not satisfy the inherent requirements of the role.
While Mr Jameson asserts that as of 17 August 2020, he was no longer suffering from any mental health or psychological distress symptoms, it is not the case that he no longer had a disability. Dr Doris' opinion that he was in 'full remission and had been for a few months' suggests that he had no symptoms of the disability. Dr Doris recognised that Mr Jameson may suffer a recurrence of major depressive disorder, 'as that is the nature of this type of illness'.
The Tribunal finds that the appropriate comparator, taking into account the objective features that surround Mr Jameson's treatment is a person offered the OIC role conditional on him being able to satisfy the inherent requirements of the role, who does not have a 'mental health condition or psychological distress' who had been assessed as being currently unable to perform the inherent requirements of the position.
There is no evidence before the Tribunal that Mr Jameson was treated less favourably than a hypothetical comparator would have been treated by the Commissioner of Police. In fact, Mr Cribb at paragraph [41] of his affidavit and Ms Jones at [37] of her affidavit state that the Commissioner acted because of the PMO's preliminary report of 28 August 2021. The Tribunal accepts this evidence.
The Tribunal accepts Mr Jameson's evidence that he did not say to the PMO that he had PTSD contrary to the PMOs email of 8 December 2020, however this does not mean that he was discriminated against as explained above.
The Tribunal finds that the Commissioner did not treat Mr Jameson less favourably than the Commissioner would have treated a person who did not have Mr Jameson's disability in the same or similar circumstances.
As to the indirect discrimination claim, Mr Jameson did not allege any requirements and conditions within the meaning of s49 of the Act, which are of general application or which are 'facially neutral'. On the contrary, each of the requirements and conditions alleged deficiencies on the part of the Commissioner. He complained that the Commissioner acted in a particular way in response to his particular disability as found by the CMO.
The PMO's report could not have been on its face neutral in its application generally to all persons employed by the Commissioner as it was specific to Mr Jameson. As such the indirect discrimination complaint is misconceived.

Defences under s54 of the Act

If we are wrong in regard to direct and the indirect discrimination claim, we address the Commissioner's defences.
Section 54 of the Act states: (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of-- (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,
Section 104 of the Act states: 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 proceedings before the Tribunal relating to a complaint lies on the respondent.
In Waters, Mason CJ, Gaudron and Deane JJ at [54] held in relation to the phrase 'in order to comply with' in the Anti-Discrimination Act (Vic): It is one thing to provide that the Act should give way to an express direction contained in an actual provision of another Act or in a statutory instrument. It is a quite different thing to provide, in effect, that the Act shall give way to any subordinate direction, no matter how informal, to which a provision of any other Act requires obedience. In that regard, it would seem inevitable that, if the wide construction is given to the words "necessary ... in order to comply with a provision of ... any other Act".
McHugh J at [33]: …in order to fall within the exception in s.54, the Commissioner had to demonstrate that his conduct occurred pursuant to an actual requirement of an Act and that it was necessary for him to pursue such a course of conduct. The Tribunal held that the requirement of the "other Act" must be mandatory and specific.
In Lavery v Commissioner of Fire Brigades [2003] NSWADT 93 at [80], dealt with ss15(1) and 16(1) of the Occupational Health and Safety Act 1983 (NSW) (repealed). Sections 15A and 16A are in similar terms to s19(1) and (2) of the WHSA. At 86 - 87 the Tribunal observed: 86 Because of the general nature of the obligations cast upon employers by sections 15 and 16 of the Occupational Health and Safety Act 1983 there will usually be great difficulty in relying upon that provision in order to attract the "protective cloak" of s 54(1)(a). This point was acknowledged by Abadee J in David Jones (Australia) Pty Ltd v "P" (unreported, Supreme Court of NSW, 29 August 1997) and by Barr J in State Transit Authority v Sloey [1999] NSWSC 47 at paras 53-59. 87 The challenge in relying upon a broadly phrased statutory offence, such as s 15 of the Occupational Health and Safety Act 1983, in order to attract the s 54 "protective cloak" is well illustrated by considering a case, CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, from a vastly different area of law. In that case, which concerned an action in tort, members of the NSW Court of Appeal referred to the difficulties involved in determining whether circumstances raised hypothetically as a defence to that action would have constituted a criminal offence if actually committed. In CES the plaintiff sued the defendant, a medical clinic, in negligence for failing to diagnose her pregnancy. Part of the plaintiff's claim was that she would have terminated the pregnancy had it been diagnosed at the appropriate time. The trial judge, in dismissing the suit, upheld the claim by the defendant that it would have been unlawful for the defendant to have had an abortion. On appeal, both Kirby P and Priestley JA referred to the virtual impossibility of determining in that civil suit whether an act which had not been committed, the abortion, would have constituted an offence of unlawful abortion under ss 82 or 83 of the Crimes Act 1900 if it had been committed. Similar difficulties arise when seeking to determine whether an act that was not committed by the respondent - providing the applicant with the training and promotional opportunities afforded to operational Level 3 Firefighters - would have amounted to an offence under s 15 or s 16 of the Occupational Health and Safety Act 1983. Ultimately, the respondent must convince the Tribunal that his relevant conduct in relation to the applicant was mandated by those provisions if he is to avail himself of the s 54 exception to liability.
The Commissioner refers to the 'deselection' decision, which we understand to mean the decision to not appoint Mr Jameson to the OIC role because of the PMO's report in August 2020 and submits that s19 of the Work Health and Safety Act 2011 (NSW) is mandatory, in that the Commissioner must ensure so far as reasonably practicable the health and safety of workers (s19), and that anything arising from a workplace is without risk to their safety (s 20), and to exercise due diligence to ensure the Commissioner is complying with its duties (s27).
In order to fall within the exception in s.54 of the Act the Respondent has to demonstrate that her conduct occurred pursuant to an actual requirement of an Act and that it was necessary for her to pursue such a course of conduct and that the requirement of the 'other Act' must be mandatory and specific.
There is no evidence before the Tribunal that it was mandatory or necessary for the Commissioner to comply with the PMO's opinion. In fact, as the Commissioner states in her submissions at [40], ultimately the Commissioner decided to act contrary to PMO's opinion and appointed Mr Jameson to the OIC role.
There was also evidence before the Tribunal that Mr Jameson was seeking a review or an appeal against the PMO's opinion which implies that there is an internal process that could lead to a different outcome and that the Commissioner has some discretion in adopting or relying on the PMOs opinion.
The Commissioner also relies on is s66 of the Police Act 1990 (NSW) which is in the following terms: (1) This section applies to appointments to vacant positions of non-executive police officers (other than constables) and vacant specialist positions. (2) In deciding to appoint a person (other than by way of promotion) to a vacant position of a non-executive police officer or a vacant specialist position, the Commissioner must, from among the applicants who are eligible for appointment, select the applicant who has, in the opinion of the Commissioner, the greatest merit. (3) The Commissioner is, for the purpose of determining the merit of persons for appointment (other than by way of promotion) to a vacant position of a non-executive police officer or a vacant specialist position, to have regard to-- (a) the nature of the duties of the position, and (b) the qualifications, experience, standard of work performance and capabilities of those persons that are relevant to the performance of those duties.
The Commissioner submits that it must appoint persons to positions on the 'greatest merit' having regard to the nature of the duties of the position, qualifications, experience and capabilities. Secondly the Commissioner submits that it was necessary for her to require Mr Jameson to perform alternative duties on a return to work plan prior to placing him in the OIC role.
This submission is predicated on the Tribunal finding that it was mandatory and necessary for the Commissioner to comply with the PMO's opinion that Mr Jameson was unable to satisfy the inherent requirements of the OIC role. However there is no evidence before the Tribunal to such effect. On the contrary, the Commissioner decided to appoint Mr Jameson to the OIC role on 27 November 2020 'contrary to the advice of the PMO': Commissioner's submissions [40]-[41].
The Tribunal finds that the defences under s54 of the Act have not been made out by the Commissioner.
The Tribunal makes the following order: 1. The application is dismissed. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2022

Health Practitioner Regulation 2016(NSW)

Occupational Health and Safety Act 1983(NSW)

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