Mottau v Victoria Police

Mottau v Victoria Police - [2005] VCAT 2650 - VCAT 2005 case summary — Zoe

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4 Particulars of Claim and Defence have been filed, as have the complainant's statements and material on which he relies.

5 The respondent has applied to have the complaint struck out under s 75 of the Victorian Civil and Administrative Tribunal Act 1998. The application claims the complaint should be struck out on each and every ground available under the legislation.

6 The hearing of the strike-out application proceeded before me on the 18 and 29 November 2005. Mr Murphy of counsel represented the respondent and Mr Farouque, solicitor, represented the complainant. Both parties had filed written submissions and spoke to the submissions in this hearing.

7 There is no need to set out the principles that need to be applied in any strike-out application. They are well known to the parties.

8 Whilst Particulars of Claim have been filed, they are not well articulated, but seem to have been understood by the respondent.

9 An examination of the particulars reveals three events, which it is alleged form the basis of the complaint. Discrimination in breach of s 14(a) and possibly (d) of the Act, which prohibit discrimination of an employee on the ground of an attribute, is alleged. Section 14(a) says that an employer must not discriminate against an employee by denying or limiting their access to opportunities for promotion, transfer or training or to any other benefits in connection with the employment and section 14(d) says an employer must not discriminate against an employee by subjecting the employee to any other detriment. The attribute claimed is the applicant's impairment.

10 There are three events relied on. The first event is the choice of another to remain in the OIC position in preference to the complaint. He alleges this was because of his impairment. It is a complaint of direct discrimination in breach of s 8 of the Act.

11 The second and third events are claims of indirect discrimination in breach of s 9 of the Act. It is clear from all the particulars that the requirement the applicant says the respondent imposed, is the requirement that for an operational position, one must have the OSTT qualification. He claims that requirement is unreasonable, he cannot meet it where others without an impairment can.

12 The respondent applies to have the complaint struck out. Quoting from the application, para 2 says :

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22 I do not accept Mr Murphy's submission that any action because it is authorised under the Police Regulation Act 1958 or Regulations is protected by s 69. Such an Act must still authorise or necessitate the relevant conduct. Whilst that Act or the Regulations might contain general powers, such as the Commissioner's general power under Regulation 501 to transfer officers, Mr Murphy did not draw my attention to any statutory provision that authorised the relevant conduct, being the removal from the position Mr Mottau held, his transfer to the Training Department or the unwillingness to transfer him to an operational position.

23 More difficult is whether the transfer to the Training Department was pursuant to the Workforce Restructuring and Mobility Agreement to which the complainant and the respondent are a party and, if so, whether that Agreement is an "enactment" as defined in s 4 of the Act. If I can be satisfied it was pursuant to that Agreement and authorised by it, and it is an instrument of a legislative character, then the exception in s 69 Part 4 of the Act can have application. If the exception in s 69 applies, s 12 of the Act says that the discrimination is not prohibited.

24 The 1996 Agreement was an Agreement made pursuant to the Employees Relations Act 1992 (Vic). Later, Victoria referred all its powers to the Commonwealth. In 1998 a Certified Agreement was made under the Workplace Relations Act 1996 (Cth) (WRA). As I understand it, the 1998 agreement has full force and effect and remakes the 1996 agreement and is made under Commonwealth law.

25 The respondent contends that the 1996 Agreement is an enactment because it is an instrument of a legislative character. The parties were given leave to file written submissions on this point. The complainant's submissions refer to a decision of the High Court in R v Kelly; Ex parte State of Victoria [1950] HCA 7; (1950) 81 CLR 64. The High Court held that an industrial award was an instrument of a legislative character. At p 81 the High Court relevantly observed that :

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26 The complainant submitted that an industrial agreement given effect to under statute by its nature prescribes rules of conduct for the future and does not determine the rights and duties of those parties under the law as it already exists. Consequently, based on the decision of the High Court in R v Kelly such an agreement is of "legislative character".

27 In light of those concessions I accept that the Agreement is an instrument of a legislative character. But that is not the end of the matter. Mr Farouque submitted in essence that the powers under the Agreement are only enlivened by certain pre-conditions. An officer must be returning to duties.

28 Part 7 of the Agreement is directed to "employees" who are declared medically incapacitated - work-related illness or injury". The clauses the respondent relies on, like Cl. 67, apply to employees "who have an ongoing incapacity to return to the duties of their position". Clause 69 requires the medical officer to examine and advise about "returning to full duties of his/her current position". Clause 72 permits the Chief Commissioner, in accordance with medical advice, to authorise return to full duties etc or to transfer an officer to another position.

29 As I understand the facts, Mr Mottau actually occupied the position of relieving senior sergeant in 2000/2001. He maintains he was already performing all his duties and had already returned to duties after his stroke in 1992.

30 The applicant also contends that it is not clear whether he was actually transferred under Cl. 72 of the Agreement rather than under Regulation 501 by the Commission. Certainly the correspondence between the parties at the time is far from clear.

31 The letter dated 17 August 2001, from the Mobility Services Branch, refers to a Regulation 501 transfer and there is no reference to the transfer being pursuant to Cl. 72 of the Agreement.

32 The respondent may dispute this, but there is a factual dispute about whether the agreement was ever enlivened and, in those circumstances, that issue is not amenable to resolution in a strike-out hearing. There are a number of factual matters in dispute, such that I could not find in these circumstances, at a strike-out hearing, that the exception under s 69 as it applies to the Agreement is made out.

33 Mr Murphy next submitted that the removal complaint is misconceived or an abuse of process. As I understand it, the submissions focus on the first and second events.

34 The first event concerns a complaint of direct discrimination. In his statement, the complainant says at paragraph 57, another officer was chosen instead of him to be the relieving officer because that officer had no disability. In his Particulars, he claims in paragraph 6 that he was discriminated against on the basis of his impairment in that he was prevented from continuing to relieve within the Region.

35 The respondent denies the claim and submitted in its Particulars of Defence that the decisions about relief in the Region were made having regard to

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37 The respondent submits that his claim cannot succeed, because there was no differential treatment that could constitute discrimination under s 8(1). It is submitted that the comparator is a police officer in similar circumstances without the disability and the complainant must satisfy the Tribunal that a substantial reason for the treatment was his disability.

38 If the complainant can satisfy the Tribunal that the substantial reason was his impairment and it is that impairment without any reference to the OSTT requirement, aside from any comparator arguments, it is possible the claim might succeed.

39 To succeed in a claim of direct discrimination, first one has to be satisfied about what the substantial reason for the alleged conduct was. This is not clear.

40 The reasons for removal from the relieving position need to be tested by the hearing evidence. It is premature to strike it out.

41 In submissions the respondent also submits that the complainant cannot require the respondent to modify rules of general application for his benefit and referred to State of Victoria v Schou (No 2) [2004] VSCA 71; (2004) 8 VR 120 a decision of the Court of Appeal.

42 Section 9 of the Act prohibits indirect discrimination. As I said, a careful reading of the complaint identifies that a requirement that the complainant says has been imposed, is the requirement to comply with OSTT for operational positions. That is, one has to be able to comply with the OSTT requirement for any operational position.

43 The particulars of complaint are not expressed with clarity. They appear to inextricably link the removal from the roster and his transfer. As I understand it though, the second event is the transfer, and the third event is the later alleged unwillingness to allow him to transfer to an operational position. He claims these actions constitute indirect discrimination. A reading of paragraphs 18 to 21 of the Particulars refers to the imposition of an OSTT requirement with respect to both of these events, which requirement he claims is unreasonable, albeit by reference to what he asserts he has been able to do in the position in the past.

44 In complaints of indirect discrimination, following Schou's case, the first question under s 9 is whether the condition or requirement is itself unreasonable. This task must be undertaken before considering the complainant's particular situation. I do not accept Mr Murphy's submission that the decision in Schou means that one can never require a respondent to modify rules of general application for their benefit, if by that he means that one is prevented from making a complaint of indirect discrimination.

45 The claim of indirect discrimination needs to be decided by the calling and testing of evidence and my attention was drawn to material the complainant intended to rely upon. Whilst one cannot simply require an employer to modify rules of general application for their benefit, that does not mean one cannot make a complaint that a general rule is discriminatory and seek remedies under the Act.

46 Next, the respondent contends that in the context of the legislative and industrial framework within which the complainant finds himself as a sworn police officer, with the inherent obligations that imposes on him and on the respondent, his complaint is misconceived or otherwise an abuse of process.

47 The respondent then refers to

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55 Mr Farouque responded briefly to Mr Murphy's extensive reply. So far as the submissions about matters such as "condonation", "estoppel" or "election" were concerned, he pointed out that all of the cases referred to were in very different factual contexts and that it would be dangerous to apply them where what is being considered in this application in the context of a statutory scheme. He referred to the Tribunal's decision in Hecimovic v Victoria Police [2005] VCAT 870 and the caution expressed in that case about equating a complaint of breach of the Act to an action for common law damages for work related injury and to the observation that statutory schemes are completely different.

56 Without going into detail about the complainant's specific objections about whether the avenues of redress were or were not available, the failure to avail oneself of any remedy available elsewhere is not a bar to the bringing of a complaint of discrimination. Such a failure of itself would not be sufficient reason to strike out a complaint of discrimination. There are many complaints of discrimination brought, where a complainant might also have or have had rights of redress elsewhere. Nor am I satisfied that failure to avail oneself of more than one avenue is sufficient grounds to find the complaint is without substance or an abuse of process.

57 What is clear from the respondent's material[2] is that it had understood his complaint and made it clear that the position was that he was able to remain in his current position or request a Regulation 21 transfer to a non-operational position. If it is that requirement which founds his complaint of indirect discrimination, it can hardly be said that his complaint about that has been delayed.

58 The complainant contends that there is no inordinate delay. He lodged his complaint in May 2004, at about the time he raised issues about whether he could be transferred. Further, though he is referring to matters in 2000 and 2001, both complaints will essentially be dealing with the same considerations.

59 The submissions that the Tribunal processes should be reserved for the deserving; that the Tribunal should not deal with his complaint because he can apply for positions and would have rights of appeal if not successful; that his conduct in accepting his removal or transfer creates an estoppel; and public interest considerations do not persuade me that the complaint should be struck out. Not do I accept there is any basis for saying this complaint is brought for a collateral purpose such that it should be struck out. If the complaint were to succeed, it may well be that some of these considerations, would be relevant to what orders the Tribunal might make.

60 In these circumstances I refuse the application to strike out the complaints.

At a glance

Court

Decision date

Source

Judgment (45 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (5)

Mottau v Victoria Police (Anti Discrimination) [2005] VCAT 2650 (13 December 2005)