Robinson v Commissioner of Police [2025] NSWCATAD 104

"Mr Robinson is not fit because, on the medical evidence, it is inherent in any return to work as a police officer that it is more likely than not that he will have a relapse into his medical condition".

1. Mr Robinson unsuccessfully appealed. The 2013 decision and the appeal, Robinson v Commissioner of Police [2014] NSWIRComm 35, will be referred to here as 'the IRC decisions".
2. Mr Robinson made several subsequent attempts to re-join the NSWPF. On each occasion, he received letters from the NSWPF stating that he could and would not be re-employed as the NSWPF, which considered the decision of the IRC decisions binding upon it.
3. Mr Robinson retained the benefit payment made to him for loss of his work as a police officer. He was able to find other employment. There was no evidence before the Tribunal of any recurrence of the PTSD or adjustment disorder with anxiety in other positions he held, including work with the Ambulance Service of NSW.
4. On 17 January 2020, Mr Robinson applied to be appointed to the NSWPF as a new recruit. He was known to the police officer who received the applications Detective Chief Inspector Lindley ('DCI Lindley') as they had attended the Police Academy together in 1990. Mr Robinson contacted DCI Lindley about his application.
5. DCI Lindley sought, and was provided with, legal advice by the NSWPF Office of General Counsel. The advice was to the effect that because of the findings of the IRC decisions, it would not be appropriate to progress Mr Robinson's application. DCI Lindley also gave evidence that he had his own concerns as to the risk of Mr Robinson suffering further psychological injury or a relapse if he were to be readmitted into the NSWPF. He wrote to the applicant stating that his application to join the NSWPF was refused.
6. Mr Robinson commenced a claim with Anti-Discrimination NSW, alleging discrimination on the grounds of disability by the respondent.
7. The applicant argues that he is not presently disabled and has recovered from his perceived or past disability. In opening the applicant's case, his Counsel stated that he has been symptom-free for seven years. The respondent argues that he has a present disability, non-symptomatic PTSD, which has an unacceptable risk of recurrence.
8. Each of these (a perceived past disability, present or presumed possible or likely future disability) constitute a 'disability' for the purposes of ss4 and 49A the Act.
9. The parties agreed that rejection of an application for employment is capable of constituting unlawful discrimination in work.

1. The applicant argued both direct and indirect discrimination had occurred in the processing of his application for recruitment. The indirect discrimination claim was evidently to be pursued by reference to the recruitment experience of others who applied for recruitment. Summonses were issued for the files of a number of others who had also applied for recruitment. The ambit of the summons was reduced by decision of the Tribunal, but approximately 50 files of others who had applied for recruitment were produced (suitably redacted). DCI Lindley was cross examined about the other applicants but ultimately the indirect discrimination argument was not fully articulated.
2. We find that indirect discrimination has not been established as it has not been demonstrated that there was any requirement or condition that was imposed which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(i) he was treated less favourably than a comparator, in this case a hypothetical comparator as no actual comparator was posited,

(ii) that at least one of the reasons for such treatment was because of, or due, or on the ground of, to his disability

1. These two requirements to provide the claim are often referred to as the 'differential treatment' and 'causation' requirements.
2. The applicant suggested that an appropriate comparator would be a person who had applied to join the Police Force and who has been previously accepted as being permanently unfit for policing duties and who has reapplied following unsuccessful litigation. The analysis of subpoenaed documents of other potential recruits that may have supported that argument was not ultimately undertaken.
3. Nevertheless, the applicant argued that he was treated differently from other applicants in that his application was terminated at an earlier stage than is usual for such applications and at an earlier stage than other applications made when he applied were decided.
4. As part of the application process, a medical examination of Mr Robinson was conducted for the NSWPF by Dr Kyriakis. It found that the Applicant's medical condition was satisfactory, although also stating that "UHG may require more recent psychiatric/psychological report. Awaiting cardiological assessment results".
5. The final medical examination did not take place before Mr Robinson was sent a letter stating that his application would not be progressed further. He was not referred for a psychiatric or other assessment. Nor did the respondent respond to his offer to obtain a further assessment. Rather he received a letter telling him that his application had been rejected.
6. The applicant argued that truncating the process to refuse the application at that point, without proceeding to obtaining usual and fuller information that was required for other potential recruits, constituted disability discrimination. It was "not an ordinary process". The applicant argued that the "usual process" where an applicant had a past disability, would have been to suggest further expert examination. He ought to have been referred for a physical and also psychometric assessment, usually conducted by a psychiatrist. That did not occur before the application was terminated, based on the comments by Commissioner Newell in 2013 and Full Bench of the Industrial Relations Commission in 2014.
7. In its Points of Defence, the respondent denied that the applicant had been discriminated against. In opening, the respondent's counsel, Mr Saunders, stated that he relied upon the inherent requirements of the position, a superior legislative duty for workplace health and safety, issue estoppel in relation to the IRC decisions and the terms of the IRC decision and orders.
8. The refusal of Mr Robinson's application by DCI Lindley was stated, in his affidavit of 21 June 2021 at paragraph 31 to be on the following basis and for the following reasons:

"Taking into account the advice provided by the Office of General Counsel and based on my understanding of the IRC Decisions, I decided to decline Mr Robinson's application on the basis that I had serious concerns that Mr Robinson would reaggravate his previous psychological condition and expose the Commission of Police to further litigation. I was also mindful of the fact that the letter sent to Mr Robinson on 16 May 2014, which had been provided to me by Ms Chan noted that Commissioner Newell found that there was a real risk that Mr Robinson may experience a relapse of his previous psychiatric condition. I was concerned that if he were to be reappointed to the NSWPF and this relapse occurred while he was on duty this would pose significant safety risks to him, his colleagues and the public. For example a relapse could occur at any time while he was on duty. The inherent requirements of a constable of police role include carrying a firearm, attending a range of incidents from shop lifting to fatalities and suicide, and working with a range of personalities both within the NSWPF and the public. I considered that based on what I understood from the IRC Decisions and the inherent requirements of the role of a Police Officer, there was too great a risk in allowing Mr Robinson to be appointed to the NSWPF. "

DCI Lindley had a subsequent conversation with the applicant in which DCI Lindley stated in his affidavit of 24 June 2021 at paragraph 33 that:

"Look, I've seen the decisions from the IRC. The Commission said there's no way you can come back".

1. In cross examination DCI Lindley stated that the legal advice he received was the IRC decisions "said he was never to be employed by the New South Wales Police Force again in any capacity, that, in my mind, null and voided any medical evidence that may or may not be in existence, and was certainly sufficient evidence for me to fail his application at that point."
2. On one view, this indicates that the applicant was treated differently from other applicants in that medical evidence of his fitness was not fully considered in its own terms, rather was, in effect, overridden by statements in IRC decision of Commissioner Newall in 2013 and by the Full Bench of the IRC in 2014 and the assessment of DCI Lindley.
3. The applicant argued that the appropriate comparator was a person tor was a person without the disability.
4. The respondent argued, on the authority of Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 ('Purvis')at 224 that the correct hypothetical comparator's features had to include the fact that the applicant was paid $545,067.61 as compensation for the loss of his career as a police officer, had never sought to repay that amount and had been determined by the NSW IRC not to be suitable for re-appointment as a police officer or in any other role in the NSWPF.
5. As stated in Purvis at 160 - 161, the relevant circumstances must be considered. We reject the argument that matters of retention of compensation or findings in another jurisdiction formed part of the 'relevant circumstances' with which a comparator must contend. Rather, in this case the relevant circumstances concern the nature of the past disability and presumed present or future disability.
6. The relevant comparator is a person without the past and presumed disability of the applicant. That is consistent with the reasoning in Purvis, where the conduct of a child with a disability who was violent in the classroom was found to be the real issue against which the conduct of, and treatment accorded to a child without the disability but who was violent in the classroom should be measured. In other words, the point for comparison is the real issue in dispute, rather than collateral matters. In Purvis the real issue was the violent conduct of the child in the classroom and in this case the real issue is the actual or presumed psychological disability of the applicant, whether PTSD or other psychological condition.
7. Thus, in this case, the applicant was treated in the way he was, with his application terminated, because of his past, actual or presumed present or future disability: Purvis at 163.
8. The respondent argued that the applicant failed to provide that he had been treated less favourably than a hypothetical comparator on the basis of his disability because it was the legal advice that led to termination of his application, rather than termination of the application due to his disability.
9. We do not accept this. The legal advice given was advice given regarding the effect of the previous and presumed disability of the applicant. The advice centrally concerned that disability. In addition, DCI Lindley made his own assessment of the risk in employing the applicant.
10. We find that the refusal of the application of the applicant was due, at least in part, to the legal advice that DCI Lindley received and was differential treatment of the applicant due to his previous and presumed disability, in that his application was prematurely refused, without the benefit of a fuller medical examination of his suitability for the position.
11. We find that refusal of his application prior to full medical examination constituted less favourable treatment than the treatment of others who applied for employment with the respondent, on the basis of his past and presumed disability.

1. A defence of the respondent is that the applicant would not be able to carry out the inherent requirements of a police officer in the NSWPF. Those requirements were set out in a document entitled "Advice on the inherent requirements for the Associate Degree in Policing Practice (ADPP) and Operational Policing Duties (CB163 of 1182).
2. The respondent argued that employment of the applicant as a police officer presented too significant a risk to the safety and wellbeing of Mr Robinson and those around him and working with him to offer him a position again as a police officer. They argued that they had a superior legislative duty to ensure workplace health and safety that was recognised under s54 of the Act and that the defence of 'inherent requirements' permitted such decisions. The respondent accepted that it bore the onus of establishing each of those defences. It relied particularly on the evidence and professional opinions of Drs Vickery and Dr Parmegiani.
3. Section 49D(4)(a) of the Act provides that it is not unlawful as contrary to s49D(1)(b) of the act if:

"taking into account the person's past training, qualifications and experience relevant to the particular employment..., and all other relevant factors it is reasonable to take into account, the person because of his disability would be unable to carry out the inherent requirements of the particular employment."

1. During the hearing, both parties presented evidence as to whether or not the applicant could have worked as a police officer in light of his medical history, but for termination of his application.
2. The applicant presented evidence that he had recovered from his previous disability and was resilient enough to assume policing duties without relapsing or that he no longer had a significant risk of relapse. He had successfully worked in several other roles since leaving the employ of the respondent, including stressful roles such as that of a paramedic ambulance officer.
3. At the time of Mr Robinson's application for re-employment, made on 16 January 2020, the medical reports that were before those tasked with accepting applications for the NSW Police were only those obtaining in the course of the application.
4. A medical report from Dr John Kyriakis, who examined and assessed Mr Robinson on behalf of the respondent on 29 January 2020, found that Mr Robinson was capable of performing operational policing duties and the associated training. In answer to the question 'Does the applicant have any medical disorders which would significantly increase their risk of work-related disease or injury?' he replies, "some increased risk" and "Hy of lumber discectomy 2012 - good recovery - PTSD 2010 - good recovery. In answer to the question 'Is further information required to make this assessment?" Dr Kyriakis replied "Yes. Note enclosed medical reports. UHG may require more recent psychiatric/psychological report. Awaiting cardiological assessment results" (CB178 of 1182).
5. It was after that, on 30 January 2020 that the applicant was advised orally by DCI Lindley that his application was unsuccessful on the basis that he was unfit as set out in the IRC decisions and this was later communicated to him in writing.
6. During the hearing, differing expert evidence was presented as to the diagnosis of Mr Robinson's conditions, prognosis and whether or not there was a likely risk of relapse.
7. Dr Samuel, whose reports dated 5 October 2022 and 1 November 2022 were tendered by the applicant as Exhibits 5A and 6A (CB708-721), was cross examined. He had extensive experience in Western Australia working with Defence Force, Police, ambulance officers and surf lifesaving personnel. He examined the applicant once for 20 minutes on zoom. His opinions were mainly as to the likely extent of risk the applicant would have, arising from his having had PTSD.
8. Dr Samuel stated in cross examination that, from the written documentation with which he had had been provided as to the applicant's history, he accepted that the applicant had been afflicted by severe PTSD in the past, in 2008-9, and from July 2010. He also accepted that it is possible to recover from that condition and to be able to return to work in many cases. With appropriate treatment, he said that it is possible for people to experience growth and recovery.
9. In Dr Samuel's view, risk is very individual. When asked about the risk of the applicant returning to policing, he stated that he would consider that 85% of any risk was a matter of assessing the individual and about 20% could be ascertained from the scientific research. He agreed that he could not say that the applicant had a higher or lower risk than any other recruit. He disagreed that the severity of the previous PTSD was the primary matter to be considered in assessing present risk and said that it was only one of a number of factors. He stated that severity of previous PTSD was the best predictor of future PTSD only in about 10% of persons. For most people, it was not.
10. A report from Dr Zhen Zhang, Psychiatrist, dated 10 July 2013 (CB 1046 - 1053) was relied upon by the applicant. Dr Zhang formed the opinion that Mr Robinson had adjustment disorder with mixed anxiety and depressed mood, rather than major depression, because his anxiety and depressive symptoms occurred in response of identifiable stressors, particularly the conflict with a particular superior officer. The reconciliation with that officer contributed significantly to Mr Robinson's mental health recovery, in Dr Zhang's view. In his view, Mr Robinson should be able to have a gradual return to his previous operational police duties. No updated report from him was available, but his report points to Mr Robinson being able to perform police duties in the future.
11. Dr Smith's report was admitted into evidence and relied upon by the applicant, but he was not cross examined as he died prior to the hearing. Accordingly, the weight that is given to his report is limited by the inability to cross examine him.
12. There were other reports relied upon by the applicant, such as the reports of Ms Sharman, referred to below.
13. The respondent relied particularly on the report of Dr Graham Vickery dated 19 February 2023, Exhibit R9 at page 3, which concludes that:

"There is a significant likelihood of a relapse of his Post Traumatic Stress Disorder and Major Depression with the inherent stressors in undertaking employment as a Police Officer with NSWPF" and

"..the likelihood of Mr Robinson suffering a further relapse on return to any type of Police duties would be both unavoidable and indisputable".

"It's certain that the risk will come home, it's only a question of when". If he were to return to policing duties. He was not shaken on that view in cross examination.

1. Dr Vickery had an extensive history of dealing with police officers in NSW with PTSD over many years.
2. In evidence were a number of medical reports about Mr Robinson dating back to 2008. Some reports stated that he had had a depressive illness, others that he had PTSD. The Industrial Relations Commission proceedings accepted the evidence of Dr Julian Parmegiani, a Consultant Psychiatrist, that Mr Robinson had suffered a major depressive illness in or around November 2008 and that in mid-2010 he had suffered a relapse of this disorder, there he had a vulnerability to suffering such disorders and due to the stressful nature of policing "he is more likely than not to experience a relapse of his major depressive illness if he returns to work as a police officer "and that such risk "is real and foreseeable".
3. There was, at the time of the Industrial Relations Commission proceedings, medical evidence from Dr Tilmann Rust, the applicant's doctor, as follows:

"He was previously medically discharged in June 2011 on the grounds of a medical condition (Adjustment disorder with anxiety). He has had extensive treatment for this condition by a psychologist and his symptoms have resolved. I am confident he is able to return to full duties since the causative issues have also been dealt with."

1. Thus, as can be seen from the above, the diagnosis of, and prognosis for, Mr Robinson's condition or conditions was contested by medically qualified persons. This continued to be the case over the years: was it PTSD, Adjustment disorder with anxiety (Dr Rust, Dr Smith and Dr Zhang) or a Major Depressive Illness (Dr Parmigiani) or Major Depressive Disorder which precipitates his activation of his chronic Post-Traumatic Stress Disorder" (Dr Vickery)? That may make a difference as to the prognosis of the condition. Dr Jeff Bartucen, Consultant Psychiatrist, assessed Mr Robinson on 31 January 2011 and stated in his medical report of 31 January 2011 (CB1035 - 1045) that at that time Mr Robinson had Post Traumatic Stress Disorder. Dr Susan Sharman, Psychologist, assessed him on 29 August 2012 (CB1054) after 35 sessions of treatment with herself, as having "no indicators of depression, anxiety or post-traumatic stress".
2. There was no suggestion in the Points of Claim or evidence of the applicant that if the applicant were accepted into the employ of the NSWPF he would require any special services of facilities for the purposes of s49D(4)(b), rather it was argued that he was fit to undertake usual police duties.
3. There was also a contest, with differing clinicians holding differing views as to whether the previous disability of the applicant meant that there was a real and appreciable risk that the applicant may or would relapse, given the pressure of police work.
4. The applicant argued that he has been employed in occupations since leaving the NSWPF that are stressful, particularly his work with Ambulance NSW as a paramedic. However, there are some significant differences between the work of a Police Officer and the work of an Ambulance Paramedic: notably, paramedics do not carry firearms, so do not have the possibility of administering lethal force through use of firearms. They are not usually in the position of having to subdue angry crowds. Whilst their duties may involve stressful situations, including at times having to control behaviour of aggressive and even psychotic people, the context and likely numbers of persons to be subdued at any given time is quite different from the situations in which the police are called upon to perform such duties.
5. As Dr Vickery noted in cross examination, Ms Sharman's view was that the condition was triggered by a number of unresolved traumatic events. We find that there is a likelihood that this condition could recur in the future, even without the applicant being fully aware that such a build-up of traumatic events was occurring, until it manifested in symptoms. The psychological condition recurred once in the past and was very disabling for the applicant when it did recur.
6. We find that such a possibility or likelihood is sufficiently real that the applicant would not be able to carry out the inherent requirements of the position of Police Officer.
7. It is not necessary to determine whose medical opinion should be preferred to reach that finding, but if it were necessary, we would prefer the view of Dr Vickery, given his extensive experience with police officers in NSW.

1. In addition to the defence of 'inherent requirements' the respondent argued that pursuant to s19 of the Work Health and Safety Act 2011 (NSW) it was necessary not to progress the applicant's application for appointment as a Police Officer in order to ensure the health and safety of the applicant and other members of the NSW Police Force. Section 19 (1) - (3) of the Work Health and Safety Act 2011 (NSW) states as follows:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of--

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable--

(a) the provision and maintenance of a work environment without risks to health and safety, and

(b) the provision and maintenance of safe plant and structures, and

(c) the provision and maintenance of safe systems of work, and

(d) the safe use, handling, and storage of plant, structures and substances, and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.......

1. The argument of the respondent is that Mr Robinson's risk of relapse, potentially in a dangerous and/or stressful situation, places himself and others in danger and that the duty of the employer is to ensure the safety of all workers, "so far as is reasonably practicable."
2. The inherently stressful nature of policing is, on one level, obvious. The Advice on the inherent requirements of the Associate Degree in Policing Practice and Operational Procedure (found in several places in the evidence, one of which is CB163) sets out the requirements, which include administrative and general requirements, driving, to communicate proficiently, physical requirements, observations and memory skill, resilience and adaptability and personal qualities. At a more detailed level, these include "Undertake operational patrols, respond to situations to enforce laws and/or maintain public order, exercise police powers", "Exercise authority and give directions, coercive force when necessary, tolerance and reasonable firmness and discretion", "apply discerning judgment in the application of police powers and use of appointments ( eg handcuffs, batons, capsicum spray and firearm)", "Manage a wide range of persons who are placed in care, detained in custody or require assistance ...Uiltise appropriate communication, practical and physical skills in order to protect persons from harm or further casualty and to deal with uncooperative/aggressive people", "physically restrain individuals and utilise self-defence techniques when necessary" "handcuff someone resisting arrest" "Engage in self-defence" "Withstand physical assault from another person," "Physically restrain a person", "Wrestle with a person" ,"Fire a handgun whilst on duty", "perform crowd control at community events/demonstrations", "Perform shifts of varying duration and extended duration, day and night, any day of the year", "Adapt to regular shift change-over and protracted investigations not conducive to regular breaks", "an ability to operate effectively in stressful and physically demanding situations".
3. There are extensive responsibilities and powers involved in policing, including the use of coercive force through physically restraint, handcuffs, use of batons and firearms. The possibility of having to control demonstrations and angry mobs (which triggered significant disability for Mr Robinson some years after the 2001 events) is a reality.
4. In police work, there is a need for teamwork with others, without which they could be in mortal danger from any lapse of judgement or inability to cope by a colleague. The consequences of any relapse in a situation of intense stress and/or vulnerability could be catastrophic, for Mr Robinson and/or for those around him, both co-workers and members of the public.
5. The risks inherent in policing can be physically and/or psychologically highly demanding and exhausting. They are grave, can arise unpredictably, can be prolonged and may require almost instantaneous judgments as to relative risks and strategies. The consequences of a team member being unable to cope in such a situation, which could arise fairly suddenly within a person, cannot be understated.
6. There are also significant differences in the professional expert views of qualified medical professionals as to the diagnosis, prognosis and possibility of relapse of Mr Robinson's condition or conditions. Even if a risk is slight, the consequences of such a risk eventuating could be grave, a matter that needs to be taken into account in considering the risks.
7. For the above reasons, and despite the other professional work undertaken by Mr Robinson since leaving the NSWPF, including working as a paramedic with the Ambulance Service of NSW (which does not involve carrying firearms and has a different focus), we are satisfied that the defences of inability to meet the inherent requirements of the position and a duty under the Work Health and Safety Act 2011 (NSW) have been made out and are established.

1. The respondent also argued that there was an issue estoppel binding the parties as these matters had been argued in the IRC proceedings by the same parties. We reject that argument, in light of the fact that what was in issue in the IRC proceedings was re-instatement, whereas what is in issue in this case is a fresh application for employment that was made some years later. That carried with it the possibility of changed circumstances in the intervening period of time, which need to be carefully assessed.

(2) Any application for costs is to be filed within 14 days of this decision, with submissions in support of such application.

(3) Any submissions in response to such application are to be filed within a further 14 days.

(4) Both parties are asked to indicate whether, in their view, the question of costs can be determined "on the papers" without the need for a further hearing.

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.