Lipman v Commissioner of Police

J LUCY, Senior Member:

1. The applicant is a Leading Senior Constable in the New South Wales Police Force and the mother of three young children. In 2013, she applied for promotion to the rank of sergeant. Promotional positions in the New South Wales Police Force were, in 2013, advertised on a full-time basis as a matter of policy.
2. On two occasions in 2013, the applicant was offered a promotion to the rank of sergeant at a particular Local Area Command, but on both occasions she was unable to negotiate a part-time work agreement with the Local Area Commander that allowed her to meet her carer's responsibilities. On the second occasion, the Commander responsible for determining whether to offer her a part-time work arrangement and, if so, on what terms, was aware that she had complained to the Anti-Discrimination Board ("ADB") about her treatment on the first occasion.
3. The issues in these proceedings are whether the Commissioner of Police ("Commissioner") directly or indirectly discriminated against the applicant on the grounds of her carer's responsibilities and whether the applicant was victimised as a result of having made a complaint of discrimination to the ADB.

PROMOTIONS SYSTEM

1. It is convenient to set out at the outset the system operating at the relevant times in the NSW Police Force for promotion from the rank of constable to the rank of sergeant. The Police Act 1990 (NSW) and the Police Regulation 2008 (NSW) make provision for the promotion of officers including to the rank of sergeant. The New South Wales Police Force also has policies governing the promotion of police officers.
2. The Commissioner is to establish promotion lists of police officers eligible for promotion to the rank of sergeant (Police Act, s 70(1)). In deciding to appoint a person by way of promotion to a vacant position of a non-executive police officer (including that of a sergeant), the Commissioner must appoint a person from the promotion list for the rank concerned who is available for appointment and who has the greatest merit according to rankings on the list (Police Act, s 66(4)).
3. A person is not eligible to be appointed to a position of the rank of sergeant unless, relevantly, the person is on a sergeants promotion list that is in force when the appointment is made (Police Regulation, cl 19(1)). Eligibility criteria for a person to be placed on a promotion list (including the sergeants promotion list) include having obtained a satisfactory mark in the pre-qualifying assessment for that rank and having completed the promotion examination, and the management performance review, for that rank, within the last three years (Police Regulation, cl 25(2)).
4. Persons placed on a promotion list are to be ranked on that list in order according to the eligibility mark of each person (Police Regulation, cl 27(1)).
5. A person on a promotion list who is offered an appointment to the rank of sergeant is taken to have refused the offer if he or she fails to accept the appointment within 72 hours of the offer being made, or within such longer period as the Commissioner may allow in a particular case (Police Regulation, cl 28).
6. A sergeants promotion list remains current for the period of 12 months after it is established or until all persons on the list have been removed from the list, whichever occurs first (Police Regulation, cl 30(1)).
7. The promotion process is also governed by a policy the first page of which is headed "Overview of the Police Promotion Process" and which states that it was updated in March 2013. This document is known as the "Business Rules." It provides in cl 1 as follows: "All vacancies for all ranks advertised to the Promotion Lists are full-time positions unless otherwise indicated. Positions occupied by a part-time officer cannot be offered for promotion to fill the residual hours."
8. It also provides in cl 7, that "[a]ll vacancies advertised to the Promotion List (all ranks) are full-time positions."
9. The Business Rules provide that, once an officer is identified as the person who has the greatest merit according to the rankings on a promotion list, the person is contacted to be given a condition offer of promotion (cl 7). The offer is conditional upon integrity and medical clearances being obtained (see also Police Act, s 71).
10. The Tribunal heard evidence that, in order to fill promotional vacancies to the rank of Sergeant, the Commissioner internally publishes a list of vacant promotional positions for the rank of Sergeant each month ("the Sergeant Vacancy List"). A copy of the Sergeant Vacancy List is sent to officers on the current promotions list. Officers on the current Sergeant Promotions List then have two weeks to apply for a vacancy on the list.
11. Only candidates on the relevant promotions list are entitled to apply for an advertised position. They can nominate for as many advertised positions as they wish, but a vacancy is only offered once per round to each officer. Candidates nominate their order of preference for each position.
12. Each of the monthly Sergeant Vacancy Lists published over 2012 and 2013 included the following statement: "Unless otherwise stated, all vacancies are full time positions and appointment is on a full time basis".
13. An officer may be able to negotiate a part time work agreement with a Commander upon promotion, but the officer must first secure the promotion.

RELEVANT AWARDS AND POLICIES

1. The Crown Employees (Police Officers) State Award 2009 ("2009 Award"), which applied to the applicant at all relevant times, provided, in cl 14.1: "Officers may be employed on a part time basis for a period of less than 38 hours per week under guidelines agreed by the parties. While 10 hours per fortnight is generally regarded as a reasonable minimum, the Commissioner may approve a lesser minimum where it is necessary for the officer to work fewer hours per fortnight."
2. The NSW Police Force Carers' Responsibilities Guidelines set out some of the legal obligations placed upon an employer under the Anti-Discrimination Act 1977 (NSW) ("AD Act") in respect of a person with carer's responsibilities and also set out employees' responsibilities. In the Overview to those guidelines, it is stated: "The central feature of the carers' responsibilities discrimination law is that work arrangements need to be as flexible as possible. This means that NSW Police may need to provide extra or special arrangements to assist employees to meet their carers' responsibilities if it is reasonable in all the circumstances to do so."
3. The guidelines contemplate that employees can negotiate "extra or special work arrangements" with their Commander by completing a form and providing limited proof of their carers' responsibilities. They set out matters to which a Commander or manager should have regard when considering a request for extra or special workplace arrangements and provide for the review of a decision to refuse a request.
4. The Part Time Work for Police Officers Policy and Guidelines (published in 2005 and reviewed in March 2013) ("Part Time Work Policy") provide, in clause 4.1, that the availability of part time work is subject to NSW Police requirements. The policy contemplates the possibility of job sharing, and states in clause 7.1 that "Commanders and Managers are able to increase the occupancy of any single authorised position up to (but not including) the equivalent of two full time officers. That is, a percentage less than 200%." However, this may only occur "where the total occupancy of all authorised positions does not exceed 100% of the location's cost centre allocation" (cl 7.2).
5. The Part Time Work Policy also contemplates that an officer may work reduced hours without job sharing.

FACTUAL BACKGROUND

1. After taking maternity leave following the birth of her first child, the applicant returned to work in October 2009 on a part time work arrangement. The applicant gave birth to twins in 2010 and took maternity leave again, returning to work on a part time work arrangement in 2011.
2. On 18 September 2011, the applicant commenced working in a part-time work arrangement as a Senior Constable in a general duties position at the Harbourside Local Area Command ("LAC"). Under this arrangement, she was required to work 120 hours every six weeks in ten twelve-hour shifts. The normal full-time work load is 38 hours per week, or 228 hours over a six week roster block, which in general duties is typically worked as nineteen twelve-hour shifts.
3. The applicant's husband is also a member of the NSW Police Force and works full-time. During 2013, both the applicant and her husband were working at Harbourside LAC. They worked their rosters so as to ensure that there was always someone at home to look after the children.
4. During 2011, the applicant undertook the elements of the promotions process, with a view to being eligible for inclusion on the Sergeants Promotions List for 2012.
5. On 22 May 2012, the applicant was appointed to a position as a Leading Senior Constable in the NSW Police Force.
6. In September 2012, the applicant was included on the Sergeants Promotions List. After her inclusion on that list, she began nominating for positions on the monthly Sergeant Vacancy Lists.
7. On 27 March 2013, the applicant was advised that she was the highest ranking officer on the Sergeant Promotions List for the position of General Duties Supervisor (Local Area Command) at Rosehill LAC. This position is commonly referred to as that of Team Leader.
8. On 2 April 2013, the applicant signed the Position Acceptance Form. This included an acknowledgement that she was: "aware that upon accepting this position I will not be considered for identification to any other position at the same rank and maximum salary regardless of duty type, and I will be removed from the Promotions List for that rank. I understand that appointment to the position will be subject to relevant satisfactory clearances."
9. On 5 April 2013, the Human Resources Duty Officer ("HRDO") at the Harbourside LAC emailed the Rosehill HRDO, Inspector Tara Norton, informing her that the applicant was currently working on a part-time work agreement and attaching a copy of that agreement.
10. An HRDO occupies a senior position in a LAC. An HRDO is an inspector responsible for human resources and related matters including the negotiation of transfers and part-time work agreements and overseeing the rostering of shifts.
11. On 9 April 2013, the Appointments and Performance Review Unit in the NSW Police Force emailed the Commander at Rosehill, Superintendent Whyte, informing him that the applicant was currently on a part-time work agreement, working 20 hours a week, and suggesting that the Commander may wish to negotiate a part-time work agreement with the applicant.
12. Some time in early April 2013, the applicant telephoned Inspector Norton and they discussed the applicant coming to the Rosehill LAC to meet the Commander for the purposes of negotiating a part-time work agreement. There is conflicting evidence about what was said in that conversation. The applicant says that Inspector Norton told her that the command could consider twelve twelve-hour shifts per roster period, but Inspector Norton denies that she said this.
13. On 16 April 2013, the applicant met with Inspector Norton and Superintendent Whyte at the Rosehill LAC. They had a discussion about the applicant's carer responsibilities, the number of shifts the applicant was able to work, the needs of the Rosehill LAC and the number of shifts the Commander was prepared to offer her. The applicant proposed working ten twelve-hour shifts per roster period. There is conflict about what occurred at the meeting, but the evidence indicates that Superintendent Whyte either said that he could offer the applicant twelve twelve-hour shifts per roster or that he could offer her fourteen twelve-hour shifts per roster.
14. Following the meeting with the applicant and on the same day, Inspector Norton considered options which the Rosehill LAC could offer the applicant then had another meeting with Inspector Whyte. At that meeting, Inspector Norton and Superintendent Whyte agreed that the minimum which the Rosehill LAC could accommodate was fourteen twelve-hour shifts per roster cycle.
15. Later on the day of the meeting, Inspector Norton telephoned the applicant and told her that Superintendent Whyte was prepared to offer her a part-time work agreement of fourteen twelve-hour shifts per roster.
16. Immediately after the telephone call, the applicant contacted the Promotions Unit, Industrial Relations and Workplace Equity, to discuss her position.
17. Later that evening, the applicant emailed Superintendent Whyte, copying in Inspector Norton, outlining a proposal for a part-time work agreement which involved her working ten twelve-hour shifts per six week roster. She also proposed that there might be some liaison between the roster clerks at Rosehill LAC and Harbourside LAC to ensure that her roster and her husband's roster were "balanced."
18. On 17 April 2013, Superintendent Whyte replied to the email, reiterating that the position had been advertised as a full-time position, that he was prepared to consider her working fourteen twelve-hour shifts per roster but that he was operationally unable to accommodate a Team Leader position on 20 hours per week. He also indicated that the management of the roster cycle at Rosehill LAC with the applicant's husband's roster cycle could be difficult.
19. On 19 April 2013, the applicant emailed Superintendent Whyte indicating that she could not work fourteen twelve-hour shifts as a result of her carer's responsibilities. She proposed instead twelve twelve-hour shifts or set shifts with reduced hours.
20. On 22 April 2013, Superintendent Whyte emailed the applicant, saying he had reviewed her proposal in discussion with Inspector Norton and that he was unable to support twelve shifts per six week roster and was unable to sustain anything less than fourteen twelve-hour shifts per six week roster period.
21. Following receipt of Superintendent Whyte's email, the applicant called the NSW Police Force Equity Unit and spoke to Acting Inspector Kellie Langley (as she then was). Inspector Langley told the applicant that she would arrange a meeting with Superintendent Whyte. She then arranged the meeting for the following day.
22. On 23 April 2013, a meeting took place between the applicant, a support person, Superintendent Whyte, another officer from the Rosehill LAC, Inspector Langley, and a representative from each of the Industrial Relations section and the NSWPF Policy Unit. Immediately prior to that meeting, the representative of the Workplace Equity Unit met with Superintendent Whyte and the Rosehill HRDO. Inspector Langley's evidence is that the purpose of that meeting was to ascertain the capacity of Superintendent Whyte's command to have a sergeant team leader working part-time.
23. There is conflicting evidence as to what occurred at the meeting involving the applicant. The applicant's evidence is that Inspector Langley told her, early in the meeting, that she had heard from Inspector Whyte and that, if the applicant could not meet his requests, she would have to withdraw from the position. Inspector Langley's evidence is that she said to the applicant that, after speaking to Superintendent Whyte, it appeared he had gone through every possibility in respect of the hours the applicant was requesting, but the Command could not accommodate her request from an operational perspective. A contemporaneous file note written by Inspector Langley is consistent with this and also records that the applicant stated at the end of the meeting that she would speak with Inspector Tony Wallace, an inspector in the Appointments Unit, about potentially withdrawing from the position without penalty and considering other positions from the promotions list.
24. There does not appear to be a dispute that, at that meeting, Superintendent Whyte maintained that the minimum number of shifts he could accommodate was fourteen twelve-hour shifts over a six week roster, and that the applicant maintained that she was unable to undertake more than twelve twelve-hour shifts.
25. On 24 April 2013, the applicant lodged a complaint with the ADB of unlawful discrimination on the grounds of her responsibilities as a carer, concerning her application for a position at Rosehill LAC ("First Complaint").
26. On 30 April 2013, the applicant emailed Inspector Wallace and relinquished the Rosehill position. She stated in that email that she had "been forced to withdraw" from the promotional position "as Rosehill LAC is unable to accommodate my carers responsibilities."
27. On 1 May 2013, the ADB notified the General Counsel, NSW Police Force of the complaint.
28. On 2 May 2013, Superintendent Whyte addressed a meeting of the senior officers within the South West Metropolitan Region at which the Commander of the Campsie LAC, Superintendent McLean, was present. Superintendent Whyte spoke about the offer to a constable of a sergeant's position at Rosehill, the circumstances in which she declined it, and her making of a complaint about it.
29. Superintendent McLean provided written evidence that he recalled that Superintendent Whyte had "informed the attendees of the difficulties he had faced in negotiating a part-time work agreement and that, as a result of those difficulties, a complaint had been made." Under cross examination, Superintendent McLean said that it was not his evidence that Superintendent Whyte used the words "difficulties" or "complaint" but that he was reporting his own interpretation of what Superintendent Whyte had said. Superintendent McLean also said that he had understood Superintendent Whyte to be saying that the candidate for the Rosehill position had made a complaint to the ADB.
30. On the morning of 28 May 2013, Inspector Tony Wallace of the Appointments Unit wrote an email to Superintendent McLean advising him that the applicant was the highest ranking candidate for the Campsie position. The email contained the following words: "Last month she was the highest candidate for a position of GD [General Duties] Supervisor at Rosehill LAC but was unable to take up the position as she is part-time and wasn't prepared to work more than 12 shifts per six week roster. All positions are advertised as full-time only, including your GD Supervisor. The Part Time for Police Officers Policy clearly states: 4.1 The availability of part time work is subject to NSW Police Requirements. Please advise whether her part-time hours are acceptable to you before we make a conditional offer to her…"
31. Superintendent McLean gave evidence that he knew that the applicant had made a complaint in relation to Rosehill LAC at the time he received that email.
32. About ten minutes later, Superintendent McLean replied to Inspector Wallace by email as follows: "No mate, must be full-time. I can expand if needs be, but I would believe that the position that Rosehill LAC put forward would be much the same as what I would."
33. Superintendent McLean then telephoned Chief Inspector Maxwell, the Region's Human Resources officer, to tell him about the email from Inspector Wallace. Chief Inspector Maxwell confirmed that the applicant was "the one from Rosehill".
34. Superintendent McLean also forwarded Inspector Wallace's email to Chief Inspector Maxwell, writing: "You might want to let the boss know this is in the wind. As I understand this is the officer who has put Scott Whyte through hell at Rosehill regarding part time work. I have indicated to Tony Wallace that my position must be filled by a full time officer and he is going to indicate that to her before making a formal offer. Hopefully we will be able to go to the next person on the list after that. I will advise if this becomes an issue."
35. By "the boss," Superintendent McLean was referring to Assistant Commissioner Mennilli. Assistant Commissioner Mennilli is the Region Commander and the person to whom Superintendent McLean reports. Chief Inspector Maxwell was located in the regional office with Assistant Commissioner Mennilli, but was Superintendent McLean's subordinate.
36. Around the same time, Inspector Wallace telephoned the applicant and told her that she was the highest ranking candidate for the position of General Duties Supervisor at Campsie LAC. The applicant gave evidence that Inspector Wallace told her that Superintendent McLean had told him that her name had been mentioned at a Region meeting and that, unless she was prepared to change her position, he would give the job to the next applicant. The evidence of Superintendent McLean and Superintendent Whyte was, however, that her name had not been mentioned at that meeting.
37. Inspector Wallace then sent Superintendent McLean an email, stating: "I just spoke to [the applicant] and informed her there was no point in offering her the position as the result will only be the same as occurred at Rosehill LAC last month. She asked your name and asked for a short time to consider her position, so she may well contact you. We are still in a position to proceed with a second offer later in the week."
38. Chief Inspector Maxwell sent an email to Superintendent McLean on 28 May 2013 in the early afternoon, as follows: "Mr Mennilli - See below FYI Mr McLean - Do not accept this officer. The Region is in the Anti-Discrimination Tribunal at the moment over the Rosehill issue … The Region Commanders view, is that the position is advertised as a full time position and should be filled as such".
39. Superintendent McLean's evidence was that he did not take direction from Chief Inspector Maxwell nor did he consider that his advice was binding in any way. Under cross examination, Superintendent McLean said that, at this time, on 28 May 2013, he "had formed a view on the basis that the job was advertised on a fulltime basis, that I was within my rights to be able to follow that process and have the position filled on a fulltime basis."
40. The following morning, on 29 May 2013, the applicant emailed Inspector Wallace, setting out her account of their telephone conversation the day before and saying that she believed that the promotion should be offered to her on SAP (an electronic system used by the Police for offering positions) so that she had an opportunity to consider the position and, if necessary, begin negotiations with the Commander.
41. Inspector Wallace replied shortly afterwards, indicating that the offer would be loaded on to SAP, inviting her to contact Superintendent McLean and assuring her that the Commander was willing to negotiate a part-time work agreement if such an arrangement was possible.
42. A couple of hours later, the applicant telephoned Superintendent McLean and they had a conversation about the possibility of negotiating a part-time work agreement. The applicant gave evidence that Superintendent McLean told her that he wanted the position filled full-time and the Superintendent acknowledged that he told the applicant that it was his preference to have the position filled on a full-time basis. The applicant also said that Superintendent McLean had told her that he had "the backing of the Region Commander to have a full time officer in the position." In cross examination, Superintendent McLean denied he said those words, and stated that he had told the applicant that the region supported his position that it was preferable that the position was filled on a fulltime basis. A contemporaneous file note made by Superintendent McLean indicates that he had explained to the applicant that he "had a supporting view at region that the job be filled on a fulltime basis".
43. Both Superintendent McLean and the applicant recall that, after Superintendent McLean told the applicant he wanted a full time officer in the position, she said words to the effect of "Sir, I can appreciate you are running a command, but where does the line get drawn between running a command and discrimination?"
44. Later on 29 May 2013, the applicant received an email from the Promotions Unit offering her the Campsie Position and also received the offer through the SAP system. The applicant accepted the offer through the SAP system that day.
45. In the afternoon of 29 May 2013, the applicant emailed Superintendent McLean to inform him that she had accepted the promotion and that she was seeking to negotiate a part-time work agreement with him. The email set out her circumstances and proposed that she worked ten twelve-hour shifts per week.
46. At about 4pm on 29 May 2013, Chief Inspector Maxwell emailed Inspector Wallace, copying in Superintendent McLean and Assistant Commissioner Mennilli, asking him to explain how and why the applicant was offered the position at Campsie.
47. At about the same time, Chief Inspector Maxwell emailed Superintendent McLean, copying in Assistant Commissioner Mennilli, forwarding an email from Superintendent Whyte to the applicant, with the words "As discussed - see below - frame your response similar to Superintendent Whyte."
48. The following day, 30 May 2013, Inspector Wallace replied to Chief Inspector Maxwell's email, copying in Superintendent McLean, Assistant Commissioner Mennilli and Superintendent Clark, explaining that they had "no choice" but to offer the applicant the position, as the highest ranking candidate, and allow her to negotiate with Superintendent McLean about a part-time work agreement. He also said that "whether or not part-time work is possible is exclusively a matter for the commander."
49. Superintendent McLean replied on the same day, copying in Inspector Wallace (but not Assistant Commissioner Mennilli or Superintendent Clark), stating that "it is clear that we have to confront this issue head on, that is important to ensure that this does not become a systemic issue. I will maintain a position, which differs slightly from Superintendent Whyte, in that I cannot entertain any part time arrangement in respect to this officer."
50. On the same day, Superintendent McLean replied to an email from Acting Inspector Kellie Langley, Senior Coordinator of the Workplace Relations and Equity Unit, copying in Chief Inspector Maxwell and Inspector Wallace, informing Acting Inspector Langley that "I cannot have a part time officer in this role and that is the stance I will maintain."
51. Superintendent McLean said in cross examination that he formed a view, after reading the emails from Chief Inspector Maxwell and Inspector Wallace on 30 May 2013, that "the advice of Inspector Wallace and the advice of Chief Inspector Maxwell was inherently erroneous and at that point in time I made a decision, as the person responsible for negotiating part time work agreements, that I would exclude them from further involvement in the process, as I thought they would, and commence to negotiate agreement with the Officer." He also said that he was "not comfortable" with Chief Inspector Maxwell's conduct. He said of Chief Inspector Maxwell: "I don't know why he had become involved and he was performing a project officer's role helping Mr Minnelli with further tasks. The correspondence at one point in time I formed a view that he was thwarting the process, i.e. probably giving me directions which I need not consider and I was concerned that perhaps Chief Inspector Maxwell was operating outside the authority of the region commander. So on that basis I took a decision that I would manage this situation myself and not take advice from Chief Inspector Maxwell."
52. When it was pointed out to Superintendent McLean that his emails on 30 May 2013 suggested that he had not immediately rejected the advice of Chief Inspector Maxwell and Inspector Wallace, he accepted that. His evidence during cross examination indicates that he is more likely to have decided to "exclude them from involvement" at a later point in time.
53. Superintendent McLean's evidence was that, notwithstanding his email to Acting Inspector Langley, he understood that he needed to consider the applicant's request to see if a part-time agreement could be negotiated, in accordance with the Part-Time Policy. He gave evidence that he considered the minimum number of shifts that the Campsie LAC would require in order for it to be appropriately resourced and determined that it would be able to accommodate the applicant doing seventeen shifts. He said that, at the time, he did not know the nature of any discussions or negotiations that the applicant had had with Rosehill LAC and did not know whether she would be able to work seventeen shifts. However, he was aware that she was working ten twelve-hour shifts in her then current position.
54. Under cross examination, he said that it was not until 3 June 2013 that he cast his mind to any legislative requirements, the Police Force's policies around part-time work and carer's responsibilities and understood that he had an obligation to discuss part-time arrangements with the applicant.
55. On 3 June 2013, Superintendent McLean forwarded by email to his HRDO, the email from Chief Inspector Maxwell of 29 May 2013 which had forwarded Superintendent Whyte's email to the applicant, asking the HRDO to "draft something up with the same terms as what come [sic] from Scott Whyte at Rosehill."
56. Later that day, the Campsie HRDO sent Superintendent McLean a draft email to the applicant for the Commander's consideration, in which it was proposed, "as a starting point," that the applicant would work 15 shifts in a six week period.
57. At 2.06 pm on 3 June 2013, Superintendent McLean emailed the applicant, stating in response to her proposal: "The position advertised is a full time position (228 hours in six weeks) and no doubt you would be aware that the position was nominated as; 'ESSENTIAL INFORMATION Unless otherwise stated, all vacancies are full time positions and appointment is on a full time basis'. When considering such a proposal I am mindful of the impact your absence will have on you, other team leaders, your potential subordinates, the Command and the community, which by its nature is complex and demanding. At this current time and into the future I am unable to accommodate a supervisor who can only work 10 shifts within a six week period. As the Commander I am required to fulfil my obligations under the first response agreement and reasonably provide appropriate supervision and resources to all staff. I am also required from time to time to meet staffing orders from the Region and other areas of the organisation. I would be prepared to negotiate a part time agreement with an increase in your hours. As a starting point I would look towards a 34 hour a week arrangement which enable 17 shifts in a six week period."
58. It was put to Superintendent McLean that the offer of 17 shifts per roster was not genuine. The applicant's senior counsel, Ms Ronalds SC, suggested that he set up a sham process so it looked like he was complying with the part-time policy when he knew that the maximum the applicant could do was twelve shifts in a six week roster. Superintendent McLean denied this and denied that it was not a genuine offer, saying he had changed his mind about negotiating with the applicant between 30 May 2013 and 3 June 2013. He denied that he had put a proposal to the applicant that he knew she could not meet. He also said that he had decided 17 shifts was an appropriate offer, having consulted the rosters for the Campsie LAC.
59. On 6 June 2013, the applicant emailed Superintendent McLean informing him that his proposal would not allow her to fulfil her carer's responsibilities and that she was therefore forced to withdraw from the position.
60. On 2 August 2013, the applicant lodged two further complaints with the ADB. The applicant alleged she was subjected to indirect discrimination on the ground of her responsibilities as a carer with respect to her application for the Campsie position ("Second Complaint"). She also alleged that she had been victimised ("Third Complaint"). On 26 August 2013, the ADB notified the General Counsel, NSW Police Force of the Second and Third Complaints.
61. On 16 December 2013, the President of the ADB referred the three complaints to the Administrative Decisions Tribunal ("ADT"). In the Summary of Complaint made on behalf of the President of the ADB, the First Complaint is stated to cover the period 28 March 2013 to 26 April 2013 and the Second Complaint to cover the period from 28 May 2013 to 2 August 2013.
62. On 1 January 2014, the ADT was abolished and the jurisdiction to determine complaints under the AD Act was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal: Civil and Administrative Tribunal Act 2013 (NSW), Schedule 3, cl 3(1).
63. In accordance with cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act, this application was an "unheard" proceeding. Clause 7 of Sch 1 provides that the Tribunal has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.

RELEVANT ANTI-DISCRIMINATION PROVISIONS

1. The AD Act was amended on 21 June 2013 by the Courts and Other Miscellaneous Legislation Amendment Act 2013 (NSW). That relevantly amended s 49T of the AD Act. The applicant's complaints of direct and indirect discrimination relate to conduct of the respondent prior to 21 June 2013. Accordingly, the versions of ss 49S, 49T and 49V which were in force between 28 March 2013 and 21 June 2013 are applicable to her complaint. Section 50 has not been amended since 1994.
2. Section 49V(2) of the AD Act, on which the applicant relies, relevantly provided that it is unlawful to discriminate against an employee on the grounds of his or her responsibilities as a carer as follows: "49V Discrimination against applicants and employees (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer: (a) in the terms or conditions of employment that the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment."
3. "Responsibilities as a carer" was defined in s 49S(1)(a) to mean, relevantly, the person's responsibilities to care for or support any child of the person who is wholly or substantially dependent on the person, or in need of care or support.
4. Until and including 20 June 2013, s 49T of the AD Act provided for what constitutes discrimination on the ground of a person's responsibilities as a carer as follows: "49T What constitutes discrimination on the ground of a person's responsibilities as a carer (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person's responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, 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 such responsibilities comply or are able to comply, being a requirement that 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 responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer."
5. Section 50 of the AD Act provided: "50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith."

DIRECT DISCRIMINATION CLAIM: RESPONSIBILITIES AS A CARER IN WORK

1. The substantive discrimination provision relied upon by the applicant is s 49V(2) of the AD Act. In her Amended Points of Claim, she claims that the Commissioner discriminated against her on the ground of her responsibilities as a carer in the terms or conditions of employment afforded to her (s 49V(2)(a)), by denying her access, or limiting her access, to opportunities for promotion (s 49V(2)(b)) and/or by subjecting her to another detriment (s 49V(2)(d)). The claim concerning s 49V(2) is made in her pleadings under the heading "Direct Discrimination."
2. In order to establish her direct discrimination case, the applicant must establish: 1. that s 49V(2)(a), (b) and (d) of the AD Act applies with respect to her applications for promotion to full-time position as a sergeant, in circumstances where she wished to work part-time; 2. that Superintendent Whyte and/or Superintendent McLean treated the applicant less favourably than the appropriate comparator in the same or not materially different circumstances; and 3. that they did so because the applicant had responsibilities as a carer.

Did the applicant have responsibilities as a carer?

1. It is not in dispute that, between 27 March 2013 and 2 August 2013, the applicant had three young children, all of them under school age.
2. The applicant submits that, at that age, the children were self-evidently dependent upon her for care and support. She relies upon Wright v Commissioner of Police [2014] NSWCATAD 16 at [15] as authority for the proposition that an applicant need not provide evidence of the extent of his or her carer's responsibilities for the purpose of proving that he or she has those responsibilities.
3. The respondent contested the applicant's claim that her children were self-evidently dependent upon her, submitting that it was only self-evident that infant children are dependent on the support of an adult, who may be a parent, another relative or a caregiver. The respondent also submitted that the nature and extent of the applicant's responsibilities as a carer were not clear on the evidence, but that the evidence indicated that her responsibilities to care for her children were only at times that her husband was at work.
4. The applicant is required to establish that she has responsibilities as a carer by evidence. It is not something of which the Tribunal may take judicial notice: see Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAP 67 at [64]. The proposition that it is not necessary to establish the extent of a person's responsibilities as a carer to establish that such responsibilities exist does not negate the need for evidence of the existence of such responsibilities.
5. The applicant gave evidence that, if she was unable to organise someone else to look after her children while she was at work, then she would have to look after them. She also gave evidence that she had discussed the care of the children with her husband and they had decided that the applicant would be the primary carer. In a sworn statement, she said while working 10 shifts per roster cycle at the Harbourside LAC, she "had considered a number of times whether I could work more hours, but it simply was not possible due to the need to care for our children". She also stated, in the context of considering options for the care of her children prior to making a decision about the position at the Rosehill LAC, "I was the primary carer [sic] my children."
6. I am satisfied, from the applicant's evidence, that she had responsibilities as a carer for her three children at the relevant times.

Discrimination against employees: s 49V(2)

1. The extent of the applicant's pleading in relation to the application of s 49V is that "[e]ach of the Rosehill Condition and the Campsie Condition was unlawful discrimination in breach of ss 49V(2)(a), (b) and (d)." There is no pleading as to how each of s 49V(2)(a), (b) and (d) are engaged or apply to the applicant's circumstances. The relevant material facts (such as the alleged terms and conditions of employment for the purposes of s 49V(2)(a)) are not identified. This is unfortunate because it makes it difficult for the respondent to know the case he has to meet and for the Tribunal to identify the limits of that case.
2. The "Rosehill Condition" and the "Campsie Condition" are terms the applicant defines in the Amended Points of Claim, in the context of pleading less favourable treatment. The applicant pleads that the respondent has treated her "less favourably than the comparator" by: 1. making it a condition of the applicant taking up her appointment to the Rosehill Position that she work a minimum of fourteen twelve-hour shifts in a six-week roster period (referred to by the applicant as the "Rosehill Condition"); and 2. making it a condition of the applicant taking up her appointment to the Campsie Position that she work a minimum of seventeen twelve-hour shifts in a six-week roster period (referred to by the applicant as the "Campsie Condition").
3. In her submissions, the applicant identifies the ways in which s 49V(2) is engaged as follows: 1. the Rosehill Condition and/or the Campsie Condition are "terms and conditions of employment" that the respondent "affords" the applicant within s 49V(2)(a); 2. the imposition of the Campsie Condition and Rosehill Condition denied or limited the applicant access to opportunities for promotion within s 49V(2)(b); and/or 3. the imposition of the Rosehill Condition and the Campsie Condition are a "detriment" within s 49V(2)(d), meaning that the inability to meet the condition led immediately and directly to a detriment, that is, the loss of a promotion.
4. I will now consider whether any of these paragraphs of s 49V(2) apply to the applicant's circumstances.

Terms and conditions of employment (s 49V(2)(a))

1. In support of her argument that the Rosehill and Campsie Conditions were terms or conditions of her employment, the applicant relies on a passage in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 in which Lee J said that the expression "terms and conditions of employment which he affords him," as it then appeared in s 25(2) of the AD Act, is not "restricted to the matter of the terms of contract of employment" but is "designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be." As the applicant points out, this passage was cited with approval by Gummow, Hayne and Crennan JJ in New South Wales v Amery (2006) 230 CLR 174 at 196 [67]-[68].
2. The applicant submits that her "employment" (for the purposes of s 49V(2)(a) of the AD Act) is the appointment as a Sergeant, General Duties, Supervisor and the terms and conditions of that employment include the right to request a part-time work arrangement. The applicant submits, further, that the Rosehill and Campsie Conditions are stipulations as to the minimum hours which the Commanders could accommodate and are "demands and requirements" with which the applicant had to comply.
3. The Commissioner does not accept that the Rosehill and Campsie Conditions are terms or conditions of the applicant's employment, and submits that they are rather concessions offered by the Commanders but never accepted by the applicant. He submits that s 49V(2) is not concerned with the terms or conditions which may be offered to an employee, and that this is the subject of s 49V(1) (which is not relied upon by the applicant).
4. The Commissioner relies upon Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 ("Laycock"), which also concerned an application for promotion and which the Commissioner says is relevantly similar to this case. In Laycock, the ADT said that the provisions concerning disability discrimination in employment in the AD Act were to be understood in the context of "the entire body of law which governs the employment relationship" (at [44]). The Tribunal referred (at [45]) to the common law entitlement of an employer "to determine what actual work an employee will perform so long as the parties have contracted for work of that nature and the employer's directions are lawful and reasonable."
5. The Commissioner submitted that the Rosehill and Campsie positions were advertised as full-time positions and that it was a term and condition of both positions that the duties be performed full-time. It followed that the Rosehill and Campsie Conditions represented a concession that both Commanders were prepared to make to assist the applicant.
6. The Commissioner also relied upon Kelly v TPG Internet Pty Ltd (2003) 176 FLR 214 ("Kelly") to support his argument that the Rosehill and Campsie Conditions were not terms or conditions of employment. In that case, an employee claimed that her employer discriminated against her under the Sex Discrimination Act 1984 (Cth) by imposing a condition that she work on a full-time basis upon her return from maternity leave. She had been working full time prior to taking maternity leave. Raphael FM said at 234 [82] that the refusal to provide the employee with part-time employment was a refusal to provide her with a benefit rather than the imposition of a condition, requirement or practice that was a detriment.
7. The Commissioner submitted that s 49V(2) is not concerned with the terms or conditions which may be offered to an employee, but rather that s 49V(1) is concerned with the terms on which employment is offered. The Commissioner argues that the applicant was seeking a new position, with new duties and new terms. In these circumstances, in the Commissioner's submission, the Rosehill and Campsie Conditions were not terms and conditions of the Applicant's employment within the meaning of s 49V(2)(a) of the AD Act.
8. In her reply submissions, the applicant said that s 49V(1) has no application to these proceedings because s 49V(1) refers to a "person" whereas s 49V(2) refers to an "employee." In her view, s 49V(1) can have no application to a person who is already an employee. Further, the applicant says the promotional positions had new duties, but did not have new terms, as the 2009 Award and part-time work policy applied to both the applicant's existing position and to the promotional positions.
9. The applicant sought to distinguish Laycock, on the basis that the applicant had a right to request a part-time work agreement under the 2009 Award and Part Time Work Policy, unlike Mr Laycock, who requested a restricted duties version of a promotional position on the basis of his disability. She said that, unlike Mr Laycock, the applicant was not seeking a concession or qualification to the position she had accepted.
10. The applicant also sought to distinguish Kelly on the basis that the applicant's existing position was not one of full-time employment and she was not seeking a "benefit" in the way that term was used in Kelly, because she had a right to request part-time work.

Consideration

1. The first issue to consider is what the applicant's employment was for the purposes of s 49V(2)(a). Some light is thrown upon this question by the High Court decision in New South Wales v Amery (2006) 230 CLR 174.
2. Amery was a case concerning alleged sex discrimination under s 25(2)(a) of the AD Act, which is broadly equivalent to s 49V(2)(a). Under State legislation, school teachers were classified as either permanent teachers or casual teachers. The highest daily rate for casual teachers was equivalent to level eight of a thirteen level scale that applied to permanent teachers. A number of female casual teachers contended that the pay differentials between casual and permanent teachers had the effect of indirectly discriminating against them on the ground of sex. They claimed that they were required to comply with the requirement or condition of obtaining permanent employment in order to access the upper levels of pay on the salary scale applicable to permanent teachers.
3. The High Court found that the casual teachers had not been discriminated against within s 25(2)(a) of the AD Act. Section 25(2)(a) provided that it was unlawful to discriminate "in the terms or conditions of employment which the employer affords the employee". It was therefore necessary to characterise the teachers' "employment" for the purposes of that provision. Gummow, Hayne and Crennan JJ remarked (at 196 [68], Callinan J agreeing at 232 [205]-[206] and Heydon J agreeing at 233 [210]), "In short, the presence of the word 'employment' in s 25(2)(a) prompts the question, 'employment as what?'" Their Honours continued (at 196 [69]): "The scheme of the Teaching Services Act meant that the respondents were employed, not merely as teachers, but as casual teachers within the Education Teaching Service. There is an element of incongruity in describing as a requirement or condition, compliance with which is required in the terms and conditions of employment as a casual teacher, a requirement that in order to access higher levels of salary, one must cease to be a casual teacher and obtain permanent appointment."
4. Thus, five members of the High Court considered firstly that it was necessary to define the employees' current employment precisely, in accordance with the relevant legislative scheme, and secondly, that it was not legitimate to identify a requirement or condition which applied when giving up the employees' current employment as a requirement or condition of that employment.
5. The applicant's submissions slide between asserting that the relevant employment is the employment in the promotional positions, and that it is her employment prior to accepting either of those positions. The statutory scheme under the Police Act meant that the applicant was employed not just as a police officer, but as a police officer at the rank of constable (Police Act, ss 12(1)(f), 80). As in Amery, there is an element of incongruity in describing as a requirement or condition of the applicant's employment those requirements which would need to be met to obtain a different position.
6. There is also a question as to whether the applicant was, in fact, ever employed in the Rosehill or Campsie positions, for the purposes of considering the "terms or conditions of employment" afforded to her, within s 49V(2)(a). The applicant accepted conditional offers of employment in both those positions, then withdrew her acceptance in respect of each of them. The offers were conditional upon satisfactory results in medical and integrity checks.
7. In my view, at the time she was offered those positions, she had not yet been appointed to them. Section 71(1)(b) of the Police Act provided, at the relevant times, that it was the Commissioner's duty before appointing a person, by way of promotion, as a non-executive police officer, to make inquiries (from the Police Integrity Commission, the Commander, Professional Standards Command, and from any other person or body the Commissioner thinks appropriate), as to the integrity of the person. Further, by s 71(4), the Commissioner may change a decision to appoint a person before the person is appointed if the Commissioner receives information as to the person's integrity which causes the Commissioner to form the opinion that the person is not a suitable person to be so appointed.
8. At the time the applicant accepted the offers, those inquiries had not been conducted. The Commissioner had provisionally decided to appoint her to the relevant positions, but had not yet done so. Accordingly, any terms and conditions of the applicant's prospective appointment in the Rosehill and Campsie positions were not terms and conditions of her current or actual employment. It would be straining the language of s 49V(2)(a) to say that it was a requirement or condition of the applicant's employment at the time of applying for those positions that she accept the specified promotional positions on a full time basis. In my view, they were not "terms or conditions of employment that the employer affords the employee" (my emphasis) because at no time did they apply to the applicant's employment. Rather, if they were terms and conditions at all, they were terms and conditions of employment in a position to which the applicant had not been appointed. If, contrary to my view, she had been appointed to it, her employment in the position had not yet commenced.
9. I accept the respondent's submission that s 49V(2)(a) is not concerned with the terms or conditions which may be offered to an employee, but is rather concerned with terms and conditions which an employer currently provides to or "affords" the employee. I do not have to reach a view as to the applicant's position that s 49V(1) has no application to a person who is already an employee, as the applicant has not relied upon s 49V(1) (other than as a means of construing s 49V(2)). However, I incline to the view that, being beneficial legislation, s 49V(1) should be construed liberally (see IW v City of Perth (1997) 191 CLR 1, Brennan CJ and McHugh J at 12 and 15; Waters v Public Transport Corporation (1991) 173 CLR 349, Mason CJ and Gaudron J at 359; Brennan J at 372; Dawson and Toohey JJ at 394; McHugh J at 407). That is, if I needed to decide the matter, I would construe s 49V(1) as applying to any "person," including a current employee. This construction gains some support from the use of the word "person" in the opening words of s 49T(1) to describe both a person referred to in s 49V(1) and an employee referred to in s 49V(2). It follows that, if an employer made arrangements for the purpose of determining who should be offered employment in an advertised position, and both current employees and others applied for the position, s 49V(1)(a) would apply to all applicants for the position. This, in my view, is consistent with the language of the provision and the beneficial purposes of the legislation.
10. For the reasons given above, I find that the applicant has not established that the Rosehill or Campsie Conditions are terms or conditions of employment that the Commissioner afforded the applicant within s 49V(2)(a) of the AD Act.
11. In case I am wrong in my conclusion that the applicant was never employed in the Rosehill and Campsie positions, so that any conditions of employment in those positions were not "afforded" to her within s 49V(2)(a), I have also considered whether the Rosehill and Campsie Conditions were "terms and conditions" of her prospective employment as a sergeant.
12. After the applicant had accepted each offer, the terms and conditions of her prospective future employment included working full time. She then sought to negotiate a part-time work agreement in each command. She was offered, but did not accept, the offer to work fourteen twelve-hour shifts in a six-week roster period at Rosehill and the offer to work seventeen twelve-hour shifts in a six-week roster period at Campsie.
13. I accept that the expression "terms or conditions of employment" in s 49V(2) of the AD ACT is of broad import. However, in this case, the terms and conditions of the applicant's prospective employment were in fact more demanding than the Rosehill and Campsie Conditions: they were that the applicant work full time, albeit that they also included a right to negotiate a flexible working agreement. The offers made to the applicant by each Commander allowing her to work fewer hours than a full-time position required were not terms and conditions of her employment, because they were not accepted by her.
14. The decisions in Kelly and Laycock are not determinative of the question of whether the offers of part-time work made to the applicant, which she has termed the Rosehill and Campsie Conditions, were terms or conditions of her employment. Neither Kelly nor Laycock addresses the question of whether the terms of an offer of a promotion could constitute the terms or conditions of an existing employee's employment. Neither case deals with the situation where an employee accepts a promotion which is advertised on a full-time basis, then negotiates for part-time conditions but is unable to accept the conditions offered to her due to carer's responsibilities (or any other basis upon which it is unlawful to discriminate).
15. I agree with the respondent, essentially for the reasons given in the submissions made on his behalf, that the offers made to the applicant to work fewer hours than a full-time work load were concessions, made in the course of negotiations, and not terms or conditions of employment afforded to her within s 49V(2)(a).

Denying or limiting applicant's access to promotional opportunities (s 49V(2)(b))

1. The applicant submits that the imposition of both the Rosehill and Campsie Conditions had the effect of denying her access to opportunities for promotion or limiting her access to opportunities for promotion within s 49V(2)(b). She says that she was unable to take up either position due to those "conditions." The applicant does not allege that the Commissioner denied or limited her access to "any other benefits associated with employment" within s 49V(2)(b).
2. The Commissioner submits that the applicant had the opportunity to apply for promotion and that there was no limitation on her access to the opportunity to seek a promotion. He says that s 49V(2)(b) does not provide for a right to be promoted or to be promoted on terms sought by an employee and contends that it is concerned only with the denial or limitation of access to the opportunity to be promoted.
3. It is the Commissioner's position that the evidence establishes that the applicant had and used opportunities for promotion, so there is no basis for finding that s 49V(2)(b) applies on the evidence before the Tribunal. The Commissioner says, further, that s 49V(2)(b) has no application to the terms and conditions on which a promotion may be offered.
4. As a more general proposition, the Commissioner submits that the applicant seeks to strain the language of s 49V(2) of the Act to apply to a claim which is essentially about a failure to accord special treatment to her. He relies upon the remarks of Brennan J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 372 that "[a]nti-discrimination legislation should be liberally construed but not as though it were the only, or even the principal, means by which the disadvantages of the disabled or of other minority groups are to be alleviated."
5. In reply, the applicant submits that the inclusion of a police officer's name on the promotions list does not mean the police officer has the opportunity to be promoted. The applicant's position appears to be that such an opportunity arises only after a police officer has nominated for a position on a Sergeants Vacancy List. The applicant says that it was never her position that s 49V(2)(b) provides for a right to be promoted or to be promoted on terms sought by an employee; the right to be promoted, she says, stems from s 66(4) of the Police Act. She claims she was not seeking "special treatment" in circumstances where the 2009 Award and the Part Time Work Policy provided that she had a right to request part-time work.
6. The applicant submits that the Tribunal will have no difficulty in accepting that the Rosehill and Campsie Conditions "denied the Applicant the opportunity to either promotion because she simply could not comply with them, or at the very least limited her capacity to take up either promotion." The applicant submits further that the Rosehill and Campsie Conditions were arbitrary conditions imposed so as to create a barrier to the applicant taking up the promotional opportunities she had won on merit and to enable the Commanders to have a full time person in the positions.

Consideration

1. The applicant's evidence is that she could not work more than twelve twelve-hour shifts per six week roster whilst still fulfilling her carer's responsibilities. She said that she "had considered a number of times whether I could work more hours, but it simply was not possible due to the need to care for our children." The applicant also gave evidence that she had investigated various childcare options for her children, but was unable to arrange suitable care to enable her children so as to enable her to work more than twelve twelve-hour shifts per six week roster. I accept the applicant's evidence that she was not able to work more than twelve twelve-hour shifts per roster at the relevant times whilst fulfilling her carer's responsibilities.
2. Section 49V(2)(b) is concerned with conduct which, relevantly, denies or limits a person's access to opportunities for promotion. Unless the contrary intention is apparent in the AD Act, a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form (Interpretation Act 1987, ss 5(2), 8(c)). Thus, in the absence of a contrary intention, s 49V(2)(b) applies to conduct denying or limiting a person's access to a single opportunity for promotion. Neither party submitted that there was a contrary intention apparent in the AD Act or addressed this issue at all. It is arguable that s 49V(2)(b) is intended to be confined to conduct which limits a person's access to promotional opportunities generally, rather than with conduct which limits a person's access to a particular promotional position. However, as already indicated, this was not argued before the Tribunal. Further, having regard to the beneficial nature of the legislation, I accept for the purposes of these proceedings that s 49V(2)(b) may apply to conduct denying or limiting a person's access to a particular opportunity for promotion.
3. The applicant's submission that she was denied "an opportunity to" the Rosehill or Campsie positions because she could not comply with either of the Rosehill or the Campsie Conditions requires further analysis. Section 49V(2)(b) is not directly concerned with the denial of an opportunity to a position (to use the applicant's language); rather, it applies where an employer has denied or limited a person's access to promotional opportunities or to a promotional opportunity.
4. There are surprisingly few cases which deal with the meaning of s 49V(2)(b) or equivalent provisions. In Coleman v Commissioner of Police, New South Wales Police Service [2001] NSWADT 34, the Tribunal considered the situation of a person with a disability who applied for promotion, was selected for a position by a selection panel, but was then advised he was unsuccessful in his application for the position. The decision maker declined to approve the recommendation of the interview panel that the complainant be appointed to the position because of her view that, as a result of his disabilities, the complainant could not fulfil the full duties of the position. The Tribunal found that the "facts clearly demonstrate that the respondent, an employer, denied an employee, the complainant, access to an opportunity for promotion" (at [29]). The key question in that case became whether the employer's conduct was lawful on the basis that the complainant "would be unable to carry out the inherent requirements of the particular employment" within s 49D(4)(a) of the AD Act.
5. Kelly concerned the question "whether or not the actions of this employer in not offering the applicant an opportunity to take up part time employment upon her return from maternity leave constituted direct or indirect discrimination" (at [63]) but did not consider what is meant by limiting or denying an employee's access to promotional opportunities. It is of limited assistance in this context.
6. In Laycock, the complainant was the recommended officer for the promotional position of Investigations Manager, but was not offered that position because he was found to be medically unfit for full operational duty. Mr Laycock claimed that his employer had contravened s 49D(2)(b) of the AD Act by discriminating against him on the ground of his disability (a provision equivalent to s 49V(2)(b)). The Tribunal found at [50] that "[t]his part of the applicant's case falls squarely within s 49D(2)(b) of the Act for he has claimed that the respondent denied him 'access … to opportunities for promotion' when Ms Myers and Superintendent Hodsdon acted as they did on 19 September 2002."
7. It is clear from Coleman and Laycock that an employer's decision not to offer a person a promotional position he or she won on merit on the basis of the employer's view that the employee could not fulfil the duties of the position for medical reasons, was a denial of an opportunity for promotion. By analogy, an employer who requires a person who has carer's responsibilities to accept a promotional position on a full time basis, or on a basis which requires the person to work more hours than the person is able to work whilst still fulfilling the person's carer's responsibilities, may deny or limit that person's opportunities for promotion within s 49V(2)(b).
8. I am mindful of Brennan J's warning that the beneficial operation of anti-discrimination legislation "is prejudiced by invoking its assistance to achieve remedies which can be achieved only by straining the legislative language" (Waters v Public Transport Corporation (1991) 173 CLR 349 at 372). It could be argued, contrary to the interpretation of s 49V(2)(b) that I have reached, that it was not intended to apply so as to require an employer to offer a full-time promotional position to a person with carer's responsibilities on a part-time basis where that person is unable to accept the position on a full-time basis (and, what is more, to offer it at the number of hours required by that person). Such a view could gain some support from the comment in Kelly that Ms Kelly's "demand" to work part time constituted "a form of request for positive discrimination" and what was being sought was "the provision of a benefit and not the imposition of a detriment" (at [78]-[79]).
9. Notwithstanding these considerations, I am of the view that s 49V(2)(b) is invoked in the present circumstances. First, it does not strain the legislative language to find that an employee's access to a promotional opportunity is denied or limited by the employer requiring her to undertake the duties of that position by working a number of shifts which the employee is unable to work. On the contrary, this conclusion is consistent with the ordinary meaning of the text of s 49V(2)(b).
10. Secondly, the remarks in Kelly were made in the context of considering whether the employer had imposed a condition or requirement upon her under s 14(2)(a) of the Sex Discrimination Act 1984 (Cth). The Court found (at [82]) that "the refusal to provide Ms Kelly with part time employment was a refusal to provide her with a benefit rather than the imposition of a condition requirement or practice that was a detriment". These comments do not directly assist in determining whether s 49V(2)(b) applies in this case, in circumstances where it is not alleged that the Commissioner denied the applicant access "to any other benefits associated with employment" within that provision. It is important not to confuse the question of whether the applicant was subjected to a detriment, within s 49V(2)(d), with the question of whether her access to promotional opportunities was denied or limited.
11. Thirdly, a finding that the Commissioner's conduct limited or denied the applicant access to promotional opportunities does not amount to finding that an employer is required to offer a full-time promotional position to a person with carer's responsibilities on a part-time basis, if the person cannot manage to carry out the position full-time. The employee also needs to establish that he or she has been discriminated against on the ground of his or her carer's responsibilities, in order to establish unlawful discrimination.
12. For these reasons, I am satisfied that an employer may deny or limit an employee's access to promotional opportunities within s 49V(2)(b) by providing those opportunities on a basis which requires the employee to work more hours than he or she is able to work.
13. The next matter to consider is whether the applicant has made out her case as pleaded, and as illuminated in her submissions. The applicant has alleged that her access to promotional opportunities was denied or limited by the imposition of the Rosehill and Campsie Conditions. To reiterate, these are defined as making it a condition of the applicant taking up her appointment to the relevant position that she work a minimum of fourteen or seventeen twelve-hour shifts in a six-week roster period. It is important to recall that the terms "Rosehill Condition" and "Campsie Condition" are essentially ways of describing the effect of offers made by the respective commanders of a part-time work agreement in circumstances where a position had been advertised full time and accepted on that basis by the applicant. There is a real question as to whether these were "conditions" of her taking up those positions and, if so, whether the conditions were "imposed" on the applicant.
14. The evidence establishes that the applicant would not have been permitted to work in the Rosehill position unless she worked at least fourteen shifts per roster period. The Macquarie Dictionary defines "condition" as including "a restricting, limiting, or modifying circumstance," "a circumstance indispensable to some result" and "something demanded as an essential part of an agreement." The applicant had accepted the Rosehill position on the "condition" that it was a full-time position, but in practical terms she was negotiating to achieve different conditions. I am satisfied that it was a "condition" of the applicant working in the Rosehill position that she perform at least fourteen shifts per six week roster. I also find that, through Superintendent Whyte, the Commissioner "imposed" this upon her because, although there was a negotiation process, the offer made to the applicant was ultimately in Superintendent Whyte's discretion. Further, I find that the Rosehill Condition denied or limited the applicant's access to the opportunity to be promoted to the Rosehill position. She did not have access to that opportunity in a practical sense, in that she was unable to carry out the duties of the position whilst meeting her responsibilities as a carer for her three children.
15. In the case of the Campsie position, the applicant withdrew from negotiations after the Commander had made her an offer of seventeen twelve-hour shifts per six week roster. Superintendent McLean's offer was made in circumstances where the applicant had accepted a position which had been advertised as being full-time, the Commander had told her that it was his preference to have the position filled on a full-time basis and she had proposed working ten shifts per roster period several days earlier. Superintendent McLean's evidence was that he could only accommodate the applicant working seventeen shifts, given the requirements of the block roster. Seventeen shifts was proposed in Superintendent McLean's email to the applicant as "a starting point," but those words may mean that it was proposed that the applicant initially work seventeen shifts per roster, rather than that this was a "starting point" for negotiations (which had already started with the applicant's much lower offer). The Superintendent's previous remarks to the applicant, and the remainder of the email, make plain that he was unwilling to have her work fewer than seventeen shifts. As indicated previously, the hours were entirely in the commander's discretion.
16. In these circumstances, I am satisfied that it was in fact a condition of the applicant "taking up" the Campsie position that she work seventeen shifts per roster cycle, notwithstanding that she did not make a counter offer. This condition limited or denied her access to the promotional opportunity at Campsie because she was unable to fulfil it whilst providing the requisite level of care to her children.
17. For these reasons, the Commissioner's conduct in imposing the Rosehill and Campsie conditions attracted the operation of s 49V(2)(b) of the AD Act.
18. Having found that s 49V(2)(b) is engaged, it is not necessary to consider, for the purposes of the applicant's direct discrimination claim, the applicant's allegation that the imposition of the Rosehill and Campsie Conditions subjected the applicant to a detriment within s 49V(2)(d).

DIRECT DISCRIMINATION CLAIM: ELEMENTS OF DISCRIMINATION

1. The applicant submits that the Commissioner directly discriminated against her, on the ground of her responsibilities as a carer, contrary to s 49T(1)(a) of the AD Act, by treating her less favourably than a hypothetical comparator by imposing the Rosehill and Campsie Conditions upon her.

Less favourable treatment

1. In order to determine whether the applicant was treated "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 [carer's] responsibilities" within s 49T(1)(a), it is necessary to identify the appropriate comparator.

Comparator

1. In her amended points of claim, the applicant identifies the comparator as a police officer who has been offered and accepted an appointment to the relevant promotional position and who does not require a part-time work agreement in order to meet the police officer's responsibilities as a carer. That is, she identifies a hypothetical comparator. The key difference between the applicant and the hypothetical comparator is that the applicant requires a part-time work agreement due to her carer's responsibilities and the comparator does not.
2. The applicant maintains in her submissions that the "characteristics extension" in s 49T(2) affects the constitution of the comparator for both the assessment of causation and the assessment of less favourable treatment. She claims that the need to be absent from a person's employment to provide care and support to another person is a characteristic that appertains to or is generally imputed to persons with responsibilities as a carer for young children. In other words, her case is that the effect of s 49T(2) is that the comparison which must be undertaken under s 49T(1)(a) may be made between the treatment of the applicant, on the one hand, and the hypothetical treatment of a person who does not need to be absent from his or her employment, on the other.
3. The respondent claims that the applicant has not identified the comparator correctly. In the respondent's characterisation, the comparator is an applicant for promotion to a general duties team leader position who wanted to perform full-time duties on a part-time basis. The Commissioner submits that "the fundamental error in the approach posed by the Applicant" is that she is seeking to compare "persons with characteristics that may respectively appertain or are imputed to persons with or without responsibilities as a carer" and that this is contrary to what is required by s 49T(1)(a). It is submitted on his behalf that this is precisely what the majority of the High Court in Purvis v State of New South Wales (2003) 217 CLR 92 said should not be done.
4. The applicant rejects the Commissioner's claim that her position is based upon McHugh and Kirby JJ's judgment in Purvis v State of New South Wales (2003) 217 CLR 92 ("Purvis"). She says that she relies upon the majority's view in that case that "the necessary comparison to make is with the treatment of a person without the relevant disability" (at 160 [222]). The applicant submits that Purvis was not a case about the equivalent of the equivalent of the extension in s 49T(2) and should be understood in that context.
5. The applicant relies upon a passage in Walker v State of New South Wales [2003] NSWADT 13 in which the Tribunal commented (at [43]): "The significance of the 'characteristics extension' is that it broadens the statutory definition of discrimination and, consequently, it affects the questions which the Tribunal must ask itself when undertaking both the differential treatment and the causation analysis in a direct discrimination case. The relevant characteristic is removed from the equation when comparing the treatment which was afforded to the applicant to the treatment which was, or would have been afforded to the 'comparator'. Thus, had the applicant in this case, as a person with a disability related to mobility, been accompanied to the court complex with a dog, the comparison to have been undertaken when considering differential treatment would have been between the treatment afforded to the applicant when accompanied by a dog with the treatment which was, or would have been, afforded to another person without a dog."
6. The respondent's position is that if, contrary to his primary submissions, working part-time is a characteristic appertaining generally to carers, such an extension applies only to the causation element of direct discrimination and not to the element of "less favourable treatment."

Consideration

1. I accept the respondent's position as to the appropriate comparator and I also accept the respondent's submission that the characteristics extension does not apply when considering whether the applicant was subject to less favourable treatment than the comparator. I agree with the respondent that the majority's decision in Purvis is fatal to the applicant's claim that the comparator is a police officer who does not require a part-time work agreement.
2. Purvis concerned the treatment of a school student with a disability who behaved violently as a consequence of the disability. The majority of the High Court rejected the proposition that the appropriate comparator was a school student without a disability who did not behave violently. As Gleeson CJ stated: "[t]he required comparison is with a pupil without the disability; not a pupil without the violence" (at 101 [11]; see also Gummow, Hayne and Heydon JJ at 160 [222]-161 [225], Callinan J agreeing). The majority considered that the words "in circumstances that are the same or are not materially different" in the Disability Discrimination Act 1992 (Cth) (which are similar to words used in s 49T(1)(a) of the AD Act) required the child's violent behaviour to be considered as part of the relevant "circumstances."
3. By analogy to the comparator in Purvis, the appropriate comparator is a person without carer's responsibilities who is "in the same circumstances, or in circumstances which are not materially different" from those of the applicant. That is, the comparator is a person without carer's responsibilities who wishes to work part-time or who is only able to work part-time. This is consistent with the approach taken by the Tribunal in Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 at [157] and that of the former Administrative Decisions Tribunal in Correy v St Joseph's Hospital Ltd [2007] NSWADT 104 at [89]-[97]. As the respondent points out, Walker was decided before Purvis and it is the later High Court case, rather than the earlier decision of the Administrative Decisions Tribunal, which represents the law.
4. The characteristics extension in s 49T(2) applies only to the causation element of direct discrimination and not to the element of "less favourable treatment." This flows from the language of s 49T(1)(a) and (2). Section 49T(2) provides that, for the purposes of s 49T(1)(a), "something is done on the ground of a person's responsibilities as a carer" if it is done on the ground of the relevant characteristic. The phrase "on the ground of" imports causation and picks up the opening words of s 49T(1). There is no warrant in the language of s 49T for applying the characteristics extension to the test of whether the treatment was less favourable.
5. Once it is established that the comparator is a person without carer's responsibilities who can only work part-time, the applicant's case, as pleaded, cannot succeed. Even looking beyond the pleadings, there is no evidence which points to the applicant being treated less favourably than a person without carer's responsibilities would have been treated in the same or similar circumstances.

Causation

1. Having regard to my finding that the applicant was not treated less favourably than the hypothetical comparator, it is not necessary or possible to consider whether one of the grounds for the allegedly less favourable treatment was the applicant's responsibilities as a carer (see Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45]; cf Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [64]). However, if it were necessary to decide, I would not accept the applicant's contention that "Superintendent Whyte set the minimum level of shifts required per six-week roster period (14 x 12 hour shifts) at a level above what he knew or believed the Applicant could meet so she would be compelled to abandon the Rosehill Position and he could secure an officer in the position who would work full-time." The evidence does not support this proposition. Nor would I accept the applicant's submission that "Superintendent McLean set a 17 x 12 hour minimum hours requirement because he knew the Applicant could not meet it." My reasons for rejecting this submission are set out more fully in relation to the victimisation claim.
2. As the parties have made extensive submissions about the application of the "characteristics extension," I make the following remarks about it.

Characteristic of person with responsibilities as a carer

1. Section 49T(2) provided at the relevant time, for the purposes of s 49T(1)(a), that "something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer."
2. The applicant claims that the need to be absent from a person's employment to provide care and support to another person is a characteristic that appertains to or is generally imputed to persons with responsibilities as a carer for young children. She says that this is not a matter about which the Tribunal requires specific evidence, but a societal observation about which the Tribunal may take judicial notice, as the applicant claims was done in Howe v Qantas Airways Ltd [2004] FMCA 242 at [110]-[115]. She also notes that in Reddy v International Cargo Express [2004] NSWADT 218 the Tribunal found at [59] that "[i]t goes without saying that a person with responsibilities as a carer for an infant child will be unable to work full-time unless they can make arrangements for someone else to care for their child while they are at work or their employer allows them to continue caring for their child during work hours."
3. The applicant also submits that the fact that it is a characteristic of carers that they need to be absent from employment to provide support for other people may be inferred from the legislature feeling the need to pass a specific regime concerning carer's responsibilities in the AD Act. The applicant relies on a passage from the second reading speech to the bill introducing that regime in support of that proposition. In addition, the applicant says that this characteristic may be inferred from the terms of the Commissioner's carer's responsibilities guidelines and other policies.
4. The Commissioner submits that there is no evidence that being absent from a person's employment to provide care and support is a characteristic that appertains to or is generally imputed to a person with responsibilities as a carer. He says that it is not such a characteristic. For example, a carer may be unemployed or retired, may choose not to work or may be a volunteer. The Commissioner submits that, in the absence of evidence, this aspect of the claim should be rejected.

Consideration

1. This dispute between the parties raises the question of whether the Tribunal may take "judicial notice" of the circumstance that a characteristic of a carer is that the carer needs to be absent from his or her employment to provide care and support to another person.
2. As set out above, judicial notice was taken of a similar proposition in Reddy v International Cargo Express [2004] NSWADT 218. Moreover, in Correy v St Joseph's Hospital Ltd [2007] NSWADT 104, another case in which the applicant alleged discrimination in employment on the ground of her carer's responsibilities, the Tribunal said at [120] that "[i]t goes without saying that [the applicant's infant] child was both substantially dependent on Ms Correy and in need of her care and support." However, in Stokes v Serco Sodexho Defence Services Pty Ltd [2006] NSWADT 295 at [76], the Tribunal found that it could not take judicial notice "that a substantially higher proportion of people working full time on a permanent roster of day and night shifts Monday to Sunday without carer responsibilities for a school age child can or do comply with changes to a roster which require them to do all day shifts on weekdays than can people with carer responsibilities for a school age child." The Tribunal noted "the wide variety of obligations which people without carer responsibilities for school age children may have, including second jobs, study, and aged parents."
3. In Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16, the Tribunal identified the requirements applicable to a senior constable who was a single parent with responsibilities as a carer as being "to attend work in accordance with the roster that is posted or current on a particular day". The senior constable submitted that the Tribunal was entitled to take judicial notice of the circumstance that single parents are less able to comply with such requirements than those who are not single parents. The Tribunal responded as follows at [90]: "90 At common law judicial notice may be taken of 'facts, which a judge can be called upon to receive and to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer: Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191, 212 (Sumner LJ). For example, in Waters v Public Transport Corporation (1991) 173 CLR 349, the proceedings were conducted on the basis that the introduction of scratch tickets and driver-only trams in Melbourne involved the imposition of a requirement or condition with which a substantially higher proportion of unimpaired persons can or do comply than do impaired persons. Judicial notice was also taken of the fact that women are substantially less likely than men to be able to comply with a requirement to work full time in Hickie v Hunt & Hunt [1998] HREOCA 8; (1998) EOC 92-910."
4. The Tribunal found that it could take judicial notice of the fact that "a small percentage of police officers are not able to comply with the requirement to attend work as rostered" because this was "common knowledge, and not reasonably open to question" (at [93]). However, it also found that "the proportion of people in that category with and without carer's responsibilities or who are or are not single parents, is not common knowledge" and it could therefore not take judicial notice of the proposition put forward by the senior constable.
5. On appeal, in Wright v Commissioner of Police [2014] NSWCATAP 67, the Appeal Panel said at [64]: "The grounds of appeal also criticised the Tribunal for its ruling that it was not open to it in analysing the case on this basis to take 'judicial notice' of certain matters and find them as facts, in this instance the difficulties that a sole parent has in providing care as distinct from one who has a supportive partner. We will not deal with this point at length. In our view this is a matter that should be the subject of evidence, and we agree with the reservations expressed in another context on lightly taking judicial notice of matters: see Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 at [94]-[95] per Beazley ACJ (reversed in the High Court but not on this aspect, NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11)."
6. On the need for caution when taking judicial notice of facts in anti-discrimination matters, see also State of New South Wales (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [67]-[74] and Walker v State of New South Wales [2003] NSWADT 13 at [45]-[46].
7. In Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145, Beazley ACJ said at [94] that in Thomas v Mowbray (2007) 233 CLR 307, Heydon J had observed that: "the common law doctrine of judicial notice was narrow and itself involved two categories. The first was where judicial notice was taken of facts, without inquiry. Such facts had to be "open and notorious". As to the second, where judicial notice was taken of facts after inquiry, the inquiry was to be based on the 'common knowledge of educated [persons]' as revealed in 'accepted writings', 'standard works' and 'serious studies and inquiries': Australian Communist Party v Commonwealth [1951] HCA 5; 83 CLR 1 at 196. See also Holland v Jones [1917] HCA 26; 23 CLR 149 at 153, where judicial notice was described in similar terms. Reference to a medical text is an example of an inquiry that may be made for the purposes of the second type of judicial notice: see Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283-284. Heydon J concluded, at [619], that 'matters judicially noticed at common law must be indisputable'."
8. It is the first of these categories which is relevant in the present case: taking judicial notice of facts which are "open and notorious" without inquiry.
9. The terms of the Tribunal's statute are also relevant to its powers to take "judicial notice" of a matter. The Tribunal "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (Civil and Administrative Tribunal Act, s 38(2)). Thus, providing that it does so consistently with the rules of procedural fairness, it may "inform itself" by taking judicial notice of open and notorious facts.
10. It may be "open and notorious" that a person with carer's responsibilities is "unable to work full-time unless they can make arrangements for someone else to care for their child while they are at work" (as in Reddy). However, it is not, I consider, "open and notorious" that the need to be absent from a person's employment to provide care and support to another person is a characteristic that appertains to or is generally imputed to persons with responsibilities as a carer for young children. This is because such persons may be able to (and frequently do) make the arrangements referred to in Reddy. In light of the decisions in Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 and Wright v Commissioner of Police [2014] NSWCATAP 67, I do not consider that it is open to the Tribunal to take judicial notice of that proposition as if it were a fact.
11. I do not consider that a characteristic of a carer may be inferred from the insertion of Part 4B of the AD Act, the second reading speech or the terms of the Commissioner's carer's responsibilities guidelines and other policies. It would be very unusual to infer a fact from the amendment of an Act or from a second reading speech and there is no warrant for doing so in the circumstances of this case. The Commissioner's policies provide no basis for drawing an inference as to a characteristic of carers generally.

Direct Discrimination: conclusion

1. For the reasons given above, the applicant has not established that the Commissioner directly discriminated against her on the ground of her responsibilities as a carer within ss 49T(1)(a) and 49V(2) of the AD Act and her direct discrimination claim must be dismissed.

INDIRECT DISCRIMINATION

1. The applicant also claims, in the alternative, that the Commissioner indirectly discriminated against her by imposing unreasonable requirements or conditions with which she was unable to comply. She alleges that he did this in circumstances where a substantially higher proportion of people without carer's responsibilities complied or were able to comply with the requirements or conditions than those without such responsibilities.
2. The applicant initially pleaded that the imposition of the Rosehill Condition and the Campsie Condition was a form of indirect discrimination, but withdrew this allegation towards the end of the hearing.
3. The applicant pleads and continues to maintain that the Commissioner imposed: 1. the requirement or condition on the appointment of an officer to the Rosehill Position that the appointment be a full time appointment (referred to by the applicant as the "Rosehill Appointment Requirement"); 2. the requirement or condition that in order to take up a promotion to the Rosehill Position as of right an officer had to work full time (referred to by the applicant as the "Rosehill FT Requirement"); 3. the requirement or condition on the appointment of an officer to the Campsie Position that the appointment be a full time appointment (referred to by the applicant as the "Campsie Appointment Requirement"); 4. the requirement or condition that in order to take up a promotion to the Campsie Position as of right an officer had to work full time (referred to by the applicant as the "Campsie FT Requirement"); 5. the requirement or condition on all promotional opportunities for appointment to the rank of Sergeant over 2012 and 2013 that "all vacancies are full time" (which the applicant describes as the "Full Time Position Requirement"); and 6. the requirement or condition that all appointments to vacant promotional positions for the position of Sergeant, Team Leader, General Duties in a Local Area Command over 2012 and 2013 were "on a full time basis" (which the applicant describes as the "General Appointment Requirement"), 7. (collectively, the "Indirect Discrimination Requirements").
4. In her submissions, the applicant contends that the Commissioner imposed these requirements or conditions through the Business Rules. In essence, the applicant submits that the Business Rules impose requirements or conditions for sergeant positions to be advertised and taken up (initially at least) on a full time basis, and complains about the particular application of those rules to the Rosehill and Campsie positions.
5. It is the respondent's position that the applicant's submissions invite the Tribunal to determine questions which do not arise in her complaints to the ADB. The respondent maintains that the Tribunal is concerned only with whether the applicant was discriminated against in her employment and it is not concerned with systems and processes generally.
6. It is convenient to deal with this issue before proceeding to deal with the substance of the indirect discrimination claim.

Scope of Complaints

1. The Tribunal's jurisdiction is confined to the complaint or complaints properly referred by the President of the ADB under the AD Act (see, for example, Commissioner of Police, NSW Police Force v Butcher [2011] NSWADTAP 9 at [9], [12], [17]; Salama v Qantas Airways Ltd [2002] NSWADT 119 at [16]).
2. The Commissioner has submitted that it follows that: "The matter is not an inquiry into the operation of the 'Police promotions system'. The matter is not concerned with the Applicant's attempts to be promoted generally. The matter is not concerned with whether the promotions system denies access or limits access to opportunities to promotion for police officers with responsibilities as a carer."
3. The Commissioner expressed the view that, in alleging that eight separate requirements or conditions were imposed on the applicant, the applicant's pleading goes well beyond the First and Second Complaints referred by the ADB. The Commissioner submitted that the Tribunal's jurisdiction was limited to the questions of: 1. whether, under the Act, the Commissioner discriminated against the Applicant on the grounds of carer's responsibilities either in relation to the events at Rosehill LAC between 28 March 2013 to 26 April 2013, or Campsie LAC between 28 May 2013 and 2 August 2013; and 2. whether, under the Act, the Commissioner subjected the Applicant to victimisation on the grounds that she had made a complaint regarding her treatment at Rosehill LAC, between 28 May 2013 and 2 August 2013.
4. When questioned by the Tribunal about these submissions, Ms Eastman SC, for the Commissioner, responded that the proceedings are focused on what has happened to this particular applicant. The Commissioner's argument is that the way in which the applicant puts the indirect discrimination claim in relation to policies generally or advertising generally of all positions for all sergeants is a step beyond what has occurred to the applicant. The Commissioner takes the view that the Tribunal does not have jurisdiction to undertake a general enquiry as to the promotion system within the police force.
5. In response, Ms Ronalds SC, for the applicant, said that the Commissioner's submissions mischaracterise the pleadings. Ms Ronalds SC contends that the applicant's case is that the Business Rules applied to her and that for the Tribunal to appreciate how they applied to her it is necessary to look at how those rules operate.
6. In my view, the applicant's complaints to the ADB alleged a form of systemic discrimination, referable to a system of offering all promotional positions on a full-time basis.
7. The complaint the applicant made on 24 April 2013, referred to the ADT by the President of the ADB, states that the discrimination "began on 16/4/13 and is ongoing." The complaint identifies that all promotional positions are offered on a full-time basis. After setting out her understanding of the facts concerning the offer of the Rosehill position and the negotiations about the applicant undertaking it on a part-time basis, the applicant wrote: "I don't feel that any of this is fair, nor compliant with policy or anti-discrimination laws. I have been continually reminded that the position is full time, and they can't accommodate my hours - if that is the case, HOW WILL I EVER GET A PROMOTION? And how is this fair??? This also goes against the NSWPF corporate plan, to "Actively support and develop women for senior management" and the NSWPF strategic plan for women, which purpose is "To improve the requitment [sic], retention, development and promotion of women in the NSW Police force…" Ultimately I wish to be afforded the right to equal and fair merit-based promotion and my entitlement arrangements for carer's responsibilities be met. The whole process has caused me a great deal of stress and I have felt bullied to withdraw from the promotion I have earned. And I feel disheartened that because of my carers responsibilities, I will never be promoted within the NSWPF. Also, to note during this process, I have missed out on the opportunity for other promotional positions as my acceptance of the promotion has meant I can't apply for any other advertised positions."
8. This complaint concerns both the particular decision not to offer the applicant the Rosehill position with the hours she requested, and also systemic issues in the promotional system. Whilst the identification of the complaint beginning on 16 April 2013 might suggest that it is limited to the particular circumstances at Rosehill, there are other indications that the complaint is broader. The applicant's identification of the practice of offering all promotional positions on a full-time basis, her rhetorical question "How will I ever get a promotion?," her expressed concern that she will never get a promotion within the NSW Police Force and her complaint that by accepting the Rosehill position she has missed out on other positions, point to a broader complaint about the operation of the promotions system.
9. However, if I am wrong and this complaint is limited to the events concerning the Rosehill position, the applicant's second complaint clearly identifies systemic issues as being part of its subject.
10. On 2 August 2013, the applicant made two further complaints. She identified the person who discriminated against her as being Superintendent McLean. The complaint refers, by way of background, to the Rosehill promotional position being offered on a full-time basis "like all the Sergeant promotional positions offered in 2013 to date." After setting out her account of the circumstances in which she was offered, then withdrew from, the Campsie position, the applicant wrote: "Offering sergeant promotional positions only on a full-time basis makes a mockery of the objectives expressed in the NSW Police Force Corporate Plan, and the Strategic Plan for Women, which both have the objective of improving the recruitment, retention, development and promotion of women in the NSW Police Force. It is not reasonable for all the positions for Sergeant Team Leaders in metropolitan LACs to be offered only on the basis that they are full-time positions. A majority of persons without carer's responsibilities are able to comply with the requirement to work full-time, and I as a mother of three young children simply could not."
11. The remainder of the applicant's complaint clearly identifies one form of the alleged discrimination as being that the Commissioner only offered sergeant promotional positions on a full-time basis.
12. Accordingly, the Tribunal has jurisdiction to consider the applicant's indirect discrimination claim insofar as it alleges that the applicant was subject the Full Time Position Requirement and the General Appointment Requirement, in the periods covered by each complaint.

Applicant's failure to plead that s 49V applied to the conduct the subject of the indirect discrimination claim

1. The applicant's only pleading concerning the application of s 49V(2) is that the Rosehill and Campsie Conditions were "unlawful discrimination in breach of ss 49V(2)(a), (b) and (d)." This claim is made under the heading "Direct Discrimination". No allegation in relation to the application of s 49V(2) is made in the context of the applicant's pleading of the indirect discrimination claim. There is no pleading that the systemic issues the applicant has identified - namely, advertising all promotional positions as full-time positions and requiring applicants to accept them on a full-time basis - were captured by s 49V(2)(a), (b) or (d) or any other substantive provision of the AD Act.
2. The applicant's failure to address the application of s 49V to her indirect discrimination claim in her submissions (but not in her pleadings) was brought to her counsel's attention on the final day of hearing.
3. The context in which this exchange between the Tribunal and the applicant's counsel arose is as follows. This matter was set down for two weeks of hearing. It became apparent in the first week that that amount of time would not be needed. It was agreed between the Tribunal and the parties that the most effective use of the remaining time, once the evidence had concluded, would be for the parties to file written submissions by the Wednesday of the second week, then for the Tribunal to reconvene the following day for a half day hearing at which the Tribunal could ask the parties' counsel questions arising from the submissions and clarify any matters which were unclear.
4. In her submissions filed in the second week of hearing, the applicant submitted under the heading "Indirect Discrimination" that, if one reads s 49T(1)(b) and s 49V(2) together, the applicant is required to establish a number of elements, including that the identified requirement or condition "denied the applicant access, or limited the applicant's access, to opportunities for promotion, discriminated against her in the terms or conditions of her employment, or caused her to suffer a detriment." Nothing else was said in those submissions about the application of s 49V(2) to the indirect discrimination claim. The applicant deals with the application of s 49V(2)(b) mainly in one paragraph of those submissions under the heading "Direct Discrimination", and there claims only that it is by imposing the Rosehill and Campsie Conditions that the Commissioner denied or limited her access to promotional opportunities.
5. On the final day of the hearing, the Tribunal raised with the applicant's counsel, Ms Ronalds SC, that the applicant did not appear to have addressed the application of s 49V(2) in her submissions in respect of the indirect discrimination claim, other than in relation to the Rosehill and Campsie Conditions, which she was no longer pressing in this context. Ms Ronalds SC described this as "a defect arising from haste rather than abandonment" and indicated that the applicant would say that the same matters arise in the indirect discrimination claim as the direct discrimination claim. The Tribunal commented that there would be some differences, because the indirect discrimination claim was dealing with different conditions. Ms Ronalds SC undertook to address this in her reply submissions and did so.
6. The circumstance that the applicant had not pleaded the application of s 49V(2) or any other substantive provision to the indirect discrimination claim was not brought to the Tribunal's attention.
7. There is a question as to whether the Tribunal is required to find, or otherwise should find, that the indirect discrimination complaint has not been made out, because the applicant has not pleaded that s 49V(2) or any other substantive provision applies in this context.
8. In Whiteoak v New South Wales [2014] NSWCATAD 45, a case concerning a claim of racial discrimination, the respondent argued that the applicant, who had amended his pleadings on a number of occasions, was in effect departing from his pleaded case in his submissions. The Tribunal determined not to allow the applicant to depart from the pleadings, making the following comments (at [36] and [37]): "[36] The matter has proceeded by way of pleadings. Mr Whiteoak has filed Further Amended Points of Claim to identify his case and the Respondent has put on Points of Defence, called evidence and made submissions based upon the case so identified. The proceedings have been the subject of application for summary dismissal, three interlocutory applications concerning the form and amendment of the Points of Claim, a three day hearing and two half-days of submissions. Additionally, the affidavit evidence and the tendered documentary material run to well over 1,000 pages. Both parties are represented by experienced counsel and instructing solicitors. The Tribunal would expect that significant thought and preparation has gone into the running of the case based upon the pleadings. [37] The Applicant has had adequate opportunity to settle the form of his pleading. The Respondent is entitled to meet the case as pleaded. In the Tribunal's view, it would be unfair upon the Respondent to allow the Applicant to depart from his case on the pleadings by reason of the way in which any submissions are put: see UTSA Pty Ltd (in liq) v Ultra Tune Australia Pty Ltd (1996) 21 ACSR 457 at 459. The Tribunal will approach the matter on the basis of the parties' cases as pleaded."
9. This case has some similarities to Whiteoak. At the time of hearing, it had been just under a year and a half since the application was lodged in the Tribunal. The applicant was given an opportunity to file points of claim, which she did on 23 May 2014, and to file amended points of claim, which she did on 19 August 2014. On both occasions, she was represented by solicitors. There was then a period of about eight months before the hearing, in which she could have sought to further amend her pleading. The affidavit evidence in the case is substantial. A lengthy hearing was held at which the applicant was represented by solicitors and junior and senior counsel. At the end of the hearing, as outlined above, her counsel was alerted to the failure to consider the application of s 49V(2) to the indirect discrimination claim in the submissions. Notwithstanding this, no application was made by the applicant for a further opportunity to amend the pleadings. As in Whiteoak, the applicant has had an adequate opportunity to settle the form of pleading.
10. One of the advantages of pleadings is that they require a party to identify his or her case with precision. In the absence of a pleading concerning the application of s 49V(2) to the indirect discrimination claim, it is difficult to know exactly what the applicant's case is. At one point in her submissions she identifies the relevant "employment" for the purposes of s 49V(2)(a) as her employment in the promotional positions; but then she submits that the alleged requirements were requirements with which she had to comply if she was going to be appointed to either promotional position. This latter submission suggests that her "employment" is the position she occupied at the time of being offered the promotional positions. Further, for the purposes of s 49V(2)(b) it appears that the "employment" she is relying upon is employment in her current position. In the absence of pleadings, these apparent inconsistencies in the submissions make it difficult for the respondent to know the case he has to meet.
11. The Tribunal has a broad power to determine its own procedure (Civil and Administrative Tribunal Act, s 38(1)), which it has done by requiring the filing of points of claim and points of defence. It may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (Civil and Administrative Tribunal Act, s 38(2)). If it were not for the Tribunal's invitation to the applicant's counsel to address the application of s 49V(2) to the indirect discrimination claim in her reply submissions, and her acceptance of that invitation, it is doubtful that it would be consistent with the rules of procedural fairness for the Tribunal to consider whether the applicant's indirect discrimination claim attracted the operation of s 49V(2), or any other substantive provision, other than in the ways pleaded.
12. As a general proposition, where the Tribunal chooses to direct the parties to file pleadings, the Tribunal is required to determine the case according to the pleadings, unless it indicates to the parties that it proposes to decide the case on another basis and gives the parties an opportunity to make submissions about this course. Mason CJ and Gaudron J have commented in the context of civil litigation that pleadings ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and a case should only be decided on another basis if the parties choose some different basis for the determination of their respective rights and liabilities (Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279, Mason CJ and Gaudron J at 286-287).
13. The question is whether a different basis was adopted by the parties which would justify the Tribunal in deciding the case on the basis of matters raised in the applicant's reply submissions.
14. When the Tribunal invited the applicant's counsel to make written submissions about the application of s 49V(2) to the indirect discrimination case, the parties' cases were effectively completed, but for the making of limited oral submissions and the filing of reply submissions. The respondent did not object at the hearing to the applicant filing reply submissions concerning the application of s 49V(2) to the indirect discrimination claim. However, in his submissions, replying to the applicant's reply submissions, the Commissioner commented that the applicant's reply submissions "appear to be a further attempt to recast the Applicant's claim" and also that the applicant "did not address how s 49V(2) of the Anti-Discrimination Act 1977 (NSW) (the Act) applied to her claim in the Amended Points of Claim." This might be taken to be some form of objection to the way the applicant put her claim in the reply submissions. At the same time, it is to be noted that the Commissioner did not submit that the Tribunal was not entitled to consider the applicant's submissions concerning the application of s 49V(2) to her indirect discrimination claim and that he addressed the applicant's reply submissions on this matter in his own reply submissions.
15. On balance, I consider that the parties did conduct the proceedings on a different basis from that set out in the pleadings, by addressing the application of s 49V(2) to the indirect discrimination claim in their submissions, in circumstances where the respondent's counsel did not object to this proposed departure from the pleadings on the final day of the hearing. Accordingly, the Tribunal is entitled to consider the application of s 49V(2) to the indirect discrimination claim, notwithstanding the absence of a pleading on the matter.

Application of s 49V(2) to the indirect discrimination claim

1. In her reply submissions, the applicant submits that, if the Tribunal accepts that the applicant has been discriminated against by the imposition of any of the Indirect Discrimination Requirements, the Tribunal would readily accept that the imposition of each condition had the effect of denying or limiting the applicant's access to promotional opportunities contrary to s 49V(2)(b) of the AD Act. The applicant also submitted that the Tribunal would accept that each of those requirements or conditions are terms and conditions of employment and constitute a detriment to the applicant within s 49V(2)(a) and (d) respectively.

Terms and conditions of employment: s 49V(2)(a)

1. In her reply submissions, the applicant contended that the Indirect Discrimination Requirements were terms or conditions of her employment. Relying upon the passage from Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 55, approved in New South Wales v Amery (2006) 230 CLR 174 and quoted earlier in these reasons, she said that her "actual employment" was the appointment of a police officer as a sergeant, general duties supervisor. Further, she submitted that the "foundation" of that employment derived from the Full Time Position Requirement and that both that requirement and the General Appointment Requirement manifested themselves in the other Indirect Discrimination Requirements. Using the language from Anstee, she said that each of these requirements were "demands and requirements" with which she had to comply if she was going to be appointed to either of the Rosehill or the Campsie positions.
2. The Commissioner submitted that the applicant conflates and interchanges "terms and conditions of employment" in s 49V(2)(a) with "requirement or condition" in s 49T(1)(b). He says that this is not permissible, relying upon cases such as McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 2211 at [35] and Waters v Public Transport Corporation (1991) 173 CLR 349, Dawson and Toohey JJ at 394.
3. The Commissioner also submitted that the applicant's reference to Amery was incomplete and taken out of context. The Commissioner relied upon the remarks made by Gummow, Hayne and Crennan JJ in that case at 196 [69], quoted above in my discussion of s 49V(2)(a) in relation to the direct discrimination claim.

Consideration

1. As indicated earlier in these reasons, it is my view that the applicant's employment for the purposes of s 49V(2)(a) was employment as a constable. Essentially for the reasons given in relation to the direct discrimination claim, I do not accept that any of the alleged requirements are terms or conditions of employment that the Commissioner afforded the applicant within s 49V(2)(a). That is, the Indirect Discrimination Requirements were not terms or conditions of her current employment; rather they were matters affecting applications for promotion or future employment, and were not within the ambit of s 49V(2)(a).
2. If I am wrong and the Commissioner "afforded" the applicant the terms and conditions of the Rosehill and Campsie positions at the time she accepted those positions (prior to withdrawing from them), then the Indirect Discrimination Requirements, as framed by the applicant, were not terms or conditions of her employment in the promotional positions. A term or condition of the Rosehill and Campsie positions, at the time of acceptance of each of those positions, was that the applicant work full-time. Another term or condition was the right to negotiate for a flexible working agreement. The Indirect Discrimination Requirements are all framed in terms which are concerned with the person's appointment to or acceptance of the relevant position; none of them describe a term or condition of the "actual employment," once accepted.

Promotional opportunities: s 49V(2)(b)

1. In support of her claim that s 49V(2)(b) applies, the applicant submitted that the Indirect Discrimination Requirements were not merely aspects of the employment landscape that operated in a neutral or theoretical way upon her She said that the first two of these requirements applied to the Rosehill and Campsie positions. Further, in the applicant's submission, none of these requirements and/or conditions was required by the promotional scheme established under the Police Act and Police Regulation.
2. The applicant submitted that the practical effect of the Full Time Position Requirement and the General Appointment Requirement is that an applicant can only accept a promotion if he or she is prepared to discontinue any current part-time working arrangement, accept the promotion on a full-time basis then negotiate something different. For this contention, she relies upon an email written by Superintendent Chris Clark, the Commander of the Workforce Management, Human Resources, to Assistant Commissioner Carmine Mennilli, which is reproduced in an email sent by Chief Inspector Maxwell to Superintendents McLean and Whyte on 30 May 2013. She also relies on the evidence of Karen Hardy of the Workplace Relations and Equity Unit and that of Inspector Norton.
3. An arrangement other than a full-time work arrangement on a promotion is, in the applicant's submission, within the sole discretion of the relevant Commander. The applicant says, further, that the evidence establishes that the Promotions Unit did not make enquiries of the relevant Commander to see if the position could be advertised with reference to an ability to accommodate a person working on a part-time basis. In practical terms, the applicant submits, this meant that the applicant had to nominate for positions on the Sergeant Vacancy List without knowing whether a part-time work arrangement could be accommodated in any of the positions and, if so, on what terms.
4. The applicant submitted that all of the requirements or conditions relied upon operated, in practical terms, to deny or limit her opportunity to be promoted to the Rosehill or Campsie positions. She submitted further that the Full Time Position Requirement, the General Appointment Requirement, the Rosehill Appointment Requirement and the Campsie Appointment Requirement operated to deny or limit her opportunities to be promoted to other positions. This is because the applicant would not have known whether other positions could have accommodated a part-time sergeant and, if so, the parameters in which such a sergeant could be accommodated.
5. The Commissioner submits that the applicant's submissions about the "opportunity for promotion" are contradictory and confusing. It is said on his behalf that the applicant's promotion to either the Rosehill or Campsie positions was not in fact limited to a promotion on a full-time basis and she was never required to perform duties on a full-time basis. He submits that she had the opportunity to negotiate a part-time work arrangement in each command and availed herself of that opportunity both times. The Commissioner submits that the applicant is effectively inviting the Tribunal to determine a hypothetical denial or limitation of promotion based on a Commander at some other LAC requiring the Applicant to work full-time.
6. Insofar as the requirement that the applicant set out preferences for promotional positions each month, of which she may only be offered one, is a "limit," the Commissioner says that the applicant has not established that it is discriminatory.

Consideration

1. I accept the applicant's submission that the advertisement of promotional positions as full-time, and the requirement that a promotional position be accepted on a full-time basis, were not policies required by legislation, but were rather policies or practices adopted by the Commissioner. I also broadly accept her submission that, in accordance with the policies and practices adopted by the Commissioner, an applicant for promotion can only accept a promotion if he or she is prepared to discontinue any current part-time working arrangement, accept the promotion on a full-time basis then negotiate something different. Further, I accept that each Commander has a broad discretion (subject of course, to compliance with anti-discrimination laws) as to negotiating alternative work arrangements.
2. One of the applicant's allegations is that the Commissioner discriminated against her by imposing the Full Time Position Requirement (which she describes as the requirement on all promotional opportunities for appointment to the rank of Sergeant that all vacancies are full time). For reasons developed below, I do not accept that the Full Time Position Requirement is in fact a "condition" or "requirement." However, the applicant is not required to establish, for the purposes of s 49V(2)(b), that the Commissioner has imposed a condition or requirement upon her.
3. I am satisfied that the Commissioner's practice of offering all promotional opportunities to the rank of sergeant on a full-time basis in the complaint periods limited the applicant's access to promotional opportunities. Her access was limited because she did not know which promotional opportunities were more likely to be available on a part-time basis in fact, and so did not know to preference those opportunities highly (thus increasing her chance of being offered a promotion she could accept). Her access to such opportunities was also limited in that the Full Time Position Requirement was the status quo from which negotiations about part-time work agreements began, which made it difficult for the applicant to achieve a part-time work agreement which was consistent with her carer's responsibilities. I am also satisfied that the applicant has adequately described this practice in her submissions by referring to the imposition of the Full Time Position Requirement, even though it is not strictly a requirement with which the applicant had to comply. The respondent had sufficient notice of this aspect of the applicant's case to respond adequately to it.
4. The applicant also claims that the Commissioner denied or limited her access to promotional opportunities by imposing the General Appointment Requirement (that is, the requirement that all appointments to promotional positions as Sergeant, Team Leader, General Duties were on a full time basis), which she says was manifested in the Rosehill and Campsie Appointment Requirements. Whilst not accepting that the General Appointment Requirement is properly described as a requirement with which the applicant had to comply, for similar reasons to those given in relation to the Full Time Position Requirement, I am satisfied that the applicant's access to promotional opportunities was limited by the Commissioner's practice of requiring candidates to accept promotional positions on a full-time basis to negotiate any part-time work agreement after such acceptance.
5. I also find that the Rosehill and Campsie Appointment Requirements (that the appointment to each position be full time) limited the applicant's access to promotional opportunities, notwithstanding that she would not, in fact, have had to accept either position on a full-time basis. This is because these requirements operated as a starting point for negotiations, the norm from which the applicant had to persuade each Commander to depart.
6. For similar reasons, I find that the Rosehill FT Requirement and Campsie FT Requirement limited or denied the applicant's access to the promotional opportunities at Rosehill and Campsie. Those are the requirements that, in order to take up a promotion to those positions as of right, an officer had to work full time. The Commissioner's practice of requiring successful candidates to accept sergeant's positions on a full time basis then negotiate a part-time work agreement, which manifested itself in relation to the applicant at Rosehill and Campsie, limited her access to those promotional positions by creating a very short period in which she could negotiate a part-time work agreement without relinquishing her existing part-time work arrangement, and reinforcing that the norm was full-time work from which departure had to be justified.

Conclusion concerning application of s 49V(2)(b)

1. It follows that the applicant has established that her access to promotional opportunities was limited or denied, within s 49V(2)(b), by practices of the Commissioner which are broadly described by the Indirect Discrimination Requirements.

Subjecting the employee to a detriment: s 49V(2)(d)

1. The applicant also submitted that the imposition of each of the Indirect Discrimination Requirements amounts to a "detriment" within s 49V(2)(d). The detriment is expressed to be that the applicant had to nominate preferences for a full-time appointment, without knowing whether the relevant Commander would accommodate a part-time work agreement and, if so, on what terms.
2. As the applicant has established that s 49V(2)(b) applied to her circumstances, it is not necessary to consider the application of s 49V(2)(d).

Requirement or condition

1. The applicant claims, and the respondent denies, that each of the Indirect Discrimination Requirements is a "requirement" or "condition" within s 49T of the AD Act.
2. Both parties have acknowledged that the relevant requirement or condition must be identified with some precision (Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165, Dawson J at 185, and Waters v Public Transport Corporation (1991) 173 CLR 349, McHugh J at 406). The applicant submitted that the concept of a "requirement or condition" in discrimination legislation should be given a broad rather than a technical meaning.
3. The applicant contends that each of the Full Time Position Requirement, the General Appointment Requirement, the Rosehill Appointment Requirement and the Campsie Appointment Requirement is a "stipulation which must be satisfied if there is to be a practical (and not merely a theoretical) chance of selection," to adopt the test from Secretary for Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 257-258. She says that the Rosehill FT Requirement and the Campsie FT Requirement derive from the earlier listed requirements and need not be separately considered. The applicant also contends that the Business Rules render appointment on a full time basis an essential part of, or a prerequisite to, securing an opportunity for promotion to the rank of Sergeant, to adopt the test from Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987.
4. The applicant points out that there is no legislative requirement that appointments to vacant positions be made on a full time basis. She says that it is the Commissioner who has determined to require all vacancies for all ranks advertised to the promotion lists to be advertised as full time positions and for all promotional appointments to be full time appointments.
5. The Commissioner says that it is not enough to merely identify a requirement or condition as the applicant has done; she must show that the Commissioner imposed those requirements on her and others. The Commissioner submits that advertising and/or offering sergeants' positions as full time or requiring applicants to accept a full-time position are not requirements or conditions which were imposed on the applicant. The Commissioner says that these complaints are directed either to the operation of the Police Act or the Business Rules rather than a requirement imposed on the applicant.
6. The Commissioner also submits that the applicant was never required to work in either of the promotional positions full-time, as both Commanders offered her a part-time work arrangement, so that the applicant's claim has no factual basis.

Consideration

1. The relevant question is whether the Commissioner has required the applicant "to comply with a requirement or condition."
2. The language used by the applicant in her pleadings does not reflect the language of s 49T(1)(b) in that the applicant does not plead that the Commissioner required her to comply with the Indirect Discrimination Requirements; rather she pleads that the Commissioner "indirectly discriminated against her on the ground of her responsibilities as a carer" by imposing certain requirements or conditions. By pleading in this way, the applicant loses sight of the need to establish that the requirement operated directly on her (that she was required to comply with it). For example, she pleads that the Commissioner "indirectly discriminated against her on the ground of her responsibilities as a carer" by "imposing the requirement or condition on all promotional opportunities for appointment to the rank of Sergeant over 2012 and 2013 that 'all vacancies are full time'" (that is, the Full Time Position Requirement). Each of the so-called "requirements" is pleaded without reference to its effect on the applicant, except insofar as she is claimed to be the subject of indirect discrimination.
3. The applicant has not discharged the onus of establishing that the Commissioner required her to comply with the Full Time Position Requirement. As expressed in the applicant's pleadings, it is not a condition or requirement with which the applicant was required to comply. The expression "the requirement on all promotional opportunities," which the applicant uses in her pleadings to describe the Full Time Position Requirement, might perhaps mean "the requirement placed upon all promotional opportunities." But a requirement operates, generally, upon people or conduct. A situation where "all vacancies are full time" is not, in ordinary language, a "requirement." I am not satisfied that it is a requirement or condition at all. Even if it were, the positions the applicant was offered were both offered to her on a part-time basis. She was not required to comply with a requirement that she work full-time in the promotional positions offered to her.
4. Nor has the applicant persuaded me that the Commissioner required her to comply with a requirement or condition that all appointments to vacant promotional positions for the position of Sergeant, Team Leader, General Duties in a Local Area Command over 2012 and 2013 were "on a full time basis" (that is, that she was required to comply with the General Appointment Requirement). Again, the General Appointment Requirement is not a "requirement" or "condition." It is rather, as the respondent submitted, a situation or state of affairs. Even if it were a requirement or condition, the evidence does not satisfy me that the applicant would have been appointed to either position on a full-time basis.
5. The parties put forward conflicting views in oral submissions as to whether or not the applicant would have had to accept an appointment to each position on a full-time basis then move to a part-time arrangement (that is, if she had negotiated an acceptable part-time work arrangement or accepted the arrangements offered to her). Having reviewed the evidence, I am not satisfied that the applicant has established that she would have had to accept a full-time appointment to either position. Had she been able to enter into a part-time work agreement within the period in which she negotiated with both commanders, it is more likely than not that she would have been appointed on a part-time basis (or on a full-time basis but with the part-time work agreement in place).
6. The next question is whether the Rosehill Appointment Requirement and/or the Campsie Appointment Requirement were requirements or conditions with which the applicant had to comply. These were described by the applicant as the requirements or conditions on the appointment of an officer to the Rosehill and Campsie Positions that the appointment be a full-time appointment. As I have found above, the applicant was not required to comply with these alleged "requirements or conditions" because, in both cases, she was offered a part-time work arrangement. The evidence does not support the applicant's allegation that Sergeant Whyte set the minimum number of shifts he offered her "at a level above what he knew or believed the Applicant could meet so she would be compelled to abandon the Rosehill Position and he could secure an officer in the position who would work full-time." Nor am I satisfied that Superintendent McLean's offer was a sham, for reasons which I express in relation to the applicant's victimisation complaint.
7. It remains to consider whether the Rosehill FT Requirement and/or the Campsie FT Requirement were requirements or conditions with which the applicant was required to comply. These were the requirements or conditions that in order to take up the Rosehill and Campsie positions as of right, an officer had to work full time.
8. For the reasons given above, the applicant has not persuaded me that she would have had to would in fact have had to "take up" the Rosehill and Campsie positions on a full-time basis. It is clear from the way that the applicant expresses the Rosehill and Campsie Conditions that she is using the expression "take up" in the pleadings to refer to commencing employment in a position, and not to her formal acceptance of the position. I accept that the applicant won both positions on merit and could have taken up both of right on a full-time basis. However, having exercised her right to negotiate a more flexible working arrangement, she became entitled to take up each position "as of right" on the part-time terms offered to her.
9. Even if the applicant's entitlement to commence employment in the promotional positions on a part-time work agreement is not properly described as being "as of right," the alleged requirements -- that in order to take up the Rosehill and Campsie positions as of right, an officer had to work full time - were not "conditions or requirements" with which the applicant had to comply. The only part of these alleged conditions or requirements which is capable of being properly described as such is a requirement or condition that the applicant work full time. However, the applicant accepted both positions on a full-time basis without in fact working full time, and by the time she withdrew her acceptance of each, she had been offered a part-time arrangement (albeit one she was unable to accept). Thus, the applicant was not, in fact, required to work full time, when she accepted the positions and she would not have been required to work full-time had she been able to accept the Commissioner's offers.
10. For these reasons, the applicant has not established that the Commissioner required her to comply with any of the alleged requirements or conditions within the meaning of s 49T(1)(b). Accordingly, her indirect discrimination claim must be dismissed.

Victimisation

1. The applicant pleads that the advice and instruction given by the South West Metropolitan Region to Superintendent McLean, on 28 May 2013, not to permit her to take up the promotion she had won on merit was conduct of the respondent which subjected her to detriment within the meaning of s 50 of the AD Act.
2. The applicant also pleads that, by imposing the Campsie Condition, Superintendent McLean subjected the applicant to a detriment within s 50 of the AD Act. She pleads that, when he imposed the Campsie Condition, he knew that the applicant could not work seventeen twelve-hour shifts in a six week roster period. She also pleads that Superintendent McLean imposed the Campsie Condition because the applicant had: 1. made the Rosehill complaint, being conduct within the meaning of s 50(1)(a) of the AD Act; and/or 2. sent an email to Inspector Shari Allison containing an allegation within s 50(1)(c) of the AD Act; and/or 3. made the complaint to Superintendent McLean in the discussion with him on 29 May 2013 that she believed he was discriminating against her (being an allegation within s 50(1)(c) of the AD Act).
3. As the respondent notes in his submissions, the applicant is no longer pressing her claim in relation to the email to Inspector Allison.

Did the Commissioner subject the applicant to a detriment?

1. The applicant submitted that "detriment" in s 50 has a broad meaning and that "all that is required to constitute a 'detriment' in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter" (Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34]). The applicant also submitted that a "detriment" is to be determined objectively in the sense that the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment (Wright v Commissioner of Police [2014] NSWCATAD 16 at [108]; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41]). I accept these submissions.

Superintendent Whyte's address to regional meeting

1. The applicant alleges in her submissions that Superintendent Whyte's address to the regional meeting concerning the applicant on 2 May 2013 was a form of "institutional detriment" which breached the confidentiality she could rightly expect. In her complaint to the ADB, the applicant describes the detriment as being that Superintendent Whyte's address "result[ed] in a peremptory refusal of any reasonable attempts to secure a part-time work agreement for the Sergeant Team Leader position at Campsie LAC that I had won on merit."
2. It was not pleaded in the Amended Points of Claim that Superintendent Whyte's address to the regional meeting led to a detriment. Further, I am not satisfied that the applicant has established that Superintendent McLean's initial position that he was not required to negotiate a part-time work agreement was a result of, or even partially a result of, Superintendent Whyte's comments at the regional meeting. Superintendent McLean's evidence indicates that this was a position he took because he believed that, having advertised the position as full time, he was entitled to require the successful applicant to work full time.

Advice and/or Instruction given to Superintendent McLean

1. The applicant's first claim of victimisation, as pleaded in her Amended Points of Claim, is that, by "the advice and instruction given to Superintendent McLean to refuse to the Applicant the opportunity to take up the Campsie Position, the Respondent subjected the Applicant to detriment."
2. The email from Chief Inspector Maxwell to Superintendent McLean, in which he states, "Do not accept this officer" is, in the applicant's submission, plainly couched in the language of an instruction and refers not to Chief Inspector Maxwell's view, but to that of the Assistant Commissioner. The applicant submits that the Tribunal should not accept Superintendent McLean's evidence that he did not regard himself as bound by this, pointing out that police officers are required to obey lawful orders from those in authority over them.
3. The applicant further submits that Superintendent McLean's communications with the applicant indicate that he took the Region Commander's view as guiding his actions. She submits that the only point of the Superintendent referring to having "the backing of the Region Commander to have a full time officer in the position" in a telephone discussion with the applicant (a statement which he denies having made) is to convey that pursuing a part-time agreement in his Command would be futile.
4. The Commissioner submits that the allegation that Superintendent McLean was instructed to refuse the applicant for promotion should be rejected for a number of reasons. They include that it was Superintendent McLean who had the responsibility for deciding whether to enter into a part-time working arrangement, that Superintendent McLean's oral evidence fully explained the role that Chief Inspector Maxwell played and that Superintendent McLean did not in fact follow what the applicant alleges to be an "instruction," as he did decide to engage in a negotiation with the applicant over a part-time working arrangement.
5. I am not satisfied that the applicant has substantiated her allegation that the Commissioner subjected the applicant to a detriment by the advice and/or instruction given to Superintendent McLean to refuse to the Applicant the opportunity to take up the Campsie Position.
6. First, I am not persuaded that Superintendent McLean said he had "the backing of the Region Commander to have a full time officer in the position" in his discussion with the applicant on 29 May 2013 (the day after he received Chief Inspector Maxwell's email). His contemporaneous file note, which states that he said he "had a supporting view at region that the job be filled on a fulltime basis," is more likely to accurately record what was said, given the time that it was written. In any event, what was said in this conversation does not significantly affect my conclusion.
7. Whilst Chief Inspector Maxwell's words may have been "couched in the language of an instruction," as the applicant submits, I accept the Commissioner's submission that Superintendent McLean did not interpret them as communicating an instruction. Chief Inspector Maxwell was Superintendent McLean's subordinate and Superintendent McLean had the authority to determine whether to enter into a part-time work agreement with the applicant and, if so, on what terms. Whilst the email indicates that Chief Inspector Maxwell had the Region Commander's support, I accept that Superintendent McLean did not read the email as conveying a command from the Region Commander.
8. Superintendent McLean's initial view was that he had advertised the position as a full-time position and was not required to fill it on a part-time basis. Before he received Chief Inspector Maxwell's email, he had already emailed Inspector Wallace with the words, ""No mate, must be full-time" and had sent an email to Chief Inspector Maxwell informing him: "I have indicated to Tony Wallace that my position must be filled by a full time officer and he is going to indicate that to her before making a formal offer." Chief Inspector Maxwell's advice did not alter this position. The applicant was not, therefore, as a result of the advice, subjected to a "detriment" as that term is used in s 50 of the AD Act.
9. The applicant submits that the detriment to her was imposed when Superintendent McLean in fact followed the "instruction" contained in Chief Inspector Maxwell's email (that is, not to accept the applicant), because the proposal that the applicant work seventeen twelve-hours shifts was a "sham."
10. The applicant has not established that the offer of seventeen twelve-hour shifts was a sham, or that it was not a genuine opening offer in negotiations for part-time work. The allegation that a senior police officer has engaged in a sham is a very serious one. As the respondent submitted, a matter of this gravity must be established in accordance with the principles espoused in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. As Dixon J observed in that case (at 362): "…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
11. The respondent submitted that the allegation that the offer was a "sham" may need to be considered in accordance with Part 8A (particularly 122(d)) of the Police Act, and that it may have disciplinary consequences. In reply, the applicant submitted that, whether the allegation is a serious one or not, she was not contending that Superintendent McLean was engaged in conduct tantamount to fraudulent or criminal conduct.
12. It is not necessary to consider Part 8A of the Police Act in order to recognise that an allegation that a senior police officer engaged in a sham is a serious allegation. I have taken this into account when considering whether the allegation has been proved to my reasonable satisfaction.
13. There were some inconsistencies in Superintendent McLean's evidence which lend some support to the applicant's contention that his offer was a sham. His statement that he decided, after reading emails written by Inspector Wallace and Chief Inspector Maxwell on 30 May 2013, to exclude them from the negotiations, is not borne out by other emails he sent on that day. However, I am satisfied from other evidence he gave that he made that decision over the course of the intervening period between 30 May 2013 and 3 June 2013, as a result of further considering those emails and the conduct of Chief Inspector Maxwell.
14. Superintendent McLean's evidence that it was not until 3 June 2013 that he cast his mind to any legislative requirements, the Police Force's policies around part-time work and carer's responsibilities and understood that he had an obligation to discuss part-time arrangements with the applicant, was not entirely persuasive. He did not explain why it was, on 3 June 2013, that he reversed his previous position that he would not accept a part-time officer. He gave oral evidence that he had always been aware of the contents of the part-time work policy. When pressed in cross examination about whether it was on 3 June 2013 that he had a change of mind and looked at the part-time policy, he replied, "obviously I have changed my mind at some point in that five days" between 30 May 2013 and 3 June 2013. This is a more plausible account of the timing of his change of position, and one I accept.
15. Superintendent McLean's sworn evidence was that he did not know that the applicant was unable to work seventeen shifts, and that he had arrived at this figure based upon the operational needs of the command, after reviewing the block rosters. I accept that he did not know whether the applicant's circumstances had changed since she had rejected the offer made by the Commander of the Rosehill LAC, or whether she could or would now accept more hours than she had previously rejected. Further, the offer of seventeen shifts was expressed to be a "starting point" and whether this meant a starting point for negotiations or a starting point in terms of beginning work at Campsie LAC, is not clear. There is insufficient evidence to conclude that the offer was made in bad faith.
16. Superintendent McLean was candid about wanting a full-time officer in the position and he provided a credible explanation for moving from his initial stance, that he would not negotiate with the applicant about her entering into a part-time work arrangement, to his final position of being prepared to negotiate, at least to some degree. I am not satisfied that the offer he made to the applicant was not genuine.
17. Even if, contrary to my finding, the offer Superintendent McLean made to the applicant was made in the knowledge that she could not accept it, it does not necessarily follow that she was subjected to a detriment by the making of the offer. The offer was made in circumstances where the applicant had accepted a position which was offered on a full-time basis. An offer that the applicant could work seventeen shifts per roster (whether genuine or not), in circumstances where the applicant had formally accepted a position requiring her to work nineteen shifts per roster, did not subject her to a detriment. The question of whether there was any inherent unfairness in a system whereby all promotional positions were advertised on a full-time basis, and whether such a system imposed, in some general way, a detriment upon police officers who were unable to work full-time, is a different issue. As the respondent has pointed out and as the applicant accepts, it is not the Tribunal's function to engage with that issue.
18. In order to constitute a "detriment" within s 50, "the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment" (Sivananthan v Commissioner of Police [2001] NSWADT 44 at [41]). Whilst it was unfortunate that Chief Inspector Maxwell communicated to Superintendent McLean the advice not to accept the applicant on a part-time basis, this did not place her "under a disadvantage as to a matter of substance" (Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34]).

Imposition of Campsie Condition

1. The applicant's second claim of victimisation is that the Commissioner, through Superintendent McLean, subjected her to a detriment by imposing the Campsie Condition upon her.
2. For reasons given above, I am not satisfied, in the circumstances, that the imposition of the Campsie Condition was a "detriment." I accept the respondent's submission that it was, rather, a concession in circumstances where a promotional position had been advertised as being full-time and had been accepted on that basis.

If the applicant was subjected to a detriment, was this on a relevant ground?

1. If I am wrong and the advice or instruction given to Superintendent McLean and/or the imposition of the Campsie Condition subjected the applicant to a detriment, then I am not persuaded that one of the reasons why Superintendent McLean imposed the condition was that the applicant had made the Rosehill Complaint or that she had complained to Superintendent McLean on the telephone that she believed he was discriminating against her.
2. I accept the applicant's submission that the expression "on the grounds of" in s 50 requires the Tribunal to consider whether one of the grounds outlined in s 50(1) of the AD Act was one of the real, genuine or true reasons for the detriment alleged (relying upon Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [36]).
3. The applicant submits that one of the substantial and operative reasons for Superintendent McLean imposing the Campsie Condition on the applicant taking up the promotion to the Campsie Position, is because he knew the applicant could not work seventeen twelve-hour shifts in a six week roster period. That condition was imposed, in her submission, because Superintendent McLean knew the applicant had made the Rosehill complaint, and because she made a complaint in a discussion with Superintendent McLean that she believed he was discriminating against her.
4. The applicant relies on a number of matters in support of a contention that Superintendent McLean was not prepared to accept the applicant working part-time. She points to his quick response to Inspector Wallace's email on 28 May 2013 informing him that the officer who had withdrawn from the Rosehill position was the highest ranking candidate, with the words "No mate, must be full time." She submits that the Tribunal can infer that that reaction "arose at least in part from the Superintendent's awareness that she had made a complaint of unlawful discrimination to the Board."
5. There is very little evidence to support the applicant's claim that Superintendent McLean imposed the Campsie Condition because she had made the Rosehill Complaint or any other complaint. I find that Superintendent McLean's unwillingness to entertain a part-time officer was initially motivated by his belief that he was entitled to have a full-time officer, having advertised for such, and his view that this met the needs of the Campsie LAC. His later preparedness to negotiate was motivated by a perceived need to comply with the Part-Time Work Policy and his decision to take control of what he perceived to be the difficult situation in which he had been placed.
6. I reject the applicant's claim that Superintendent McLean made the offer of the applicant working seventeen shifts per roster on the ground that the applicant complained to him on the telephone that she believed he was discriminating against her. The evidence of both was that the applicant said "where does the line get drawn between running a command and discrimination?" This does not, in my view, amount to a complaint that Superintendent McLean was discriminating against the applicant. It is not clearly an allegation that Superintendent McLean had committed an act which would amount to a contravention of the AD Act within s 50(1)(c) of that Act or any other paragraph in s 50(1). Even if it is such an allegation, the evidence does not persuade me that his offer of a part-time work agreement of seventeen shifts per roster cycle had any connection with the words spoken to him on the telephone by the applicant.
7. For these reasons, the applicant has not discharged the onus of establishing the necessary elements of her victimisation complaint and it must be dismissed.

Costs

1. On the final day of the hearing, the parties foreshadowed that they may wish to apply for costs. The Tribunal indicated that it would deal with any application for costs after its decision had been handed down.
2. If either party wishes to make an application for costs, that party is to make that application within 28 days of the date of this decision. The Tribunal will then list the matter for directions for the purposes of setting a timetable for each party to make submissions as to costs.

ORDERS

1. I make the following orders: 1. The applicant's complaints of discrimination and victimisation are dismissed. 2. Any application for costs is to be made within 28 days of the date of this decision. 3. Following any application for costs, the Registrar is to list the matter for directions for the purposes of setting a timetable to allow each party an opportunity to make submissions as to costs.

PROF JANE GOODMAN-DELAHUNTY, General Member:

1. I respectfully differ from the decision of Senior Member Lucy at [126], [147] [164], [179], [247], [257], [262], [265], [267], [272-275], [277-278], [282-284] and find that the Applicant's claim of victimisation is substantiated. Reasons for the considerations with which I differ are outlined below.
2. I differ with the conclusion in [126] and [277] that the offers made to the Applicant to work fewer hours than a full-time work load were "concessions" and "not terms or conditions of employment afforded to her within s 49V(2)(a)." I find that the offers were terms or conditions of employment afforded the Applicant within s 49V(2)(a)(b) and (d) of the AD Act. Factually, this conclusion is supported by the email from Superintendent Whyte on April 16 2013 stating that the minimum the Rosehill Command could accommodate was 14 shifts per six week, and that the Applicant "has been advised that she will need to withdraw from the position can she not meet this requirement." This conclusion is further supported by the evidence surrounding the requirement at Campsie for "a 34 hour a week arrangement which enables 17 shifts in a six-week period" (discussed below regarding victimisation). Construal of part-time work as a favour from an employer to an employee with carer's responsibilities was explicitly rejected by the Queensland Administrative Decisions Tribunal in Edwards v Hillier & Educang Ltd t/as Forest Lake College (2006) EOC 93-446; [2006] QADT 34.
3. I differ with the conclusion in [179] that it is not an open and notorious fact that persons with responsibilities as a carer for three young children age four years and under need to be absent from their employment to provide care and support for these children. Moreover, the imposition of rigid time requirements outside of core work hours, such as 12-hour shifts as required by the Respondent, increases the difficulties by persons with carer responsibilities in complying with these requirements because child care centres are unlikely to operate more than twelve hours per day. This requirement was acknowledged as potentially problematic in creating indirect discrimination for persons with carer responsibilities in Dubow v Attorney-General's Department [2005] NSWADT 231. The Applicant specified in an email to Superintendent McLean on May 29 2013 that because the day care centre attended by her children was open a maximum of 10.5 hours per day, she had a particular difficulty working a 12-hour shift two days each week when her husband was scheduled for the same 12-hour shift and the children had to attend the day care centre.
4. The present case sits between the Tribunal's prior position on the appropriateness of judicial notice in Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 for people with responsibilities for the care of an infant child, and the Tribunal's prior position in Stokes v Serco Sodexho Defence Services Pty Ltd [2006] NSWADT 295 on the inappropriateness of judicial notice regarding statistical disparities applicable to people with responsibilities for the care of school age children.
5. In Tleyji, the Tribunal held that it was "a truth universally acknowledged that people with responsibilities for the care of a infant child find it difficult to balance their responsibilities to care for their child and work, and within the Australian workforce a lesser proportion of those with such responsibilities are able to work full time than those who do not." In Tleyji, that judicial notice was applied to the first and third elements of proof of a claim of indirect discrimination.
6. In Stokes at [76], the judicial notice pertained only to the third element of proof of a claim of indirect discrimination, "whether a substantially higher proportion of persons without responsibilities as a carer [for example] comply or are able to comply with that 'requirement or condition'". The tribunal declined to take judicial notice "that a substantially higher proportion of people working full time on a permanent roster of day and night shifts Monday to Sunday without carer responsibilities for a school age child can or do comply with changes to a roster which require them to do all day shifts on weekdays than can people with carer responsibilities for a school age child."
7. I am satisfied that the Tribunal's note in Stokes is not inconsistent with the taking of judicial notice in the present case that (a) people with responsibilities for young children who are not yet of school age find it difficult to balance their responsibilities to care for their children and work, and that (b) within the Australian workforce, a lesser proportion of those who have such responsibilities are able to work full time in positions which require attendance outside of core hours than those who do not.

VICTIMISATION

1. I differ from the findings at [257] and [265] that Superintendent McLean's considerations of the Applicant's employment at Campsie were separable from his knowledge of the Applicant's ADB complaint on April 24 2013, hereafter referred to as "the triggering event." The reasons are as follows:
2. As is set out in [49-56], all of Superintendent McLean's decisions and communications about the Applicant's employment at Campsie occurred after he was informed of and acknowledged his awareness of the triggering event. It is undisputed that on May 28 2013 when Superintendent McLean learned that the Applicant was the highest preferencing candidate for the Campsie position, he knew that she was the person who had made an ADB complaint in relation to the Rosehill LAC.
3. Upon learning this information, Superintendent McLean took unusual step of informing his boss, the Region Commander, Assistant Commissioner Carmine (Frank) Mennilli that "this is in the wind." His action underscored that Superintendent McLean did not regard this promotion appointment as a routine matter, nor treat the Applicant like any other promotional appointee. His awareness of the triggering event distinguished her in his view from other applicants.
4. Superintendent McLean's sensitivity to the triggering event was intensified by ongoing activities of the Respondent's Commanders and Regional Manager in discussing and responding to the trigger event in the period which coincided precisely with that in which he was contacted by the Applicant regarding her appointment at Campsie. Superintendent McLean maintained contact with Superintendent Chris Clarke, and the Region Commander about filling this vacancy.
5. The linkage between the triggering event and the Applicant's request for accommodation of her carer responsibilities became more salient to Superintendent McLean on May 30, 2013, the day after the Applicant telephoned him, and before he responded to her email proposal, when he was invited to discuss the "March/Lipman issue," at a meeting at the Regional Office, attended by Scott Whyte, other Commanders and Superintendent Chris Clark (transcript p. 375). At the hearing, Superintendent McLean confirmed that he attended a meeting with the Region Commander, other LAC Commanders and Superintendent Clarke during that week.
6. Due to the triggering event, Superintendent McLean's view of the Applicant was not neutral. This was reflected in his statement to Inspector Wallace (transcript pp. 350-351, 358): "As I understand, this is the officer who has put Scott Whyte through hell at Rosehill regarding part time work…. he had failed to negotiate a part time work agreement with this officer and that this officer had lodged a complaint with the Anti-Discrimination Board in relation to his conduct, so I took that as - in my wording to say - "put him through hell." At the hearing he confirmed that it was "truly unfortunate, yes, when a local area commander has to go through that process."
7. As a consequence of his negative view of the Applicant and sympathy for Scott Whyte, Superintendent McLean was motivated to preclude the Applicant from employment at Campsie. His motivation from the outset to pass the Applicant over was explicit in this comment to Inspector Wallace: "Hopefully we'll be able to go to the next person on the list." Support for the finding that Superintendent McLean aimed to preclude the Applicant from working at Campsie came both from the very brief time he allocated to consideration of her request for a part-time work agreement, and from his confirmation at the hearing that his consideration was focused on this particular Applicant rather than the hours required by the position for which she had applied in general: "Q. In that, "I cannot entertain any part time arrangement in respect to this Officer"? A. Yep. Q. It's not anything about positions generally; you're focused entirely at this stage on this particular Officer? A. In respect to that last sentence, yes."
8. Based on these statements by Superintendent McLean, I differ with the findings at [282], and am satisfied that the preponderance of the evidence reflected that his response to the Applicant's promotion application, including the Campsie condition, were informed by and motivated to some degree by the triggering event.
9. I differ with the findings at [164], [247], [267], [274-275] and at [272-273] that Superintendent McLean was unaware of the Applicant's current circumstances and inability to work 17 shifts before offering her "a 34 hour a week arrangement which enables 17 shifts in a six-week period" on June 3 2013. I reach this conclusion because four days earlier, on May 29 2013, the Applicant was instructed by Inspector Tony Wallace, when she contacted Superintendent McLean to "please give precise details of the number of shifts and hours you are able to work, so he is able to make an accurate assessment of the matter." The Applicant duly complied and informed Superintendent Mclean of her availability with precision in her phone call to him on May 29 2013, followed by her email stating her preference "to replicate the current arrangement I have with Harbourside LAC which consists of ten 12 hour shifts in a six week period averaging 20 hours per week". At the hearing, Superintendent McLean conceded that on May 29 2013 he was appraised of the Applicant's availability to work at Campsie: "Q. And so she was proposing to you at that stage a 10 by 12 hour shift? A. Yes. Q. In a six week period? A. Yes."
10. In her email of May 29 2013, the Applicant further specified to Superintendent McLean her difficulty in working more than 9.5 hours two days per week as her children's day care centre was open a maximum of 10.5 hours per day. She offered to work two shifts of 9.5 hours per week plus an additional 12-hour shift per roster. She indicated her willingness to participate in a job-share arrangement. In this context, I am satisfied that his offer of "a 34 hour a week arrangement which enables 17 shifts in a six-week period" was not a reasonable or genuine "starting point" but was coloured in part by his consideration of the triggering event. In reaching this decision, I relied on the following evidence: 1. Prior to making this offer, Superintendent McLean was informed by Superintendent Whyte that the Applicant said she was unable to work more than 12 12-hour shifts per roster and had access to copies of the correspondence between the Applicant and Superintendent Whyte documenting her availability. Superintendent McLean's email of June 3 2013 incorporated some identical phrases as were used in the offer sent to the Applicant by Superintendent Whyte, reflecting his familiarity with the correspondence culminating in the triggering event. 2. On June 3 2013, Superintendent McLean was advised by Respondent's Human Resources Duty Officer that for legal reasons he needed to send an offer of less than full-time hours to the Applicant. The Duty Officer recommended an offer of 15 12-hour shifts, but Superintendent McLean increased the offer by two 12-hour shifts per roster and substituted "a 34-hour a week arrangement which enables 17 shifts in a six-week period." 3. This offer was marginally less than a full-time work schedule, i.e., four hours per week less than a full-time schedule. Superintendent McLean's offer was calculated to comply, albeit minimally, with the directive to offer the Applicant less than full-time hours. This offer did not bear the hallmarks of a genuine effort to be flexible in exploring options for a part-time arrangement suited to the Applicant's availability due to her carer responsibilities. Superintendent McLean's response to the Applicant's proposal failed to explore options contained in her email of May 29 2013 to job share or work 9.5 hours shifts two days per week plus an extra 12-hour shift per roster, and far exceeded what he knew the Applicant could work. His reply: "I cannot accommodate your proposed Part-Time Agreement" did not convey a genuine interest in negotiation. It was calculated to discourage the Applicant and terminate further negotiations.
11. In her reply email to Superintendent McLean on June 6 2013 at 12:26pm, the Applicant expressed regret that she "was forced to withdraw" from the promotion because he could not accommodate her carer responsibilities. Superintendent McLean took no action to disabuse the Applicant of this view.
12. By 12:46pm, Superintendent McLean had issued instructions to formally de-select the Applicant from consideration for the position of Sergeant at Campsie. The speed of his decision (under ten minutes) was consistent with Superintendent McLean's earlier intent to pass her over, and matched the speed of his response on May 28 that he needed a full-time Sergeant after learning that she was the highest ranking candidate for the position.
13. After the Applicant filed a complaint with the ADB alleging victimisation at Campsie, Superintendent McLean denigrated the Applicant by making negative comments about her to police officers at Campsie, describing her as "a real pain in my arse" for "whinging" because she did not get a job at Campsie. These comments were consistent with the negative attitude to the Applicant displayed by Superintendent McLean because she complained to the ADB and with his general disregard for the prohibition against victimisation in the AD Act.
14. To prevail in a claim of victimisation, the Tribunal view is that intent to punish is not required: "Failure to prove an intention to victimise does not mean that the complaint lacks substance." Mitchell v Clayton Utz [2009] NSWADT 266 at [65]. What is required is a determination that one of the true or real reasons the Applicant was subjected to consequential detriment was the triggering event. Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The phrase "on the ground of" does not require the triggering event to be the sole or a substantial reason; it is sufficient if it is one of the real, genuine or true reasons. Burns v Sunol [2014] NSWCATAD 2.
15. In line with test established in Nicholls and Burns, for the foregoing reasons, I am satisfied that triggering event was one of the true or real reasons that Superintendent McLean offered marginally fewer hours than a full-time appointment to the Applicant, effectively denying her promotion. The causal link between the triggering event and Superintendent McLean's actions to pass her over was established by the foregoing context of discussions and communications with Superintendent McLean about that event in the Regional Command, and his quick dismissal of the Applicant's proposals for a part-time appointment. In Reddy v International Cargo Express [2004] NSWADT 218, the Tribunal found that the speed of a rejection of Mrs. Reddy's request for part-time consideration of her carer's responsibilities "raised a suspicion that little or no thoughtful consideration was given" to a valuable employee and structuring a job-sharing arrangement or some other reasonable alternative. A similar inference is warranted in this case, particularly because Superintendent McLean reported that he had negotiated many part-time work agreements before he was contacted by the Applicant and was familiar with the Respondent's part-time work policies.
16. I differ with the finding at [262], [275] and [277] that imposition of the Campsie condition did not cause a detriment to the Applicant. The concept of "detriment" was elaborated in the context of a victimisation complaint was elaborated in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,145-78,146. The Equal Opportunity Tribunal, as it then was known, held that "… all that is required to constitute a 'detriment' in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter." In Sivananthan v. Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] the Tribunal clarified that the word "detriment" should be given its ordinary English meaning of "loss, damage or injury".
17. I am satisfied that the preponderance of the evidence established that imposition of the requirement to work 34 hours per week or 17 x 10 hour shifts per roster was detrimental to the Applicant within the meaning of s 50 of the AD Act, and that this disadvantage was more than a trivial matter. The consequential injuries, losses and damages she sustained are listed below: 1. Loss of promotion to the rank of Sergeant. The Applicant was forced to withdraw her acceptance of the position of Sergeant commensurate with her abilities and to forego the promotion she had earned. This detriment included some pecuniary damages in the form of lost income. The Applicant's evidence was that for the initial period, her salary as a Leading Senior Constable would exceed that of a newly-appointed Sergeant, but that starting in 2015, her salary as a Leading Senior Constable was less than what her earning would have been as a Sergeant in Campsie since June 2013. An additional detriment was the lost accrual of time-in-service as Sergeant making her eligible for promotion to other positions, such as the rank of Inspector, after two years. 2. Lost past and future income through lost career opportunities attendant to the position of Sergeant, such as assignments as a relieving Inspector. While the precise number of opportunities of this sort that would have been afforded to the Applicant over a period of 2.5 years could not be specified with precision, these pecuniary losses were estimated at $20,000. 3. Psychological and physical stress in her daily activities of living. The Applicant provided unrebutted evidence that she was "extremely upset" by Superintendent McLean's response to her promotional appointment. These events precipitated painful and embarrassing stress-induced Pomphlox eczema which lasted for months on end, and physical and psychological discomfort in the form of nausea and stress prior to attending her workplace. In the previous 11 years, the Applicant had not experienced these symptoms in response to stressful aspects of her regular policing duties. The Applicant sought medical treatment for the physical and psychological stress symptoms and obtained psychological counselling to manage the stress in her daily activities of living. The physiological and psychological stress reactions and symptoms arising from the victimisation occurred over a protracted period. They were not trivial, but were painful and disruptive forms of distress that were objectively validated by expert medical and psychological practitioners who provided intervention and treatment. 4. A decline in emotional well-being, enjoyment of life and of work. Prior to the victimisation, the Applicant loved her job, and enthusiastically attended her workplace. From June 2013, when her career advancement was thwarted, she experienced ongoing mental anguish and became demoralised. She was disillusioned, made to feel that her contribution as a police officer was not valued, was let down by the Respondent, and had nowhere to go after an 11-year commitment to her career within the New South Wales Police Force. 5. Damage to her professional reputation. As noted above, after the Applicant alleged victimisation at Campsie, Superintendent McLean denigrated the Applicant by making negative comments about her to police officers at Campsie, describing her as "a real pain in my arse" for "whinging" because she did not get a job at Campsie. Comments of this nature contributed the ongoing injury to the Applicant in the form of reputational detriment and humiliation incurred in her place of work.
18. The Applicant's evidence about the foregoing consequential injuries, losses and damages was largely unchallenged. I am satisfied that these detriments are significant objective economic and non-economic losses and disadvantages which a reasonable person other than the Applicant would not find triviaI. I differ with the legal conclusion at [284]. The preponderance of the evidence supported the necessary elements of the Applicant's victimisation complaint, establishing that denial of her appointment at Campsie was on one of the grounds outlined in s 50(1) of the AD Act.
19. In determining an appropriate sum to compensate the Applicant for the nature and extent of her non-pecuniary injuries, contemporary standards in the community in the form of monetary awards for comparable pain and suffering, loss of enjoyment of life and work, and reputational damage are relevant. Kenny J, Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (15 July 2014). Ms Richardson was verbally sexually harassed, experienced significant distress manifested in changes to her demeanour and physical condition, and a diagnosis from her treating psychologist of a disorder which did not prevent her from working or pursuing her career. Similarly, in the present case, the Applicant reported significant distress, experienced changes in her demeanour and physical condition, and required treatment from medical and mental health professionals. Whereas Ms Richardson was nonetheless able to advance her career, the Applicant's career within the New South Wales Police Force was thwarted.
20. Loss of enjoyment of life and work, and reputational damage have been accorded a significant value in prior cases, including in New South Wales. In Richardson, Kenny J noted that "historically at least, damages awards have been at a higher level for loss of enjoyment of life and pain and suffering outside the anti-discrimination legislation field." He looked to the context of damages for personal injury, and determined that "community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before." Kenny J reviewed examples of general compensatory damages for pain and suffering and loss of enjoyment of life, including some in the range of $250,000 and $300,000 for workplace bullying and harassment in a police force and other organisations. As a result, the initial award of $18,000 in compensatory damages was determined to be "disproportionately low and failed adequately to compensate Ms Richardson" and was increased to $100,000.
21. Taking this guidance and prevailing community standards into account, I am satisfied that the sum of $70,000 to compensate the Applicant for her non-pecuniary losses is justified.
22. A retrospective appointment to the position of Sergeant as of June 3 2015 will restore the Applicant to the position she would have attained in the absence of the victimisation, including any salary differential owing to the Applicant.
23. To compensate the Applicant for additional lost past and future pecuniary damages had she worked as a Sergeant since June 2013, I am satisfied that the sum of $20,000 is reasonable, and is not speculative.

ORDERS

1. I make the following orders pursuant to Section 108(1)(b) and 108(2)(a)(c) and (d) of the AD Act: 1. The complaint of discrimination is dismissed. 2. The complaint of victimisation is substantiated. 3. Within 28 days of this decision, the Respondent shall: 1. Appoint the Applicant retrospectively from June 3 2013 to the rank and grade of Sergeant; 2. Compensate the Applicant in the amount of $20,000 for other past and future economic losses since June 3 2013; 3. Submit a written apology to the Applicant for publication in the forthcoming issues of Police Monthly and Police News, approximately one quarter of a page in size, respectively, acknowledging that she was unlawfully subjected to victimisation, by stating: The Commissioner of Police apologises to Leading Senior Constable Riannan March for unlawfully discriminating against her on the grounds of victimisation for filing a complaint with the Anti-Discrimination Board in regard to her promotion to the position of Sergeant, General Duties, Team Leader at the Campsie LAC in June 2013. 1. Compensate the Applicant in the amount of $70,000 for general damages experienced in the form of hurt, humiliation, embarrassment, distress, anxiety, reputational damage, loss of enjoyment of life and of work; 2. Require Superintendent McLean to attend Superintendent Transition Program Training provided by its Human Resources Department plus one hour of face-to-face training in relation to unlawful victimisation, to include relevant readings and examples.

A LIMBURY, General Member

1. On the issue of judicial notice, I agree with the reasons of General Member Goodman-Delahunty as expressed in paragraphs 290-294 and with her conclusion in paragraph 294. Otherwise, I am in agreement with the decision of and the orders proposed by Senior Member Lucy. 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: 01 December 2015