Osborne v Director General Department of Premier and Cabinet

Supreme Court of Victoria|2011-11-29|Before: Non-Judicial Member J

Background 1This was an application by Mr Osborne, a former firefighter, alleging disability discrimination in employment, by the respondent, Fire and Rescue NSW (Director General, Department of Premier and Cabinet). The applicant lodged a claim with the Anti-Discrimination Board (the Board) on 8 March 2011, and on 27 May 2011 the matter was referred to the tribunal for determination. The applicant alleges that he was discriminated against on the ground of his disability, being bipolar disorder, when he was dismissed from his employment, for conduct/behaviour occurring during a manic episode. 2The respondent's case is that the behaviour was seriously inappropriate and that the misconduct was the reason for his dismissal. 3The alleged conduct/behaviour was that the applicant, whilst in uniform and on duty at the Sydney Royal Easter Show, indecently assaulted three women. It is also alleged that the applicant had been drinking alcohol and was intoxicated. The applicant was arrested and charged with three counts of assault with act of indecency and three counts of common assault and the offences were dealt with in the Local Court pursuant to the diversionary provisions of the Mental Health (Forensic Provisions) Act 1990, resulting in the applicant being subject to a Court Order imposing conditions requiring treatment of his mental illness. 4A further issue in this case was that the respondent terminated the applicant's employment by use of a rarely used provision, being clause 12(1)(b) of the Fire Brigades Regulation 2008 rather than by use of the usual disciplinary processes. The evidence at the hearing was that only one other person had been dismissed by use of clause 12(1)(b) several years previously, and that in the time that Commissioner Mullins has been Commissioner of the Fire and Rescue New South Wales, it has never been used. The use of clause 12(1)(b) in the applicant's case was also a cause of industrial action being taken by the relevant Union representing Mr Osborne and other firefighters (the Fire Brigade Employees Union "FBEU"). 5The applicant submits that embarrassment caused to the respondent due to words used by Ray Hadley, on the radio, in discussing the applicant's conduct, meant that proper processes were not followed by the respondent in the decision to terminate the applicant's employment. The applicant maintains, in detailed written submissions, that his employment was terminated for reason of his disability, and that the alleged misconduct was part of his disability. He maintains that a person without his disability would have been treated differently by the respondent.

The evidence 6The applicant gave evidence to the tribunal, being a written affidavit with annexures A - M, and also gave oral evidence and was subject to cross examination. The applicant also provided witness testimony from Mr Kirkpatrick, psychologist in the employ of the respondent; and Christopher Read, senior industrial officer with the Fire Brigade Employees Union (FBEU). Both Mr Read and Mr Kirkpatrick provided written affidavits, Mr Read's affidavit had some 15 annexures, and both witnesses also gave oral evidence to the tribunal and were subject to cross examination. The applicant provided a report from Dr Samson Roberts, Consultant Forensic Psychiatrist, of 27 July 2011. Detailed written and oral submissions were also made by the applicant's representative. 7The respondent provided a written statement from Commissioner Mullins, Commissioner of Fire and Rescue New South Wales, and Commissioner Mullins also gave oral evidence to the tribunal and was subject to cross examination. A further witness statement was provided from Ms Jodi Camden, Solicitor, Manager, Industrial Relations, Fire and Rescue New South Wales. Ms Camden was not required for cross-examination. Attached to the affidavit of Ms Camden was a statement of a witness, obtained by the New South Wales Police, relating to one of the alleged assaults with which the applicant was charged, and which was dealt with by the Local Court. This is further discussed below. The respondent also relied on detailed written and oral submissions. 8The applicant commenced employment with the New South Wales Fire Brigades on 10 November 2006. He was transferred to the Concord Fire Station in March 2007. The applicant states that until 11 April 2010 he had an unblemished service record and there were no issues with his work performance which were brought to his attention. On 10 and 11 April 2010, Concord Fire Station was required to stand by at the Royal Easter Show to provide emergency response during a main event show that involved the use of fire. The applicant was part of the crew that attended the Easter Show on both days. Whilst they were at the Easter Show on 10 April the fire crew, including the applicant, chatted with members of the public and showed the public over the fire truck. 9The applicant details in his affidavit that on 11 April 2010 he drove from his house to Concord Fire Station at approximately 5 pm. On arrival he attended the station gym. In his oral evidence, subject to cross examination, the applicant stated that on his way to work he stopped at a hotel in Strathfield and consumed alcohol (to the best of his recollection he had 2 or 3 schooners of mid-strength beer) and gambled. He then went to work, it was customary to arrive at around 5pm for a shift commencing at 6pm.The fire crew then responded to an automatic alarm, which happened to be at the Royal Easter Show, at around 7 pm. The call was declared a false alarm after their arrival, and they parked their firetruck in the same place they had parked the night before, to wait for the main event in the arena. He recalled standing with the firetruck and talking to some members of the public who he believed he had spoken to the day before. He remembers the crew splitting up soon after their arrival at the Show but does not recall if he left the area where the firetruck was first or whether the other crew members walked away first. He recalls being separated from the rest of the crew but does not recall much of what occurred. The allegations of witnesses that he was drinking alcohol at the Show were put to the applicant, and he said he would deny such drinking but he had no recollection either way. He cannot recall drinking at the Show, the drinking he can recall was the drinking he did before 5pm that day, and they arrived at the Show at 7pm. However, he can recall almost nothing from the time that he split up from the crew, which was soon after their arrival at 7pm. He cannot recall his arrest by the police except he does recall being confused about why he was at the police station. He recalls being told that he could not attend work and that he had been suspended. 10The applicant states that on 12 April 2010 he received a letter from the Superintendent, Professional Standards and Conduct Officer, regarding his suspension and inviting a response within seven days. He says he was contacted a week or so after the incident as they wished to arrange an investigator to question him. The applicant states that his Legal Counsel handling the criminal charges, advised him not to make a statement to the investigator, however he says he clearly indicated he would be more than happy to cooperate with any internal investigation after the criminal proceedings had concluded. He said he was advised that it would be too late by then as they would have finished the investigation. The applicant has since been advised by crew members from Concord Fire Station that they were interviewed, in April and again in September, by external investigators. The applicant states he was not contacted by an investigator after the criminal proceedings concluded. 11On 09 September 2010 the applicant attended Burwood Local Court. The charges were dismissed in accordance with section 32 of the Mental Health (Forensic Provisions) Act 1990 and the Court made an Order for treatment. 12The applicant states that on 10 September 2010 he heard an interview on the Ray Hadley show on 2GB radio. The applicant attached a transcript of the radio interview to his affidavit. He says the transcript of this interview and another interview were provided to him by the Union. One of the interviews includes comments from a woman who called in to the radio show stating she was one of the alleged victims on 11 April 2010. On 15 September 2010 a letter was hand delivered to the applicant, from Commissioner Mullins, indicating he proposed to terminate the applicant's employment. The applicant understands the Union then corresponded with the Commissioner on his behalf. On 1 October 2010 the Union wrote to the respondent indicating that the applicant was fit to continue his job as a firefighter. A copy of the applicant's medical report, by Dr Roberts, of August 2010, was also forwarded. On 2 November 2010 the applicant received a termination letter from Commissioner Mullins. On 4 November 2010 the applicant heard part of an interview on the Ray Hadley show on 2GB. A transcript of the radio show is attached to his affidavit. He found what was said on the radio show to be very distressing. 13The applicant details that he was not aware he had bipolar disorder before he joined the New South Wales Fire Brigades, and he was not diagnosed until 2008. "I have taken my treatment seriously and have been trying to manage my condition since being diagnosed to the best of my ability. Since the alleged incident at the Easter Show I have spent a great deal of my time seeking treatment and education in managing my condition. This includes spending three weeks at South Pacific Private Hospital commencing on 28 June 2010....... This was a very intense programme. I have also ensured that I keep up my appointments with my support team at the Sutherland Hospital and also the counselling I received from a counsellor in Caringbah. I strive to put in place all I learnt at South Pacific and maintain the treatment regime as ordered by the Court and recommended by Dr Roberts. This whole matter has been extremely stressful for me and this has required additional treatment. During the period after the April incident and before my termination I regularly visited a counsellor to help me deal with the emotional response I was having to the Department's handling of the matter and to the publicity surrounding my case. Attached and marked M is a list of dates that I attended the Interrelate Family Centre and saw my counsellor..." 14The applicant goes on to detail changes in his employment since his termination by the respondent. He expresses his sadness at not being able to continue his job as a firefighter. He states that the events in April 2010 were a direct result of his condition, which is now being managed appropriately to the extent that he is currently able, in his new employment, to manage a role that is at times stressful, which requires him to manage client relationships and interact with the public, and he is able to perform this role. 15As noted above, in his oral evidence the applicant described drinking beer and gambling, at a pub, on the way to work on 11 April 2010. Witnesses to the alleged assaults at the Easter Show described witnessing the applicant drinking alcohol whilst at the Easter Show and appearing intoxicated by alcohol. These observations were put to the applicant during cross examination and he stated that he would deny the observations but is unable to do so due to lack of recall. 16The statement of alleged victim RM, to police, (annexure A to the affidavit of Ms Camden) states that the applicant smelled strongly of alcohol and appeared unsteady on his feet. Another alleged victim in comments in a radio interview, the transcript of which is attachment D to the affidavit of the applicant, states that she observed the applicant drinking beer at the Show. 17The applicant relies also on the evidence of Mr Kirkpatrick, and the Drug and Alcohol Protocol of the respondent. It was submitted that the applicant should have been supported with his medical condition. It was further submitted that if there were alcohol issues related to his medical condition then the Drug And Alcohol Protocol should have been followed by the respondent. 18Mr Kirkpatrick gave evidence that he commenced employment with the respondent in March 1984 and has completed undergraduate and postgraduate studies in psychology and is a registered psychologist. He has WorkCover approval as a psychologist. He commenced working as the Manager of Critical Incident Support and Employee Assistance Program (for the respondent) in the month of February, 2008. Mr Kirkpatrick says he is aware of firefighters who successfully manage depression, anxiety, bipolar disorder and substance abuse disorders, and continue to work competently as firefighters in operational roles at fire stations throughout the State. Mr Kirkpatrick says he is aware of the effort made by the applicant to gain a greater understanding of his bipolar condition, including a period as an inpatient at South Pacific Private Hospital and appointments with his psychiatrist and psychologist. 19Mr Kirkpatrick expresses his opinion that the applicant has gained a greater knowledge about bipolar disorder, and has developed the skills to manage his condition, post the incident of 11 April 2010. In his view this was evidenced by the stability which the applicant demonstrated during a number of very stressful and emotional experiences, including the court case, the media exposure on 2GB and the termination of his employment by the respondent. Mr Kirkpatrick attached to his affidavit records of e-mail communications between himself and Commissioner Mullins about the applicant's case, the radio coverage on 2GB, and mental health issues for firefighters generally. 20Under cross-examination Mr Kirkpatrick observed that he was not responsible for providing treatment and care to the applicant, other professionals were direct caregivers. His role was one of the workplace encouragement and support. He did not question the applicant about his use of alcohol, but rather asked how things were going with his treatment, and the applicant would report his progress. Mr Kirkpatrick said he was not taking a treatment approach. He maintained his view that during the relevant period the applicant's understanding of his bipolar disorder increased substantially. It was put to Mr Kirkpatrick that during this rehabilitation period, the evidence indicated that the applicant had drunk alcohol to excess on at least two occasions, and Mr Kirkpatrick stated this did not change his assessment, he saw it as part of development and recovery and it would be unrealistic to expect that there would not be some incidents of alcohol use. 21Dr Samsun Roberts, Consultant Forensic Psychiatrist, provided a report dated 27 July 2011. Dr Roberts states that his psychiatric opinion, with respect to the applicant, is based on two assessments undertaken in his rooms on 4 August 2010 and 16 May 2011. In addition he reviewed certain documents provided to him by the applicant's representative. These documents included the New South Wales Police documents for the events which occurred on 11 April 2010, a report of Dr David Hughes, Consultant Psychiatrist, and a report of Janine Tayoube, Psychologist (these documents were not before the tribunal). An earlier report by Dr Roberts prepared for the court proceedings, dated 10 August 2010, was attached to the applicant's affidavit (annexure I). At the time of the applicant's initial attendance upon Dr Roberts in August 2010 he was working in his trade as a plumber, having been suspended from employment with the respondent. Dr Roberts details the psychiatric history provided to him by the applicant. The applicant reported having first attended upon a psychiatrist in 2008. He had described a history of mood disturbance to Dr Roberts. Dr Roberts details that the applicant explained that he no longer consumes alcohol except during periods of mood elevation. He considers himself readily affected by alcohol, he tends to continue drinking to the point that he consumes excessive amounts.During such episodes he also gambles more than he can afford, and readily talks to strangers. "During recent episodes of mood elevation, his attention has been focused on gambling and alcohol. Inappropriate sexual behaviour has not been a feature of these episodes." 22Dr Roberts details the applicant's description of a period of significant mood elevation around the time of the Easter Show. The applicant reported that during the latter half of 2010 he had a couple of months where he was good, followed by a couple of months when he was struggling to hang on, tending towards mania. In November or December 2010 he was finding it difficult and in January 2011 he resumed full-time employment. He attributed his precarious mental state to his inability to attend a psychologist at the frequency he had been doing previously. In mid-March 2011 he reported telling his psychiatrist that his medication was not containing his mood, a blood test was undertaken and his medication was subsequently increased. Dr Roberts notes an inpatient stay at South Pacific Private Hospital from 28 June 2010 to 16 July 2010 where the applicant was hospitalised to address his alcohol use and bipolar disorder. Dr Roberts notes prescription of Quetiapine to assist with insomnia at this time and expresses an opinion that the dose would not have been sufficient to influence the stability of his mood disorder. Dr Roberts details the applicant's report of having attended marriage counselling with his wife and that the relationship has ended. 23The applicant described his mood state during April as a high mood. He had time before work on the day of the offences to drink and gamble. He recalled feeling "high as a kite". He recalled that he saw his psychologist during the week prior to the incident and she had said to him that he was "building". The applicant explained to Dr Roberts that he was struggling with shiftwork and would forget to take his medication on nightshift. On reflection he considered the episode in April 2010 was the worst he had experienced. He states there was no obvious precipitant and he had consumed little alcohol. He recalled having no sense of consequence with respect to conduct and it never entered his mind that he was compromising himself as a result of the behaviour in which he engaged. The applicant reported to Dr Roberts recalling little of the events which led to him being charged in April 2010. He recalled walking around and recalled the presence of the police. He recalled being perplexed by the accusation and responding in disbelief. He only knew what transpired based on the contents of the Police Facts Sheet. 24Dr Roberts provides his opinion that the applicant suffers bipolar I disorder which evolved since his mid to late teens. His predominant tendency is towards mania, during which he feels elated, euphoric, energised and driven. He has a propensity to engage in behaviour which, in retrospect, would have significant personal ramifications. Dr Roberts states his opinion that prior to the episode of mood elevation in April 2010, Mr Osborne's periods of elevation were not of such a degree of severity as to cause a level of impairment or necessitate hospitalisation and would have been considered hypo-manic episodes. Diagnostically he would previously be considered to have fulfilled the criteria for bipolar II disorder. 25Dr Roberts also stated his opinion that the applicant attracts a diagnosis of alcohol abuse in remission. He has engaged in use of the substance without clear evidence of attaining dependency. Dr Roberts states that bipolar disorder necessitates mood stabilising medication being maintained at a therapeutic level, with regular monitoring to ensure effectiveness of treatment. Psychological treatment alone is not sufficient. 26Dr Roberts states his opinion that the applicant was manic at the time of the offences of 11 April 2010. The conduct, as reported in the documents, reflects dis-inhibition and disregard for consequences. Dr Roberts states that the applicant will require indefinite treatment with mood stabilisers and medication may be required from time to time. Blood tests are required to monitor medication levels and exclude side-effects. Regular monitoring by a Consultant Psychiatrist is required, currently at a frequency of every one to four weeks, thereafter frequency may be reduced. Regular Alcoholics Anonymous meetings and psychological support would be appropriate in the longer term. 27Dr Roberts provides the opinion that the applicant has developed insight into his psychiatric condition and has addressed, successfully, his tendency to excess alcohol consumption. He has been reliant upon the public mental health system which has not provided the level of service necessary to support him. He has indicated a willingness to explore private psychiatric treatment to ensure his ability to obtain regular appointment times, and timely review, in the event that he notices deterioration in his mental state. In Dr Roberts' view this would have positive ramifications. Dr Roberts' opinion is that the prognosis is good because of the level of insight. Dr Roberts is of the opinion that the applicant will achieve long term stability once optimal pharmacological management is in place. Dr Roberts notes that he previously provided a report in 2010 addressing the criminal charges. 28The applicant was cross examined during the hearing about his consumption of alcohol, and questions about this issue were also put to Mr Fitzpatrick, as detailed above in these Reasons for Decision. The applicant did indicate that in recent times, since the offences of April 2010, there had been occasions when he had drunk alcohol when manic, but also indicated to Dr Roberts, and to others, and in his evidence to the tribunal, recent more effective management of his tendency to misuse alcohol. 29The evidence of Mr Read and the attachments to his affidavit detailed correspondence between the Union on behalf of the applicant, and the respondent, and events around the dismissal of the applicant. When cross-examined about the Union's concern about the use of regulation 12(1)( b) Mr Read agreed that this was a major issue for the Union and the existence of this clause of the Regulation had been a concern to the Union for a decade. 30The respondent's evidence was primarily contained in the affidavit and oral evidence of Commissioner Mullins. Commissioner Mullins stated that on 11 April 2010 at the Sydney Royal Easter Show, while on duty and in work uniform, the applicant was arrested and charged with three counts of assault with act of indecency and three counts of common assault. "I understand that the first of the group of charges (1 x act of indecency and 1 x common assault) involved Mr Osborne approaching a female victim (JH) who was seated in Kelly Pavilion. Mr Osborne sat upon JH facing her and attempted to kiss her. JH pushed Mr Osborne away. I understand that the second group of charges involved Mr Osborne approaching a female victim (RM) who was seated in another section of Kelly pavilion with her five children [The tribunal notes that the statement of RM says she was with five children, two of whom were hers]. Mr Osborne sat upon RM's lap facing her and grabbed her cheeks with both hands and kissed her on the mouth. Mr Osborne then stood, turned with his back to RM and again sat on her. RM had suffered a broken back sometime before this incident and the incident caused her significant pain. RM managed to push Mr Osborne away. I understand that the third group of charges involved Mr Osborne leaving Kelly pavilion and approaching victim BG. Mr Osborne rubbed his hand on the breast of BG. BG re-entered the pavilion and sat down next to the first victim, JH. Mr Osborne followed and verbally abused both victims BG and JH." 31Commissioner Mullins states that Mr Osborne was suspended from duty with pay on 12 April 2010 and the suspension was confirmed on 27 April 2010. On 8 September 2010 the Magistrate at the Burwood Local Court conditionally discharged the applicant in respect of the six criminal charges on the basis of an application pursuant to section 32(3)(b) of the Mental Health (Forensic Provisions) Act 1990. The Magistrate was satisfied that the applicant was suffering from a mental illness whilst not being a mentally ill person. 32Commissioner Mullins states he received a briefing from the Workplace Standards Branch (of the respondent) on or about 14 September 2010. On 15 September 2010 he gave notice to Mr Osborne that he was considering action to terminate his employment pursuant to clause 12(1) of the Fire Brigades Regulation 2008 on the grounds that he was no longer medically or psychologically fit to exercise the functions of a firefighter or was no longer a suitable person to exercise the functions of a firefighter. Commissioner Mullins observes that did not specify regulation 12(1)(a) or 12(1)(b) in the notice for two reasons: firstly, the nature of the Order for Treatment imposed by the Local Court Magistrate on 8 September 2010 was such that Commissioner Mullins considered it would be impossible for the Service to be assured of ongoing compliance; and secondly, while the criminal charges had been conditionally discharged by a Local Court Magistrate, the alleged offences were of an extremely serious nature and not consistent with the standards of behaviour acceptable within the Service. Commissioner Mullins states that in accordance with clause 12(8) of the Fire Brigades Regulation 2008 ("the Regulation") Mr Osborne was provided with seven days in which to respond. The Union (FBEU) advised the respondent on 17 September 2010 that they would be acting on the applicant's behalf and all communication should be with the Union. The respondent states that they were thereby unable to obtain information directly from the applicant. On 24 September 2010 the Workplace Standards branch of the respondent wrote to the Union and provided a copy of the Magistrate's Order for Treatment. On 29 September 2010 correspondence was received from the Union. 33Commissioner Mullins states: "in the absence of any material being provided by the FBEU to assist, the service sought and obtained court records and transcripts so that the facts of the case and the Magistrate's decision were well understood and could be used in my determination of Mr Osborne's employment future with the service". 34It is stated that the applicant and the Union refused to release medical information, but did finally provide medical information to the respondent's occupational physician. The occupational physician provided the Commissioner with clear advice as to the ability of Mr Osborne to carry out the inherent functions of a firefighter, based on the information contained in the confidential medical report. Commissioner Mullins details further briefings which he received from relevant officers of the respondent, and states: "I took the following matters into consideration in making my decision to terminate Mr Osborne's employment: (a) The nature of the criminal charges and the conduct and other circumstances surrounding those charges; (b) The circumstances surrounding the conditional discharge of the criminal charges pursuant to s 32...; (c) The order of the treatment dated 8 September 2010; (d) A letter from the FBEU dated 1 October 2010 in response to my letter dated 24 September 2010; (e) Advice from the Service's Occupational Physician following provision of confidential medical information on behalf of Mr Osborne by the FBEU; and (f) The ability of the Service to provide a safe working environment for Mr Osborne, for other employees and for members of the public. (g)The fact that firefighters hold a special position in the community and are regarded with a high degree of trust and respect. By his conduct on 11 April 2010, Mr Osborne betrayed that trust and lost that respect so as to warrant his swift removal from employment with the Service."[Emphasis added]...... 35In relation to the use of clause 12(1)(b) of the Regulation Commissioner Mullins states that he is aware of the decision of Justice Boland in the Industrial Relations Commission of New South Wales [the written judgment is attachment CR10 to the affidavit of Mr Read]. Commissioner Mullins notes Justice Bolan's observations that firefighters are different to other workers when it comes to their rights in relation to termination of employment. Commissioner Mullins observed that Justice Boland noted the special position of trust and respect within the community which may warrant, when such trust and respect is betrayed, swift removal from employment. The tribunal notes the words of Justice Boland at paragraph 10 of his judgement: "firefighters hold a special position in the community and they are regarded with a high degree of trust and respect by the community. If they betray that trust and respect in carrying out their role in such a manner as to warrant swift removal it is appropriate that the Commissioner has the power to do so, subject to the requirements of procedural procedural fairness and review by the relevant tribunal." 36The Commissioner stated that he did not take action until after the Magistrate's decision to conditionally discharge the applicant from the criminal charges; and that he took less than two months from that date, to 2 November 2012, to reach his decision to terminate the applicant's employment. The tribunal observes also that quick action was taken as at April 2010 as the applicant was suspended. 37The Commissioner further states that it is important to note the distinction between the operation of part four of the Fire Brigade Regulation 2008 (the Regulation) containing disciplinary provisions and investigation and inquiry processes; and the swift action permitted by clause 12(1) of the Regulation. The process involved in receiving a complaint, conducting preliminary enquiries, determining any departmental charges alleging misconduct, conducting a formal enquiry and ultimately determining appropriate disciplinary outcomes where charges are admitted or proven, can be complex and time consuming. By contrast, clause 12(1) and specifically clause 12(1)(b) of the Regulation allows the Commissioner to make a qualitative analysis and assessment of the conduct and character of the employee under consideration - "My conclusions in respect of the employment future of Mr Osborne on 2 November 2010 was that on all the available material there had been a fundamental breakdown in my trust and confidence in respect of the conduct and character of Mr Osborne. I believe that I acted swiftly and appropriately to determine his employment." 38In his affidavit Commissioner Mullins further details his considerations, and states that in all the circumstances he came to the firm conclusion that Mr Osborne was no longer a suitable person to exercise the functions of a firefighter. 39Commissioner Mullins also states: " Firefighters, in dealing with emergency and disaster situations, are routinely confronted with people in their most vulnerable state - injured, disoriented, distressed, and grieving. The fact that firefighters are consistently rated as one of the most trusted professions is testament to the professionalism displayed by firefighters when protecting and saving life and property. This is a huge responsibility, and a fundamental part of being a member of an emergency service. My decision to terminate Mr Osborne's employment was not discrimination .... "Mr Osborne's conduct while on duty was such that it brought himself, firefighters and the Service into public disrepute, potentially harming the trust that members of the community have in the Service and its ability to respond appropriately in their time of need. I have a responsibility to protect this hard-won reputation so that members of the community can be assured that they will be treated with dignity and respect in all dealings with uniformed employees of my organisation." 40Under cross-examination it was put to Commissioner Mullins that if someone in the employ of the respondent is affected by alcohol there is a protocol which should be observed. Commissioner Mullins responded that the protocol is in dispute/under review because it is not effective. He stated that in some cases alcohol use is treated as misconduct but not necessarily. It was put to Commissioner Mullins that the protocol sets out a supportive approach but if there is a continuing problem it can progress to disciplinary action. Commissioner Mullins did not disagree, but indicated a lack of support for the protocol. . In relation to the use of the Drug and Alcohol Protocol Commissioner Mullins stated that if there was a serious case of misconduct one might not get to use the Drug and Alcohol Protocol, the bad conduct may outweigh considerations involving the use of the Drug and Alcohol Protocol. 41Commissioner Mullins was cross examined at length about the process of his decision-making including the decision to use clause 12(1)(b) of the Regulation and he maintained that his major consideration was the nature of the conduct leading to the criminal charges. Commissioner Mullins maintained, under cross-examination, that the conduct of the applicant went to the core of the trust that the community places in the Fire and Rescue Service which he has a duty to protect. He agreed that there were firefighters in the respondent's employment who suffered from bipolar disorder. He stated that he agreed that, with treatment, manic episodes can be controlled, and indicated he had personal experience of a person who has this illness. 42Commissioner Mullins was cross examined at length about why he did not deal with the matter as a medical issue. Because the Service was asked by the Union to treat the matter as a health issue, briefings were sought by the Commissioner on health aspects in relation to the Court's treatment order. He was advised that the Service could not ensure compliance with the Treatment Order. However his focus remained the misconduct. He indicated his view that it was a disciplinary matter and not a medical matter. He stated words to the effect of: "the Union tried to take us down the path of saying this is a medical issue, I discounted that and did not find it to be so" . 43Commissioner Mullins stated that the use of clause 12 of the Regulation was a swifter path than going to the disciplinary provisions in part four of the Regulation, and this is what he chose as appropriate. Commissioner Mullins maintained that his decision was based on the seriousness of the applicant's conduct, concern for the trust of the community and the role of the Service in the community, and the safety of the public, and taking these considerations into account Commissioner Mullins found that the applicant was not a suitable person. 44Commissioner Mullins added that the conduct of the applicant was behaviour that he had never previously heard of, or seen, in the Fire Service, and he had to make a decision about the Service's response to the applicant's conduct. 45Commissioner Mullins stated that nature of the misconduct was such as to break the contract of trust ,and he had real fears that such conduct would happen again. Under cross-examination Commissioner Mullins maintained that the comments by Ray Hadley did not influence him "I'm used to it". The public outrage around the issue would have had an impact as he believes he has a duty, as Commissioner, to consider the public perception of the Service. Given the conduct, Commissioner Mullins had no confidence in the applicant and his performance, and for these reasons found him not to be a suitable person to be a firefighter. If the behaviour had been committed by a person not suffering from mental illness he would also have dismissed the person and done so quickly.

The Law 46The Anti-Discrimination Act 1977 NSW (the Act) provides that it is unlawful to discriminate in employment on the grounds of disability. Disability is defined in s4 of the Act: "disability" means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 47The Act provides that disability includes presumed disability (refer s49A). Section 49B of the Act sets out what constitutes discrimination on the ground of disability: 49B(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. ......... (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 48That disability discrimination in employment is unlawful is set out in s49D of the Act: 49D Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. .... 49Disability discrimination in education, including the issues of differential treatment and causation, was subject of consideration by the High Court of Australia in Purvis v New South Wales [2003] HCA 62 (Purvis's Case). In the parties submissions the tribunal was also referred to the decision of Justice Bell, Supreme Court of Victoria, in the matter of Collier v Austin Health [2011] VSC 344.

Discussion of law and evidence and findings 50In this matter the applicant submits that he was dismissed from his employment, on the grounds of his disability, being bipolar disorder. The applicant therefore claims that the respondent has acted in contravention on s49D(2)(c) of the Act (set out above). The applicant also maintains that he was discriminated against in not being treated as requiring medical rehabilitation/return to work plans; and through the use by the respondent of a swift termination process, instead of utilising the usual disciplinary processes available to the respondent in cases of misconduct (the applicant thereby asserts a contravention of s49(2)(a), (b) and (d) of the Act). 51The applicant maintains that a real reason for his dismissal from his employment, by the respondent, was his bipolar disorder, or his disability. The respondent maintains that the real reason for termination of the applicant's employment, was his conduct at the Royal Easter Show in April 2010, and that he was considered to no longer be a suitable person to be a firefighter because of this conduct. 52The conduct in question was that the applicant was alleged to have indecently assaulted three women at the Easter Show whilst on duty and in uniform. The conduct in question also involved allegations that the applicant was intoxicated by alcohol. He was charged with criminal offences in relation to the alleged assaults. Those offences were dealt with by the Local Court under the diversionary provisions of the Mental Health (Forensic Provisions) Act 1990 and the Order made by the Court was for ongoing treatment, including treatment of alcohol use as well as his mental illness. Much evidence in the hearing dealt with the applicant's ongoing compliance with treatment. Most of the evidence about compliance with treatment postdates the events of April 2010, although the tribunal accepts that treatment was in place prior to the respondent's decision to terminate the applicant's employment. 53It is submitted by the applicant that he was treated differently to other firefighters, by the respondent, because the respondent terminated his employment by use of clause 12 of the Regulation. It was open to the respondent, in the applicant's submission, to treat him as having a medical issue, or a substance abuse issue (alcohol) and use a disciplinary process or a rehabilitation/return to work process. 54It was conceded by the respondent that clause 12(1)(b) had only been used in one other case and Commissioner Mullins stated he had never used the provision in his time as Commissioner. 55The tribunal is satisfied that the applicant has a disability as defined in the Act. Section 4(e) of the Act provides that disability includes: (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 56The tribunal is satisfied that bipolar disorder is a disability as defined in the Act. The Tribunal also notes that it was not contested by the respondent that bipolar disorder is a disability. 57The applicant's conduct at the Easter show is not in dispute - the applicant cannot dispute the conduct as he cannot recall the events of the evening. Further, he did not contest the charges at Court and the tribunal accepts it would have been difficult for him to do so given his lack of recall. The tribunal considers that the behaviour is most serious - the applicant indecently assaulted three different women whilst on duty and in uniform at the Sydney Easter Show. At least one of the assaults was in front of the woman's children. The applicant is asking the tribunal to conclude that the behaviour was a manifestation of his bipolar disorder because he was experiencing a manic episode at the time. No direct evidence was put before the tribunal to establish that the particular conduct/behaviour is a symptom or manifestation of bipolar disorder. There was evidence that he was experiencing a manic episode. Whilst there was no direct evidence presented that the particular behaviour was a symptom of bipolar disorder the tribunal may accept, on the evidence presented, that in a manic episode a person can act impulsively, inappropriately, lose sense of boundaries and lack judgement. Dr Roberts gives evidence of his opinion that the applicant was manic at the time of the offences and "his conduct reflects disinhibition and disregard for the consequences of his conduct". 58Dr Roberts also states his opinion that the applicant's condition is complicated by alcohol abuse. The statement of one of the alleged victims (RH) is that she perceived that the applicant smelled of alcohol and was unsteady on his feet. The tribunal finds that the applicant was experiencing a manic episode of his bipolar disorder at the time of the alleged offences and it is probable that he was also affected by alcohol. The tribunal so finds on the evidence:the statement of RH that the applicant was affected by alcohol is consistent with Dr Roberts' report that the applicant drinks alcohol when manic, and Dr Roberts' diagnosis of alcohol abuse. The tribunal considers that the evidence of RH, and other evidence that the applicant was drinking alcohol, is consistent with the Consultant Psychiatrist's diagnosis and report. Further, the Court Order for Treatment demonstrates that the Court was satisfied that treatment of alcohol abuse was required in dealing with the offences, and thereby indicates the Court's view that alcohol was an issue. There is no direct evidence that the applicant was manic (such as a contemporaneous psychiatric examination) but the available evidence, including the applicant's evidence and Dr Robert's expert opinion, suggests this was so. 59The tribunal is not satisfied that indecently assaulting three women is behaviour which is necessarily part of bipolar disorder although the tribunal accepts that impulsivity, intrusiveness and lack of judgement may be present in a manic phase of bipolar illness 60The applicant asserts that his misconduct or behaviour at the Easter Show was consequent upon the mania which he was experiencing as part of his disability of bipolar disorder - the tribunal accepts that the definition of disability in s4(e) of the Act includes a disorder that "results in disturbed behaviour" as well as including a disorder, illness or disease that affects thought processes, emotions or judgement. As such, behaviour resulting from bipolar disorder may, depending on the evidence in the particular case, be considered as consequent upon disability or part of the disability. 61The centrality of this issue to the applicant's case requires the tribunal to consider the guidance provided by the High Court in Purvis's Case. That case involved a consideration of s4(g) of the Disability Discrimination Act (Cth) which contains the same wording as s4(e) of the NSW Act. The High Court also considered the requirements of s5 of the Commonwealth Act which contains similar wording to s49B of the NSW Act. Purvis's Caseconsidered whether a child who exhibited violent behaviours related to his disability (brain injury) was discriminated against when expelled from school because of the behaviour. Whether the behaviour was part of the disability was subject of much discussion in the case. However, the Court held (McHugh and Kirby JJ dissenting) that the comparator for determining whether there had been differential treatment was a person without the disability. The majority judgement ( Gummow, Hayne and Heydon JJ) stated: "Direct disability discrimination - the comparison to be made 213 Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator "treats or would treat a person without the disability" (emphasis added). The "comparator" identified by s 5(1) is "a person without the disability". 214 The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability "in circumstances that are the same or are not materially different". Recognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act. It is a comparison which is very different from the comparisons required by other forms of disability discrimination legislation...". [at paragraph 229:]" But s 5(1) does not take that further step. Rather, it requires comparison with a person without the disability, in the same position in all material respects as the aggrieved person..". 62Chief Justice Gleeson stated (at 11): It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. " 63The majority judgement in Purvis's Case stated that the comparator is a person without a disability in considering whether the treatment of the applicant by the respondent is different in the same circumstances or circumstances which are not materially different. For the tribunal to be satisfied that the applicant has established his case of disability discrimination, the tribunal is required to be satisfied that such differential treatment existed - that is, that the applicant was treated differently to a person who did not have his disability. Section 49B of the Act indicates that for the applicant to establish disability discrimination he must satisfy the tribunal on the evidence that the respondent treated the applicant less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treated or would treat a person who does not have that disability. 64The majority judgement of the High Court in Purvis's Case indicates that in determining differential treatment the comparator would be a person without a disability who engaged in the same behaviour. The tribunal finds on the evidence in this case that if a firefighter on duty at the Royal Easter Show, who did not have a disability, conducted himself in the same manner, indecently assaulting three different women whilst in uniform, the firefighter would be dismissed for misconduct. The tribunal accepts the evidence of Commissioner Mullins that he considered the conduct to be wholly inappropriate for a firefighter in uniform and to be a breach of the trust which the public places in firefighters, and for this reason he decided to dismiss the applicant as unsuitable to continue to be a firefighter. The tribunal finds on the evidence of Commissioner Mullins that a firefighter in the same circumstances as the applicant (with the same misconduct) who did not have a disability of bipolar disorder, would be treated the same as the applicant: the firefighter without the disability would also be dismissed. As such the tribunal is not satisfied that the applicant has established differential treatment and therefore he has not established discrimination in terms of s49B and s49D of the Act. 65The tribunal has carefully considered whether the use of clause 12(1)(b) of the Regulation, by the respondent, to dismiss the applicant amounts to differential treatment. Commissioner Mullins stated that he found the behaviour to be such a breach of trust and such a breach of what the community was entitled to expect in the behaviour of a firefighter, that quick dismissal was necessary and appropriate. Commissioner Mullins gave evidence that he had not previously used this clause of the Regulation, but also stated his firm view that given the serious nature of the misconduct, quick action was appropriate and so use of clause 12(1)(b) was appropriate. If the firefighter who engaged in such behaviour had been a person without the applicant's disability, Commissioner Mullin's evidence is that the same decision would have been taken by him. The tribunal had no basis to reject the evidence of Commissioner Mullins on this point. The tribunal did accept that Commissioner Mullins found the behaviour to be so unsuitable as to require instant or speedy termination of employment. 66The tribunal has also carefully considered the submissions of the parties as to differential treatment and the appropriate comparator. The tribunal has considered the reasoning of Justice Bell in Collier v Austin Health [2011] VSC 344. In the tribunal's view paragraphs 60 and 61 of the judgement are relevant. Justice Bell distinguished the particular case before him, from Purvis's Case, noting that in Purvis's Case the issue of interpretation before the court was whether the student's disability related behaviour was to be excluded from the "same or... not materially different circumstances" in which the comparison was to be carried out, carefully considering the definition of disability in section 4 of the Commonwealth legislation. Justice Bell found, at paragraph 61 in Collier v Austin Health [2011] VSC 344, that neither the result nor the reasoning in Purvis's Case required the Victorian Act to be interpreted and applied such that a claim of disability discrimination, based on refused access to return to work or rehabilitation services, on basis of the person's disability, must fail for want of a comparator. The case before Justice Bell was a case of a person with bipolar disorder who had experienced excess work pressure, and as a consequence suffered depression, in respect of which a claim for workers compensation was accepted. After a period of being off work on workers compensation payments, she returned to work on shorter hours and special duties, working on a part-time basis. The workplace went through a reorganisation and she was required by that reorganisation to work longer hours and again suffered depression and her workers compensation claim for that illness was accepted. When she wished to return to work on restricted duties, and it was agreed by her general practitioner and the hospital doctor that she was fit for a return to work on a graduated basis, the hospital refused to provide her with graduated work, or any work and terminated her employment. Justice Bellmakes a decision which is consistent with Purvis's Case in the context of the Victorian legislation and the particular facts of the case. The facts of the case involved a person with a disability who is on a return to work programme, or who is fit, willing and able to participate in a return to work programme. The decision of Justice Bell very much focused on the application of section 8 of the Victorian Act to the circumstances of an injured worker on a return to work programme. Justice Bell, on reviewing the decision of the tribunal at first instance in the case before him, noted: "the interpretation of the tribunal is not required by the decision of the High Court in Purvis v New South Wales. It is not consistent with the approach adopted in disability discrimination cases of this nature in other jurisdictions.......On the proper interpretation [of section 8] the comparator....can be a fellow worker, actual or hypothetical, who has a particular impairment which is different to hers, who is fit, willing and able to participate in the hospital's return to work and rehabilitation programme, as she was, and who is otherwise in the same or similar circumstances to her. Such a person is "someone without that attribute" for the purpose of section 8 (1)." 67The tribunal has carefully considered the decision of Justice Bell as detailed above. The tribunal considers that the reasoning of Justice Bell is applicable to the facts of the case before him, which were quite different from the facts of the present case. In the present matter, the tribunal is required to consider issues very similar to those before the High Court in Purvis's Case, which involved facts quite different to those being considered by Justice Bell. On the facts in the present matter the tribunal considers that the tribunal is bound by the reasoning of the High Court in Purvis's Case. The evidence in this matter is that after the conduct at the Easter show the applicant was immediately suspended and he did not ever return to work in his role as a firefighter. He spent a period of time on suspension awaiting determination of the criminal charges. Once the criminal charges had been dealt with by the Court then the respondent engaged in a decision-making process in relation to the applicant's future employment. It is clear that action was taken about the applicant's employment, due to the conduct at the Easter Show, as the suspension dates from the time of this conduct. The applicant's case is that he was dismissed for reason of his disability as the conduct is related to his disability. The respondent's case is that the applicant was dismissed because of the conduct and not because of his disability. The facts raise similar issues to those before the High Court in Purvis's Case. 68The tribunal considers that it is bound by the decision of the High Court and that the comparator which the tribunal is to have regard to, in determining whether there was differential treatment is, on the evidence in this case, a hypothetical comparator being a firefighter who engages in the same or similar conduct, in the same or similar circumstances, who does not have the applicant's disability. On the evidence in this matter the tribunal is satisfied that such a firefighter, without the applicant's disability, would have been treated in the same way, he would have been dismissed from his employment. The tribunal is satisfied on the evidence of Commissioner Mullins that the Commissioner would have sought to act quickly and would have used means available to him to swiftly terminate the firefighter's employment, including the use of clause 12 (1) (b) of the Regulation. The issue for the tribunal to determine is whether the respondent treated the applicant less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treated or would treat a person who does not have that disability. For the reasons discussed above the tribunal is not satisfied that the applicant has established such differential treatment on the evidence. 69Even if the tribunal was to accept that the comparator was not the comparator required by Purvis's Case (being a person with the behaviour but without the disability) the tribunal considers, as discussed below, that on the evidence the applicant has not established disability discrimination. 70If the comparator was a person with a disability, which is a disability other than bipolar disorder, who conducted himself in the way of the applicant at the Royal Easter show; for example, a person with depression, or a person with schizophrenia, or a person with a physical disability such as a broken leg, the person would, on the evidence in this matter, be terminated in their employment, because it would be the conduct and not the disability which would be the focus of the Commissioner's decision. 71The tribunal also notes that the applicant does not rely on bipolar disorder alone, but also relies on an alcohol abuse disorder, and the Treatment Order from the Court also addressed the alcohol issue. Another fireman, intoxicated on alcohol, who behaved in the manner of the applicant, indecently assaulting three different women, whilst in uniform and on duty, would in the tribunal's view be dismissed, on the evidence of Commissioner Mullins in this case. On the evidence of Commissioner Mullins the behaviour was so unacceptable that Commissioner Mullins sought to act quickly to terminate the applicant's employment. The issue of whether Commissioner Mullins should have used the Drug and Alcohol Protocol does not assist the applicant in establishing that he was treated differently on the grounds of his disability, being bipolar disorder; Commissioner Mullins was clear in his evidence that where conduct is so improper one may not even consider using the Protocol. 72Even if the tribunal was satisfied of differential treatment, the tribunal is not satisfied as to causation. The applicant needs to prove causation to establish disability discrimination: that is, the applicant must establish that one of the real, genuine or true reasons for any differential treatment of the applicant by the respondent (such as the applicant's dismissal and the respondent's use of clause 12) was his disability. The applicant must establish that a true or genuine or real reason for the respondent's actions to terminate his employment was his disability. The tribunal finds that the real reason for termination of the employment was the Commissioner's view that the applicant was not suitable to continue in the role of firefighter, because he considered the behaviour to be such serious misconduct, in the context of firefighters' holding public trust and being responsible for public safety. The tribunal notes the observations of Chief Justice Gleeson in Purvis's Case's on this point: (At Paragraph 13) However, ss 5, 10 and 22 are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In the light of the school authority's responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil's disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal's decision was the danger to other pupils and staff constituted by the pupil's violent conduct, and the principal's responsibilities towards those people. (At 14) Just as questions of causation may be affected by normative considerations arising out of the legal context in which they are to be answered, a statutory question as to the basis of a person's decision may be affected by similar considerations. There is no reason for rejecting the principal's statement of the basis of his decision as being the violent conduct of the pupil, and his concern for the safety of other pupils and staff members. It is not incompatible with the legislative scheme to identify the basis of the principal's decision as that which he expressed. On the contrary, to identify the pupil's disability as the basis of the decision would be unfair to the principal and to the first respondent. In particular, it would leave out of account obligations and responsibilities which the principal was legally required to take into account. 73The Tribunal had no reason to reject the evidence of Commissioner Mullins that he considered, because of the misconduct, the applicant to be unsuitable to be a firefighter, and that he had regard to the special trust position of a firefighter, and the role of the firefighter in emergency situations in the community. The tribunal considers that Commissioner Mullins, in his role as Commissioner of the Fire and Rescue NSW, holds a position where he is responsible for making decisions to uphold the role which the Fire and Rescue NSW plays in protecting the public in emergency situations, and that he is required to have regard to the appropriateness of the behaviour of firefighters in performing the role, and the safety of the community. On the evidence the tribunal is not satisfied that the applicant has established that one of the true, genuine or real reasons, for his dismissal from the Fire and Rescue Service was his disability. Rather, the tribunal finds that the reasons for termination of the applicant's employment included the seriousness of the misconduct in question, the breach of community trust which the misconduct represented, the impact of such misconduct on the public trust necessary to the safe performance of the functions of Fire and Rescue NSW, including ensuring public safety, and all of these considerations led the Commissioner to form the view that the applicant was not suitable to continue as a firefighter. It was the finding that the applicant was not suitable, given the seriousness of the misconduct, which caused the Commissioner to make a decision to terminate the applicant's employment swiftly by use of clause 12(1)(b) of the Regulation. 74For all of the above reasons the tribunal is not satisfied that the applicant has established that he was discriminated against, by the respondent, in his employment, for reason of his disability. Accordingly the tribunal dismisses the application.

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