Wright v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2013-05-27

The Applicant's identification of the requirements 21In relation to the first complaint, the Applicant identified the requirement as being required, on 11 April 2011, to attend work from 18-21 April 2011 and from 27-29 April 2011. The background to this "requirement" was that in late 2010 or early 2011 the Applicant had applied for and was granted leave for the first week of the Easter school holidays (Monday 11 to Sunday 17 April). The Applicant claims that by virtue of the parenting agreement he was required to have parental responsibility for his children from 18 April 2011 to 29 April 2011, the last day of the school holidays. 22In relation to the second complaint, the Applicant identified the requirement as being required on 16 April 2011, to attend work from 18-21 April 2011. The background to this requirement is that on or about 15 April, after the roster had been issued, the Applicant applied for extended leave (also known as long service leave) for the period from 18-21 April 2011. The Respondent refused that application on 16 April 2011 and required him to attend work on those days. 23In relation to the fourth complaint, the Applicant identified the requirement as being required on or about 14 April 2011 and again on 14 May 2011 to attend work between the hours of 9am and 7pm for the period from 20-22 May 2011. The background to this requirement was that in early January 2011 the Applicant applied for "rest and recurrent leave" for 20-22 May. That application was refused, the roster being posted on about 14 April 2011. On 14 May 2011 the Applicant applied for extended leave for those dates. That application was also refused in relation to 21-22 May but allowed in relation to 20 May 2011. 24In relation to the sixth complaint, the Applicant identified the requirement as being required on 26 October 2011, to attend work from 26 December 2011 to 15 January 2012. The background to that requirement is that on 19 August 2011 the Applicant applied for recreation leave for that period. On 26 October 2011 the application for leave was refused. 25The Applicant also complained that various kinds of disciplinary action which followed his non-attendance at work on 18-21 April 2011, 21-22 May 2011 and 26 December 2011 to 15 January 2012, also constitute indirect discrimination.

Consideration of the requirements 26The Applicant has formulated the four requirements in a way which makes them applicable only to him. No other police officer either at the Hillston police station or in the wider Griffith LAC was rostered to work at exactly the same times as him. If the Tribunal found that these were the requirements for the purpose of s 49T(1)(b), the Applicant's complaint would fail because he would not be able to prove the disparate impact element of indirect discrimination. In order to establish disparate impact, the requirements must be crafted in a way which ensures that they apply to a wider group or pool of people than just the Applicant. 27There were three police officers at Hillston during most of the relevant period: the Applicant, Sergeant Ryan and Senior Constable English. The Applicant attached a copy of the roster that was posted on 14 April 2011 to one of his affidavits. That roster applied to all three police officers at Hillston and five other police officers in the Griffith LAC. We assume that this version of the roster is an incomplete copy of the full roster for the whole of the Griffith LAC. Our understanding from the evidence of Superintendent Rowan, the Commander of the Griffith LAC, is that the rosters that were posted applied to all police officers in the Local Area Command. 28Each roster, which covers a period of six weeks, reflects multiple decisions about each police officer's applications for leave. The provision of a roster reflecting those individual decisions is not a requirement that applies to all police officers at Hillston, or to all police officers in the Griffith LAC. 29The Applicant said that another way of expressing the requirements is that the Respondent required him to attend work as rostered regardless of his particular carer's responsibilities. The qualification to the requirement that it has been imposed "regardless of carer's responsibilities" is unnecessary. The effect on people with and without carer's responsibilities is to be measured by the disparate impact and non-compliance elements of indirect discrimination. It is not part of the requirement itself. Another alternative formulation, "that the Applicant attends work as rostered or faces disciplinary action", is also unnecessary. The consequences of imposing a requirement are relevant to the test of unreasonableness - they are not part of the requirement itself. 30In another part of the Applicant's submissions, the requirements were described more generally as requiring the Applicant to comply with the roster that the Respondent determined on particular days. Using that formulation, the first complaint would be that the requirement is to attend work on all the days in the roster period, not just 18-21 April and 27-29 April 2011. In our view that is a formulation of the requirements which is consistent with the Applicant's case and the legislation. We find that the requirement is "to attend work in accordance with the roster that is posted or current on a particular day." For the first complaint, that day is 11 April 2011; for the second complaint it is 16 April 2011; for the fourth complaint it is 14 April and 14 May 2011 and for the sixth complaint it is 26 October 2011.

Disciplinary action 31The Applicant submitted that the disciplinary action which followed his non-attendance at work on 18-21 April 2011, 21-22 May 2011 and 26 December 2011 to 15 January 2012, also constitutes indirect discrimination in breach of s 49V(2). According to the Applicant, the disciplinary action would not have been taken if the Respondent had not imposed the requirement that he attend work on the days when he did not attend. The Applicant also submitted that the circumstances in which the disciplinary action was taken goes to the reasonableness of the imposition of the requirements. 32No doubt the Respondent has subjected the Applicant to "a detriment" by disciplining him. But to substantiate his complaint the Applicant must prove not only that the Respondent has subjected him to a detriment but that, in doing so, it has discriminated against him. For indirect discrimination, the unlawful conduct must be the imposition of a requirement. Section 49T(1)(b) defines indirect discrimination as the imposition of a requirement which has a disparate impact and which is unreasonable. The consequences of imposing a requirement do not amount to separate breaches of s 49V(2). Nor do the circumstances in which the disciplinary action was taken affect the reasonableness of the requirements. The unreasonableness element of indirect discrimination relates only to the requirement as formulated. 33Because the Applicant did not formulate any separate requirements in relation to the disciplinary action, the only possible relevance of the disciplinary action is to any remedy to which the Applicant may be entitled. If the Applicant's complaints of indirect discrimination are substantiated, he would have to prove that the imposition of one or more of the requirements "materially contributed" to subsequent damage or loss: Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22. 34The complaints of indirect discrimination in breach of s 49V(2) of the AD Act in relation to the disciplinary action taken by the Respondent as a consequence of the Applicant's non-attendance at work on various occasions are not substantiated.

The connection 35In accordance with s 49V(2), the requirements must be "within" the terms or conditions of employment: New South Wales v Amery (2006) 80 ALJR 753 at [66] (Gummow, Hayne and Crennan JJ). We are satisfied that the requirement to attend work in accordance with the roster as posted or as applicable on the nominated days is, itself, a term or condition of employment with the NSW Police Force.

Non-compliance 36The Applicant must establish that the requirements are ones with which he "does not or is not able to comply." The Applicant's case is that his responsibilities as a carer, together with the decisions of the Respondent, prevented him from complying. There is no need for the Applicant to prove that he is unable to comply with the requirements because of his responsibilities as a carer: Australian Medical Council v Wilson (1996) 68 FCR 46 at 80; Cf Disability Discrimination Act 1992, s 6(1). The provisions of the AD Act do not require the applicant in a case of indirect discrimination to prove that there is any causal connection between his or her inability to comply and his or her responsibilities as a carer. (We note that Spencer v Greater Murray Area Health Service [2005] NSWADT 138 at [43] to [50] is authority to the contrary but we respectfully disagree with the Tribunal's view as expressed in that case.) 37The requirements are not requirements with which the Applicant "does not comply." There is nothing intrinsic to the Applicant or his circumstances which means that he does not comply with the requirement to work in accordance with the roster that is posted or current on the nominated days. An example of a situation where a person does not comply with a requirement is where the requirement is that a person is a certain height to obtain employment and the person is not that height. 38The Applicant conceded that he "would not" comply with the requirements. Because contact with his children was so limited, any expectation that he should have arranged for others to care for his children was not acceptable to him. He said that he believed he could not refuse to care for them. The question is not whether the Applicant "would not" comply with the requirement, it is whether he "is not able" to comply. That question is to be determined objectively, not only in accordance with the Applicant's preferences or what he regarded as necessary or reasonable. 39Whether or not a person "is not able to comply" with a particular requirement is a question of fact in each case and will depend on all the circumstances. The notion of compliance is not to be construed literally. Inability to comply must be determined in a practical, not a technical, sense. While the Sikh student in Mandla v Dowell Lee [1983] 2 AC 548 could technically comply with a requirement not to wear a turban while in school uniform, he could not comply in a practical sense because wearing a turban was part of his culture. 40In determining whether the Applicant was able to comply with the requirements, the precise terms of the requirements must be kept in mind. The requirements are to attend work in accordance with the rosters as posted or as current on 11 April, 14 April, 16 April, 14 May and 26 October 2011. The 11 April roster, which is the subject of the first complaint, covered the six week period from 17 April to 28 May 2011. The Applicant attended work on every day he was rostered apart from 18-21 April. Corresponding findings apply to the other rosters. 41The requirements are expressed at a high level of generality. They are requirements to attend work as rostered, not specific requirements to attend work on a particular day. The requirements are a term or condition of employment that apply to all police officers in the Griffith LAC. 42The Applicant submitted that his situation is analogous with the situation in Clarke v Catholic Education Commission (2003) 202 ALR 340 which he says is a case of "partial" compliance. In that case Madgwick J found that a requirement with which a student could not comply constituted indirect discrimination. On appeal Tamberlin J held that it was open to Madgwick J to find that the condition required a profoundly deaf student to participate in and receive classroom instruction without the assistance of an Auslan or sign interpreter: Catholic Education Office v Clarke (2004) 138 FCR 121 at [14]. At first instance Madgwick J held that compliance with a requirement "must not be at the cost of being thereby put in any substantial disadvantage in relation to the comparable base group": Clarke, at 352-353 [49]. That approach was also adopted by the Full Federal Court in Hurst v State of Queensland (2006) 151 FCR 562, 580 [106]. In that case the requirement was that a student be taught in English without signing or Auslan assistance. In determining whether the student complied with that requirement, the issue was whether she suffered serious disadvantage by being taught in that way. 43The disability discrimination cases stand for the proposition that if an applicant experiences serious disadvantage or hardship in complying with a requirement, that may mean that the person is, in a practical sense, unable to comply with the requirement. These are not cases of "partial" compliance, they are cases where a person is unable to comply with the whole requirement because of the effect that compliance will have on that person. Similarly, in the Applicant's case, if the effect of complying with the whole of the requirement is that he experiences serious disadvantage or hardship, it may be that, in a practical sense, he is not able to comply. 44In determining whether the Applicant would experience serious disadvantage or hardship by complying with the requirements, the Tribunal must take into account the terms of the parenting agreement and the Applicant's entitlements to paid leave. The detail of the decisions the Applicant made to apply for leave at various times and the decisions the Respondent made in response to those applications, are too specific to be taken into account when considering whether the Applicant is able to comply with such a general requirement. 45In our view, the Applicant was not unable to comply with the requirements. The Applicant acknowledged that the parenting agreement did not impose any fixed obligation on him to have the care of his children. It does not, for example, require him to look after his children during any particular week of the school holidays - it entitles him to spend time with them during "one half of each school holidays to be determined by agreement." While we accept that the Applicant has a prima facie entitlement, as against his former wife, to spend time with his children in accordance with the agreement, he has no obligation under the parenting agreement to care for his children personally at any particular time. 46Theoretically, the Applicant's leave entitlements were sufficient to allow him to take advantage of the arrangements under the parenting agreement. The entitlements of police officers to leave are regulated by the Police Regulation 2008 (NSW) Part 6, the Crown Employees (Police Officers - 2009) Award and the Griffith Local Area Command Business Rules (Revised 1 July 2010). The Award provides for at least a dozen different kinds of leave including annual leave, extended leave (long service leave) and leave without pay. The Applicant was entitled to seven weeks annual leave per year. One "rest and recurrent leave" day is given per month for officers working a 38 hour week. He was also entitled recurrent/rest leave of six days per month. 47While there was a leave embargo during April 2011, we are not satisfied that the Applicant was unable to comply with the requirements to attend work as rostered, or would have suffered serious disadvantage or hardship in complying, because of the level of his leave entitlements or any general restrictions on the periods in which leave could be taken. Those entitlements would, theoretically, have allowed him to spend time with his children in accordance with the parenting agreement. 48In case our interpretation of the non-compliance element of indirect discrimination is incorrect, we will examine in more detail the way the Respondent determined applications for leave, the decisions the Applicant made to apply for leave at various times and the decisions the Respondent made in response to those applications. 49The guiding principle in relation to leave is that while taking into account the exigencies of the Police Force, the Commissioner must, as far as practicable, deal with the application in accordance with the officer's wishes. Regulation 96 provided: Applications for leave (1) An application by a member of the NSW Police Force for leave under this Part is to be made to and dealt with by the Commissioner. (2) The Commissioner, in dealing with any such application, must have regard to the exigencies of the NSW Police Force, but as far as practicable is to deal with the application in accordance with the wishes of the member. 50This provision does not give a definitive answer to the question of whether leave should be granted in a particular case but it indicates that the person's desire for leave should be met unless it is not practicable or the exigencies of the NSW Police Force suggest otherwise. Regulation 96 says nothing about resolving competing applications for leave from more than one officer. Superintendent Rowan's evidence was that where officers selected the same dates, conflicts were generally resolved by negotiation between the officers involved. If a conflict could not be resolved, Inspector Dunlop, the Duty Officer for Human Resources, would determine who should be given leave. 51Clause 3 of the Business Rules covers annual leave for the LAC. It is prefaced with the following statement of policy: The planning and taking of annual leave is crucial to the proper management of the Command. Leave must be fair and equitable across the board and as a result business rules have been implemented to ensure this occurs. 52It goes on to make certain restrictions in relation to annual leave: - Easter is a no leave period across the Command. This no leave period commences 1 week before and one week after the Easter Weekend. - Restrictions as to the amount of staff on leave at the same time will be enforced ... - Reference will be made to previous years leave Calendar to ensure fairness over holiday periods. - Hillston/Northern Cluster - only one officer off at any one time. 53The first restriction is known as the "Easter leave embargo". In 2011 the Easter Leave embargo covered the period 17-30 April 2011. Superintendent Rowan explained that officers could not request annual leave or extended leave during that period but other kinds of leave could be approved including rest and recurrent leave. 54In September or October each year, officers in the Griffith LAC are asked to nominate eight weeks of preferred leave for the following calendar year. Any applications for extended leave, which accrue after 10 years of service, are to be approved by Superintendent Rowan. During the September/October 2010 annual leave nomination period the Applicant nominated the following periods of leave: (1) 10-17 April 2011 (the first week of the school holidays and the week preceding the Easter leave embargo); (2) 10-15 October 2011; and (3) 4-24 December 2011. 55In early May 2011, the Applicant applied for and was granted extended leave for the first two weeks of May 2011. 56The Respondent's case was that if the Applicant was not able to comply with the requirements, then that was largely because of his own poor organisational skills, failure to communicate effectively with his former wife and lack of foresight. The Applicant's case was that it was the Respondent's unfair decisions about his applications for leave that meant he was unable to comply. 57In relation to the first complaint, one of the reasons the Applicant says he was not able to comply with the requirement to work as rostered was what he refers to as a "mix up" with his former wife. Towards the end of 2010, the Applicant applied for annual leave for the first week of the Easter school holidays in 2011 (10-16 April 2011). That leave was confirmed on 8 November 2010. The Applicant says he applied for leave for the first week of the holidays because he realised that the following two weeks were a "leave embargo" period when recreational leave would not be approved for operational reasons. But in oral evidence the Applicant said that he nominated that week because he believed it was the second week of the school holidays. 58We find that the original reason the Applicant gave in his affidavit to be more plausible. He said in that affidavit that he believed he had re-negotiated with his former wife to swap the weeks so that he would have the children in the first week of the holidays. An email from his former wife states that it was her recollection that there had never been such a prior arrangement. It was her understanding that the Applicant was to have the care of the children in the second week of the holidays commencing on 18 April 2011. 59We are satisfied that the Applicant originally requested the leave in the first week of the holidays because of the leave embargo. He did not realise that he had not told his former wife that this was his plan until she told him on 27 March 2011 that she was expecting him to look after the children in the second week. She said she had made other arrangements for the children in the first week of the holidays. 60On 28 March 2011, the day after discovering the mix-up, the Applicant sent an email withdrawing his application for the first week of the holidays (11-18 April) and requesting that he be re-rostered to work that week. He also requested leave for the second week (18 to 29 April) so that he could care for his children. Part of this leave fell within the embargo period. 61The Applicant received no immediate reply to his 28 March 2011 email and emailed again on 7 April. On 10 April 2011 Inspector Thorp, the Human Resources Duty Officer for the Griffith LAC, told him that his application had been refused because of the leave embargo. Inspector Thorp explained that he had tried to accommodate his wishes but it could not be done without having an adverse effect on the whole Hillston roster. On 11 April the Applicant received a copy of the roster requiring him to work on Monday 18 April 2011 to Thursday 21 April 2011 and from Wednesday 27 April 2011 to Friday 29 April 2011. The Respondent says it accommodated the Applicant by granting him "rest or recurrent leave" days from Friday 22 April to Tuesday 26 April (the Easter weekend). 62The second complaint is that on 15 April, having had his application for a change to his annual leave rejected, the Applicant then applied for extended leave (long service leave) for the period 27 to 29 April. At this time he thought he may be able to get assistance from his mother and a friend to cover the rostered shifts on 18 to 21 April and so he did not apply for leave for those dates. 63On 15 April 2011 Superintendent Rowan approved the Applicant's request for extended leave from 27-29 April 2011, but around the same time, the Applicant decided not to ask his mother for assistance in relation to 18 to 21 April 2011. Again, around 15 April 2011, the Applicant applied for leave from 18-21 April 2011. 64On 16 April the Respondent refused the request for leave and advised the Applicant that if he did not attend work he would be dealt with "in accordance with the policy governing this action." He phoned Inspector Thorp on the morning of 18 April to let him know that he could not attend as he had to look after his children. At that time, there was still the possibility that the Applicant's friend may have been able to look after the children on 21 April 2011. On 19 April, the Applicant found out that his friend could not look after the children on 21 April. The Applicant phoned Griffith LAC and told them he would not be able to attend work on 21 April. 65In relation to the fourth complaint, the Applicant applied in early January 2011 for three rostered days off for the period 20-22 May 2011. This was a weekend that the Applicant wanted to have off to spend with his children in accordance with the parenting agreement which entitled him to every fourth weekend with them. Despite that application, the Applicant was rostered for duty on all three days from 9am to 7pm. 66On 9 May the Applicant approached his direct supervisor, Sergeant Ryan, about this issue and was told he should try to swap shifts with other officers. The Applicant approached two other officers in the Northern Sector of the Griffith LAC, Senior Constable Waibel and Senior Constable Cumming, both of whom were unable to assist. 67On about 13 May 2011 the Applicant applied to take extended leave on 20-22 May 2011. He pointed out that he had applied for that weekend at the beginning of the year. On 17 May the Applicant's application was refused but the Respondent allowed him to have leave on Friday 20 May 2011. 68The Applicant said he believed that he could not refuse to care for his children that weekend. He also said that he could not find anyone else to care for his children. He did not attend work during that weekend and stayed in Yass with his children. 69In relation to the sixth complaint, the Applicant applied for recreation leave from 26 December 2011 to 15 January 2012 on 19 August 2011. The Applicant had arranged to care for his children during that time. That application was refused. The Applicant says that he emailed his former wife on 15 September 2011 to try to negotiate an alternative arrangement. She said that she could not change her plans. 70On 16 September 2011, the Applicant emailed Inspector Thorp about the matter asking for consideration and noting the background to his application and that he would try to organise child care from family or friends if some of the leave was approved. 71Around 10 November 2011 the Applicant was directed to work on restricted duties because of stress and depression. On 22 November, after the Christmas shifts had been posted, the Applicant says he contacted his mother to see if she could take time off to come to Hillston to help him care for the children over the Christmas holidays. The mother's evidence was that she would have to obtain leave which she could organise but was then told that it would not help so she made other plans. The Applicant says that it was not unreasonable that he did not impose on his mother when she could only assist for some of the period. 72After being told on 23 December 2011 that he would be working in Griffith because of his restricted duties, the Applicant says he was unable to arrange alternative child care for his children in Griffith. That is because he lives in Hillston so that is where the child care would have to be. There was not enough time and he was committed to spending time with his children even though he was unwell. The Applicant did not attend work from 26 December 2011 to 16 January 2012. He returned to work on 17 January 2012 on restricted duties. 73The Applicant was not granted leave in relation to various periods because of a combination of factors. The Respondent did not grant him leave for those days because of operational reasons and considerations of fairness to the other two police officers at Hillston. The Applicant was not able to attend work on those days both because of those refusals and, in some cases, because of his poor planning, lack of alternative child care and a belief that he was "entitled" to spend time with his children. 74Neither the parenting agreement nor the level of the Applicant's entitlement to paid leave meant that he was "unable to comply" with the requirements to attend work as rostered. Even if the non-compliance element of indirect discrimination needs to be assessed at a more detailed level in this case, we are not satisfied that the Applicant was "unable to comply". To a significant degree, the Applicant's non-compliance was as a result of his own poor planning and communication as well as his unwillingness to comply. 75This conclusion means that the Applicant's complaints of indirect discrimination are not substantiated. Nevertheless, in case we are wrong, we will go on to determine whether, if the Applicant is unable to comply with the requirements, those requirements have a disparate impact on people with carer's responsibilities.

Disparate impact 76The Applicant must also prove that a substantially higher proportion of people who do not have responsibilities as a carer comply or are able to comply with the requirements in comparison with people who do have such responsibilities. The Applicant must first identify the relevant base group or pool of officers to whom the requirement is directed: Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77]. 77The Applicant says that the base group are the three police officers at Hillston. He asks the Tribunal to compare his situation with that of his colleagues. None of them had carer's responsibilities of the kind he did as those with children were married and living with their partner. He is a single parent living in a remote location and only entitled to see his children in accordance with the parenting agreement. In another part of his submissions, the Applicant said that there was no evidence that anyone in the Northern Sector of the Griffith LAC had carer's responsibilities of the kind he had during the relevant periods. He says his colleagues were all able to comply with the requirement to attend as rostered. 78The group or pool of people is the people to whom the requirements are directed. The requirements are directed to the police officers on the rosters on the nominated days. The rosters applied to all police officers in the Griffith LAC, not just to the three police officers stationed at Hillston or those in the Northern Sector. In case we are wrong, we will also consider whether the requirements have a disparate impact using the police officers at Hillston as the group or pool of people. 79After identifying the base group, the Applicant must then demonstrate, either with evidence or by asking the Tribunal to take judicial notice, that the requirements have a disparate impact. Defining the two groups to be compared raises a difficult question. Is the comparison to be made between: (1)those with carer's responsibilities and those without carer's responsibilities; or (2)those with carer's responsibilities of a particular kind or extent (e.g. single parents) and those without any carer's responsibilities; or (3)those with carer's responsibilities of a particular kind or extent (e.g. single parents) and those without those kinds of carer's responsibilities (i.e. people who are not single parents but who may have other kinds of carer's responsibilities)? 80For options 1 and 3 the group or pool of people is divided into two categories. For option 2, the group is divided into three categories and those who are not single parents but who have other kinds of carer's responsibilities are not considered. 81Section s 49T(1)(b) calls for a comparison between people with responsibilities as a carer and people "who do not have such responsibilities" (emphasis added). In context, the ordinary meaning of "such responsibilities" is responsibilities as a carer as defined in s 49S. The wording of the provision suggests that the comparison is to be made in accordance with the first option listed above. 82In Chacon v Rondo [2011] NSWADT 72 the Tribunal made a finding that a single parent had responsibilities which are greater than that of a parent with a partner. That finding does not assist the Tribunal in coming to a conclusion about the disparate impact element of indirect discrimination. 83The definition of indirect disability discrimination in s 49B(1)(b) contains a slightly different formulation. The comparison is to be made between people with a disability and people "who do not have that disability" meaning the aggrieved person's disability. In disability discrimination cases the comparison is to be made between people with the applicant's disability and people without the applicant's disability. That formulation corresponds with the third option set out above. 84Despite the fact that the wording of s 49T(1)(b) suggests that the comparison should be made between people with and without carer's responsibilities, in case we are wrong, we will also consider the alternative construction consistent with the third option. 85If the base pool is all the police officers in the Griffith LAC and the comparison is to be made between those with and those without responsibilities as carers, the evidence must identify police officers who do and do not have carer's responsibilities and the police officers who can and cannot comply with the requirement. The result is two fractions or percentages which must be compared to determine whether the disparity is substantial. Number of police officers in the Griffith LAC with carer's responsibilities who can attend work as rostered during the relevant period Number of police officers in the Griffith LAC without carer's responsibilities who can attend work as rostered during the relevant period Total number of police officers in the Griffith LAC with carer's responsibilities Total number of police officers in the Griffith LAC without carer's responsibilities

86For example, assuming the total number of police officers in the Griffith LAC is 100 and 60 of those have carer's responsibilities and 40 do not, the denominators would be 60 and 40 respectively. If 55 of the 60 can attend work as rostered and 39 of the 40 can attend work as rostered, the proportions would be 91.6% compared with 97.5%. A decision maker may or may not regard that as a substantially higher proportion. 87The Applicant did not adduce evidence about the compliance rate of all police officers in the Griffith LAC or in the Northern Sector. If we assume, consistently with the Applicant's case, that the pool or base group are the three officers at Hillston, and the comparison is between single parents and all others, then no officers who are single parents can comply (0 divided by 1) and 100% of officers who are not single parents can comply (2 divided by 2). The result is a substantially higher proportion. 88In our view, this is not the correct conclusion for two reasons. Firstly, the comparison should be between people with and without carer's responsibilities. Secondly, even if that is wrong, the pool of people is so small that the results have very little probative value. The result could change dramatically with the addition or subtraction of a few individuals in the base groups: Hunter, p 215. 89Alternatively, the Applicant submitted that it is common sense, and a matter about which judicial notice might be taken, that single parents in the same or similar circumstances as him, are less able to comply with such requirements compared with those who are not single parents. Whether the comparison is between single parents and others or people with carer's responsibilities and others, can the Tribunal take judicial notice of the disparate impact? 90At common law judicial notice may be taken of "facts, which a judge can be called upon to receive and to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer": Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191, 212 (Sumner LJ). For example, in Waters v Public Transport Corporation (1991) 173 CLR 349, the proceedings were conducted on the basis that the introduction of scratch tickets and driver-only trams in Melbourne involved the imposition of a requirement or condition with which a substantially higher proportion of unimpaired persons can or do comply than do impaired persons. Judicial notice was also taken of the fact that women are substantially less likely than men to be able to comply with a requirement to work full time in Hickie v Hunt & Hunt [1998] HREOCA 8; (1998) EOC 92-910. 91While the Tribunal is not bound by the rules of evidence, the Evidence Act 1995 (NSW) provides a sound guide as to what constitutes reliable evidence. Section 144 deals with the concept of judicial notice and re-names it "common knowledge": 144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. 92As far as we are aware, the compliance rates of police officers in the Griffith LAC or just in the Northern Sector is not capable of verification by a particular document: Evidence Act, s 144(1)(b). In those circumstances the disparate impact of the requirements must be something which is not reasonably open to question and which is common knowledge in the locality in which the proceedings is being held or generally. 93It is common knowledge, and not reasonably open to question, that a small percentage of police officers are not able to comply with the requirement to attend work as rostered. That percentage would be very small because it is a term or condition of employment that police officers attend work as directed. Those not attending may be subject to disciplinary action. But the proportion of people in that category with and without carer's responsibilities or who are or are not single parents, is not common knowledge. 94The Applicant has not proven the disparate impact element of indirect discrimination. 95In case we are wrong, and judicial notice can be taken of the disparate impact, we will address the final element of indirect discrimination -unreasonableness.

Legal principles 96In Secretary, Department of Foreign Affairs & Trade v Styles (1989) 23 FCR 251 at 263 Bowen CJ and Gummow J articulated the following test of reasonableness which has been used as a starting point by other decision makers: The test of reasonableness is less demanding than one of necessity, but more demanding than one of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reason advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account. 97In Waters v Public Transport Corporation (1991) 173 CLR 349 at 378 Brennan J held that consideration must first be given to whether it is reasonable to impose the requirement "in order to perform the activity or complete the transaction." Next, regard must be had to whether the transaction or activity can be performed without imposing the requirement. Brennan J went on to say at 378-379 that, ". . . [E]ven where the imposition of the condition is appropriate and adapted to the performance of the relevant activity . . . it is necessary to consider whether performance . . . might reasonably have been achieved without imposing so discriminatory a requirement or condition." 98Reasonableness must be assessed objectively but the subjective preferences of both the applicant and the respondent may be relevant: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 83. It is also relevant to ask whether the purpose for which the requirement is imposed could be achieved without the imposition of the requirement or by the imposition of a different requirement. The policy objectives of the requirement and the maintenance of good industrial relations are also relevant.

Consideration 99The requirements in this case are that all police officers in the Griffith LAC are "to attend work in accordance with the roster as posted or current as of 11 April 2011 (first complaint), 16 April 2011 (second complaint); 14 April and 14 May 2011 (fourth complaint) and 26 October 2011 (sixth complaint)." The requirements are not that the Applicant attends work on particular days. 100The requirements are a term or condition of every police officer's employment. The requirement to attend work as rostered or as directed, unless they have approved leave, is not merely a matter of convenience. It is necessary to ensure that the Police Force can operate efficiently and that both employers and employees can plan their activities. The Applicant did not suggest that there was any other requirement that could achieve the same objective. 101The discriminatory effect of such a requirement is unknown. While the Applicant would prefer not to be subject to this requirement when it clashes with his responsibilities as a carer, any other arrangement would be unworkable. 102The complaints of indirect discrimination are not substantiated.

Outline of complaints 103The fifth and seventh complaints are complaints of victimisation in breach of s 50 of the AD Act. The fifth complaint is that because the Applicant lodged a complaint of discrimination with the Anti-Discrimination Board (ADB) on 12 April 2011, the Respondent refused to accede to his request for leave on 20-21 May 2011. The Applicant claims that a further "detriment" is being served with a written Warning Notice on 16 June 2011. 104The seventh complaint is that because the Applicant lodged complaints of discrimination with the ADB on 12 April, 27 April and/or 16 May 2011 the Respondent refused to approve his request for annual leave at Christmas 2011 and in January 2012. The final decision to refuse that leave was made by Superintendent Rowan on 24 October 2011.

Legal principles 105It is unlawful for a person to victimise another person because he or she has complained of discrimination or done certain other things listed in s 50 of the AD Act: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 106To prove victimisation, the Applicant must establish that: (1)he did one of the things referred to in sub-paras (a) to (d); (2)he suffered some consequential detriment; and (3)that detriment occurred on one of the grounds set out in sub-paras (a) to (d). 107There is no dispute that on 12 April, 27 April and 16 May 2011 the Applicant complained to the ADB and that making those complaints is conduct referred to in s 50(1)(a) or (c).

Meaning of "detriment" 108Whether the Respondent has subjected the Applicant to a "detriment" is to be determined objectively. In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41], the Tribunal stated that "it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment." A detriment is any objective disadvantage in any circumstance, but a person will not have suffered a detriment if a reasonable person would not regard the matter as a detriment because it is trivial.

Were the decisions and actions "detriments"? 109In relation to the fifth complaint, the detriment the Applicant said he was subjected to was being refused paid leave for 20-21 May 2011 and the subsequent disciplinary action - a warning notice issued on 16 June 2011 under s 173(1) of the Police Act. 110In relation to the seventh complaint, the detriment the Applicant says he was subjected to was being refused leave during the Christmas holidays in 2011/2012. 111We are satisfied that being rostered to work on dates when the Applicant had applied for leave is a "detriment". Contrary to the Applicant's submission, any pain and suffering for the stress and anxiety he suffered is not a separate detriment. It is a matter to be considered when assessing damages if the complaint is substantiated. 112The Respondent submitted that the Tribunal should not make any factual or legal findings with respect to the warning notice because it is expressly excluded from doing so by s 173(9) of the Police Act. Section 173 gives the Commissioner of Police certain powers to take action with respect to a police officer who engages in misconduct. That provision distinguishes between "non-reviewable action" (which includes a warning) and more serious "reviewable action" which includes demotion and dismissal: s 173(1) and Schedule 1. Only reviewable action may be reviewed by the Industrial Relations Commission: Police Act, Division 1A. 113Section 173(9) provides that: (a) no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and (b) no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section. 114As the Applicant's complaint is not an "appeal" to this Tribunal, the question is whether the Tribunal is prevented from reviewing or considering a decision that has been made under s 173. We were unable to find any cases directly on point. 115In Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 (7 June 2013) the Court of Appeal rejected a ground of appeal which stated that a non-reviewable warning notice given under s 173 of the Police Act, should not have been reviewed by the Industrial Relations Commission. In that case Boland J, at first instance, considered whether the Commissioner of Police's reliance on matters of complaint referred to in the warning notice were well-founded. MacFarlan J held at [69] and [70] that: Boland J did not in my view act contrary to s 173 by considering whether there was a sound basis for the giving of the Warning Notice. That section is concerned with challenges by judicial review or otherwise to the Warning Notice itself. It does not in my view prevent consideration, as here, of the reasonableness of the Warning Notice in the context of a subsequent examination of events leading up to, and allegedly justifying, the removal of a police officer under s 181D. The alternative of simply assuming that the Warning Notice was justified would unfairly prevent an officer who was subsequently removed from the Police Force arguing that the giving of the Warning Notice was unreasonable and that the matters to which it referred should not have been used by the Commissioner in deciding to remove the officer from the Police Force. 116On the basis of this reasoning, if the Applicant's challenge in this Tribunal is to the warning notice itself, s 173(9) prevents any consideration of that matter. In our view, the challenge is to the warning notice itself. The Applicant's case is that the giving of the warning notice constitutes victimisation in breach of s 50. By virtue of s 173(9) of the Police Act this Tribunal has no power to entertain that part of the Applicant's complaint and it is dismissed.

Meaning of causation 117In determining whether the detriment occurred "on the ground that" the Applicant has done one of the things set out in sub-paras (a) to (d), the question is whether "one of those things was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment": Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37].

Consideration of causation for complaint 5 118The Applicant submitted that it is open for the Tribunal to find a causal connection between being rostered to work on 20-21 May 2011 and the fact that he complained to the ADB on 12 April 2011. 119One of the reasons the Applicant says the Tribunal can infer the necessary causal link is "the circumstantial proximity of the decision/failure to provide paid leave and the overall circumstances of the complaint." In order to determine whether victimisation can be implied from the sequence of events in April and May 2011, it is relevant to outline the events not only in relation to the Applicant's applications for leave for May 2011 but also his applications for leave for April 2011. 120In early January 2011, the Applicant requested the weekend of 21-22 May as days off for "childcare commitments." The roster for this period was posted on about 14 April 2011 but the Applicant says he was not aware that he had been rostered for the May weekend until about 9 May. He approached Sergeant Ryan whose response was that he could try to swap with another officer. He attempted to swap with two other officers but was unsuccessful. 121In relation to his application for leave in the school holidays in April, the Applicant's evidence is that on 10 April 2011 he contacted Inspector Thorp by phone because he had not heard anything about his application for leave. Inspector Thorp told him that his request for leave during the leave embargo period had been refused. During the morning of 11 April 2011 the Applicant says he contacted the ADB for advice. During the afternoon of 11 April 2011 he received a copy of the roster and saw that he was rostered to work on days when he had agreed to spend time with his children during the school holidays. The following day, 12 April 2011, he sent a further email to Inspector Thorp telling him that he had contacted the ADB. The email said, in part: I understand the leave embargo issue however I am seeking advice now from the Anti-Discrimination Board on this as I am of the view it is discriminatory on the grounds of domestic status. 122On 11 April 2011 the Applicant also applied for extended leave for 27-29 April 2011. On 12 April 2011 the Applicant submitted a formal written complaint to the ADB about the refusal of his application for leave. On 15 April he emailed Superintendent Rowan requesting leave for 18 to 21 April 2011. On 16 April 2011 he received a reply from Superintendent Rowan saying that the leave was not granted because of the leave embargo. 123The effect of the evidence is that when Inspector Thorp first made the decision to refuse the Applicant's application for leave on 10 April 2011, or sometime before that, he did not know that the Applicant intended to complain to the ADB. It is also clear that by 12 April 2011, Inspector Thorp knew that the Applicant had complained to the ADB but he had already made the decision to refuse the April leave at that stage. 124We find that in relation to the application for extended leave some days later, Superintendent Rowan knew that the Applicant had made a complaint to the ADB. 125On 27 April 2011 the Applicant lodged a further complaint with the ADB in relation to the refusal of extended leave from 18 to 21 April as, by then, the Respondent had granted the Applicant time off from Friday 22 April to Tuesday 26 April 2011 and had also granted extended leave from Wednesday 27 April 2011 to Friday 29 April 2011. The Applicant complained again to the ADB on 16 May 2011 concerning the decision not to transfer him to another police station. 126Having been refused rest and recurrent leave for the 20-22 May weekend, the Applicant applied for extended leave for that weekend on 13 May 2011. He was advised on 17 May that his application had been granted for 20 May but refused for the other two days. He received reports from Sergeant Ryan and Superintendent Rowan about this application. Superintendent Rowan's report, dated 17 May 2011, states that he is aware of the Applicant's complaint to the ADB involving carer's responsibilities. The reasons he gives for refusing the application for extended leave are firstly, that the current roster was published on 14 April and the Applicant should have raised any issues at that time. Secondly, he agrees with Sergeant Ryan that there "needs to be a presence" that weekend and that Sergeant Ryan and Senior Constable English, who are working late shift, cannot provide coverage. 127The Applicant submitted that the operational requirements were not so great as to require someone always to be on duty. The position at Hillston filled by the Applicant had not been filled for a period of six months before he arrived. No steps were taken to cover those times when the Applicant did not turn up for work. When the Applicant became unwell in November 2011, he was directed to work on restricted duties away from Hillston. 128As well as the sequence of events, the second basis on which the Applicant submitted that the Tribunal can infer the necessary causal link for victimisation is a conversation he says he had with Sergeant Ryan. The Applicant gave evidence in his affidavit in reply dated 8 April 2013, that he recalls a day in late April 2013 when he spoke to Sergeant Ryan at the Hillston BP service station: Sergeant Ryan: The boss is pissed off with you about the discrimination. Applicant: I only went to the Anti-Discrimination Board for advice and they wanted it in writing if they were going to do anything. So I simply put it in writing. 129The first opportunity that Sergeant Ryan had to reply to this allegation was in cross-examination. Under cross-examination Sergeant Ryan denied making this statement and did not recall if the Applicant had said the words alleged. 130The Applicant submitted that the Respondent had failed to apply the rule in Browne v Dunn (1893) 6 R 67 (HL) by not putting to the Applicant in cross-examination that Sergeant Ryan did not say those words. The rule in Browne v Dunn is that a party wishing to present evidence which is inconsistent with the evidence given by a witness for the opposing party must give that witness an opportunity during cross-examination to comment on the contradictory evidence. Although the Tribunal is not bound by the rules of evidence, it must apply the rules of procedural fairness. Depending on the circumstances, a failure to comply with the rule in Browne v Dunn may constitute a breach of procedural fairness. 131In the circumstances of this case, the rule in Browne v Dunn does not oblige the Respondent to put to the Applicant that Sergeant Ryan did not say the alleged words. There was no obligation on the Respondent to put evidence that Sergeant Ryan gave orally and for the first time in cross-examination to the Applicant who had already given his evidence: MWJ v The Queen (2005) 80 ALJR 329 and Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607 at 623 to 624. 132We are not satisfied, on the balance of probabilities, that Sergeant Ryan said the words, "The boss is pissed off with you about the discrimination." Firstly, the Applicant did not mention the comment either in his complaint to the ADB or in his first statement. Given that he was complaining about victimisation, it is likely that he would have remembered that that conversation had taken place before 8 April 2013. Secondly, Sergeant Ryan denied making the statement and there were no other witnesses. 133The Applicant submitted that it is significant that Superintendent Rowan stated under cross-examination that he did not check with Inspector Thorp that he had not rejected the Applicant's application because he was victimising him for making a complaint. In addition, he did not seek guidance from Human Resources managers in dealing with the review. 134We are not satisfied that the facts give rise to an inference that one of the "real", "genuine" or "true" reasons for being refused rest and recurrent leave on 14 April 2011 or extended leave on 14 May 2011 was that the Applicant had complained of discrimination on 11 April 2011. We have come to that view for several reasons. Firstly, Inspector Thorp had refused to grant the Applicant leave for April before he knew that the Applicant had complained to the ADB. Although that decision was made in the context of the leave embargo, it suggests that leave will be refused in certain cases because of operational requirements. 135Secondly, Superintendent Rowan granted the Applicant leave for 20 May 2011. If he was victimising the Applicant for having made a complaint to the ADB, one would have expected him to refuse leave for the entire three days. 136Thirdly, there was another plausible explanation for the decision, that is operational requirements and fairness to the other officers. We accept the Applicant's evidence that urgent or unforeseen situations may mean that there is no police officer at Hillston on a particular day or days. But that does not mean that the police station can be left unattended just because all police officers want to take leave on a particular day. 137We are satisfied that the decision was made for operational reasons and for reasons of fairness to all officers at Hillston, not to victimise the Applicant for having complained to the ADB. 138Complaint 5 is not substantiated.

Complaint 7 victimisation 139The Applicant claims that the refusal of his application to change his annual leave from early December to 26 December 2011-15 January 2012 was an act of victimisation because he had lodged a complaint with the ADB on 18 July 2012 and on later dates. The detriment does not include any financial loss flowing from those actions. Those matters are properly characterised as damages to which the Applicant may be entitled if the complaint is substantiated.

Causation 140The Applicant gave evidence that when Christmas leave arrangements were being discussed in August/September 2011, Sergeant Ryan and Inspector Thorp both asked him what was happening with his complaint to the ADB. In his formal application for the Christmas/New Year period on 10 October 2011, the Applicant mentioned that: Refusing me leave at this time, despite the business rules, is potentially direct discrimination on the grounds of carer's responsibilities. 141We are satisfied that Sergeant Ryan, Inspector Thorp and Superintendent Rowan all knew in October 2011 that the Applicant had lodged complaints with the ADB. 142In the memorandum dated 26 October 2011 making the final decision about the Applicant's Christmas leave, Superintendent Rowan mentions that the Applicant has previously made complaints to the ADB. Superintendent Rowan says he "caused a full review of the request to determine whether as a Commander (he) could meet the request." In summary, the reasons Superintendent Rowan gave for refusing the Applicant's request were firstly that, if granted, there would be no police officer at Hillston from 3-11 January 2012, a situation which he regarded as "untenable". Secondly it was not practicable to use police officers from elsewhere because of their existing work commitments. 143Thirdly, a review of previous leave taken shows that the Applicant was on leave for Christmas 2010 and that the annual leave roster was completed some 12 months previously. The existing arrangements (where the Applicant has approved leave from 11-24 December 2011) gives all three officers at Hillston some leave during the December/January periods. Finally, Superintendent Rowan understands that Sergeant Ryan and Senior Constable English have already made arrangements since the posting of the rostered leave. 144The Applicant disputes that there was a "full" review of the circumstances and he disputes the validity and, in some cases, the factual basis for each of the reasons given by Superintendent Rowan. 145Even though the Hillston Police Station was not always manned, Superintendent Rowan gave evidence, which we accept, that it is "an undesirable operational outcome" for the Hillston police station not to be staffed at all times. We are satisfied that ensuring that there was someone on duty for this period was one of the real reasons for the decision not to give the Applicant the leave he had requested. 146We also accept that it was not practicable to use police officers from elsewhere because of their existing work commitments. In summary, we are satisfied that the reasons for refusing the Applicant's application for leave during Christmas and New Year 2011/12 were operational requirements and a reluctance to require Sergeant Ryan or Senior Constable English to forego their preferred dates. Whether or not it was fair or reasonable for Superintendent Rowan to refuse the Applicant's application for leave is not the issue. The question is whether one of the real reasons for the refusal was that the Applicant had complained to the ADB. We are not satisfied that that was the case.

Complaint 3 - refusal of transfer applications - direct discrimination 147Around 4 April 2011 the Applicant applied for two advertised positions which involved a transfer to a police station either at Yenda or Whitton in the Griffith LAC. Inquiries in relation to the position were to be made to Inspector Dunlop. 148The positions were for a Lockup Keeper role, the same role that the Applicant had at Hillston. The advertisement stated that, "All applicants must have tenure." The Tenure Policy states that, "All officers are expected to serve at a location for three years before seeking a transfer." In accordance with that policy, the Applicant was expected to remain in his position at Hillston for three years from January 2009. According to the Applicant, there are "some exceptions" to the tenure policy and tenure has been "excused" for many of his colleagues. 149In both applications for transfer the Applicant stated that: Yenda/Whitton will be a benefit to me as I have two children residing in Goulburn, Yenda/Whitton is closer to my children than my current circumstances, and it will greatly benefit them also. 150One other person applied for the Whitton position. The Applicant was the only applicant for the Yenda position. A selection committee of three people, including Inspector Dunlop, considered the written applications and made a recommendation to Superintendent Rowan. 151On the recommendation of the committee, but purportedly for different reasons, Superintendent Rowan refused both of the Applicant's applications. The Applicant claims that those refusals constitute direct discrimination on the ground of carer's responsibilities in breach of s 49V(2)(b) or (d): 49V Discrimination against applicants and employees (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer: (a) in the terms or conditions of employment that the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. 152Direct discrimination is defined in s 49T(1)(a) and (2): (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person's responsibilities as a carer if the perpetrator: (a) on the ground of the aggrieved person having responsibilities as a carer, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or ... (2) For the purposes of subsection (1) (a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer. 153Section 4A of the AD Act provides that: 4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 154In order to prove that the Respondent has breached s 49V(2), the Applicant must establish that: (1)he had responsibilities as a carer at the relevant time; (2)his access to opportunities for transfers was limited or denied or he was subjected to "any other detriment"; (3)the Respondent treated him less favourably than, in the same or similar circumstances, it treated or would have treated a person without carer's responsibilities; (differential treatment) and (4)at least one of the grounds for the less favourable treatment was the Applicant's responsibilities as a carer; (causation): Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45].

Did the Applicant have carer responsibilities? 155At the relevant time, April 2011, the Applicant had responsibilities as a carer. He was responsible for the care or support of two children aged about 10 and 7 who were at least substantially dependent on him and in need of care and support. It is not necessary for the Applicant to adduce evidence that he discussed the proposed transfer with his former wife or that a transfer would have had any effect on the parenting agreement.

Opportunities for transfer 156The Respondent makes the point that s 49V(2)(b) is directed to denying or limiting opportunities for a transfer, but does not cover being unsuccessful in an application for a transfer. While this provision could have been drafted more clearly, it is intended to cover, not just denying or limiting access to the opportunity to be transferred, but to actually being denied a transfer. If s 49V(2)(b) does not apply to that situation impliedly, then the conduct comes within s 49V(2)(d) - being subjected to "any other detriment". That detriment is having an application for transfer refused.

Differential treatment 157The differential treatment component of direct discrimination requires the Tribunal to compare the way the Respondent treated a person who has responsibilities as a carer with the way it treats or would have treated a person who does not have "those responsibilities" in the same or similar circumstances. "Those responsibilities" refers to responsibilities as a carer. The Applicant did not nominate an actual comparator so the question must be asked in relation to a hypothetical person. In this case the relevant comparator would be a police officer without responsibilities as a carer seeking a transfer in the same or similar circumstances. Those circumstances include that the person was still subject to tenure, was leaving a position that would be difficult to fill and who had a legitimate personal reason for wishing to be transferred. 158When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the Respondent treated the Applicant less favourably than a hypothetical person without carer's responsibilities by determining that carer's responsibilities was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. No final judgement can be made on the differential treatment question without examining the issue of causation.

Causation 159The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's carer's responsibilities (including the extended definitions of that ground) is at least one of the "real", "genuine" or "true" reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. The reason does not have to be the only reason for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. 160According to the Applicant, he had a phone conversation with Inspector Dunlop on 27 April 2011 in which Inspector Dunlop said: I was calling to give you some follow up on your applications to Yenda and Whitton. You have not been successful in the position because of family responsibilities because we can accommodate you more in Hillston. With Yenda you will be working out of Griffith and if you didn't turn up it would put greater pressure on the rosters. 161The Applicant emailed Inspector Dunlop for written reasons for the refusal but did not receive a copy of those reasons at that time. 162We accept that the conversation with Inspector Dunlop took place as outlined by the Applicant. We also accept the Applicant's evidence that Inspector Dunlop gave the impression that the matter had been decided. The Applicant gave detailed evidence about the circumstances of the phone call. In our view he remembers what was said in the phone call because it had a significant effect on his circumstances. In addition, about three weeks after the conversation, the Applicant gave a similar account of the conversation in his letter of complaint to the ADB on 16 May 2011. Inspector Dunlop did not give evidence. The Respondent could be expected to have adduced evidence from Inspector Dunlop. The failure to do so, without explanation, entitles the Tribunal to conclude that any evidence Inspector Dunlop may have given would not have assisted the Respondent's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 163We also accept that Superintendent Rowan, not Inspector Dunlop, was the ultimate decision maker in relation to the transfer applications. Superintendent Rowan's evidence was that while he takes committee recommendations into account when making a decision, the reasons given by Inspector Dunlop do not reflect his thinking or reasons. The Applicant asks the Tribunal to find that Inspector Dunlop communicated to the Applicant what he understood to be Superintendent Rowan's decision. 164Superintendent Rowan stated that the reasons he decided that the Applicant should not be transferred were firstly, that he was still subject to tenure and secondly, "the relative difficulty he was likely to face in covering his vacancy at the Hillston station." According to Superintendent Rowan, there was no organisational benefit in transferring the Applicant to either Yenda or Whitton. He also decided that the other officer who applied should not be transferred because he was also subject to tenure in his current position. 165The Applicant did not agree that tenure or the difficulty in covering his vacancy was the real reason for the decision. He submitted that at least one of the "real" reasons was his carer responsibilities. 166In relation to the tenure policy, Superintendent Rowan's evidence was that while there are some exceptions to the tenure policy, none applied to the Applicant. When asked in cross-examination whether particular police officers had completed tenure before being transferred, Superintendent Rowan agreed that Grant Bridge and Vlad Mijok had not completed tenure before being transferred. He said he had not made the decision in relation to Mr Mijok. Despite these decisions having been made, Superintendent Rowan denied that he could have exercised his discretion to excuse tenure in the Applicant's case. 167Superintendent Rowan relied on a "contemporaneous", but undated, file note which he says records his reasons for the decision: I am aware after speaking with Inspector Dunlop and Brenda Stedman the rationale of the selection committee for non-selection of Grant Wright for either position. I am aware that the committee spoke about the needs of Senior Constable Wright in terms of his personal needs. In ratifying the decision of the committee in terms of the application for transfer the basis of my decision is tenure. S/C Wright took Hillston at a time when it had been vacant for some time given the resignation of S/C Longbottom. He commenced in January (2009) and tenure to enable application for transfer will not be met until January 2012. Given the historical difficulty I would not necessarily support a transfer at that time. Whilst I appreciate the concerns of the selection committee in terms of S/C Wrights attendance patterns, particularly in respect of his requests and the impact this would have on FRP at Griffith given both Yenda and Whitton would be deployed from Griffith this is not a valid reason to decline a transfer. That said it is a reasonable consideration to be made when selecting staff and it forms part of the regular recruitment processes. I have spoken with Inspector Dunlop in this regard. MJ Rowan Commander 168Superintendent Rowan says in this memo that "the basis of my decision is tenure." Superintendent Rowan agreed that two officers had been transferred previously without having tenure. There was no evidence in relation to the circumstances of those transfers. We are satisfied that lack of tenure was one of the matters, but not the only matter, that Superintendent Rowan took into account in refusing the applications for transfer. 169Under cross-examination Superintendent Rowan clarified that the reference to "personal needs" and "S/C Wright's attendance patterns" in the undated memo were both references to the Applicant's request for leave due to carer's responsibilities for the period from 18-29 April 2011. He said that his understanding was that the committee had considered a number of requests the Applicant had made for leave and whether they could be accommodated at Yenda or Whitton. In summary, his view as expressed in the memo is that the fact that the Applicant's requests for leave to meet his carer's responsibilities could not be accommodated as well in Yenda or Whitton is not a valid reason to decline a transfer. 170It was put to Superintendent Rowan that the last paragraph of his memo contains a "mixed message" about what should be taken into account. In relation to the last sentence of the memo, the reference to selection of staff, Superintendent Rowan said that when recruiting staff an assessment is made of their sick leave history and professional standards history. He re-iterated that the committee should not have considered any need the Applicant had for carer's leave when making a recommendation about transfers. 171In cross-examination Superintendent Rowan agreed that the Applicant's child care responsibilities could be better accommodated at Hillston. But he said those responsibilities were only one aspect of the decision. The other issues were difficulties recruiting to a remote location at Hillston and tenure. 172We are satisfied, on the balance of probabilities, that the Applicant's carer's responsibilities was one of the "real", "genuine" or "true" reasons for refusing the transfer. That was the only reason given by Inspector Dunlop during the phone call. Although Superintendent Rowan's undated memo gives tenure as the only reason, he agreed in cross-examination that the Applicant's child care responsibilities was another aspect of the decision. 173That conclusion allows us to answer the "differential treatment" part of the test for direct discrimination in the affirmative. 174The complaint of direct discrimination is substantiated.

Remedies 175The only remedy the Applicant seeks is damages for non-economic loss. If all the complaints were substantiated, the Applicant sought "not less than approximately $20,000.00". The Applicant said that amount is consistent with the decision in Reddy v International Cargo Express [2004] NSWADT 218 (30 September 2004). 176The loss that the Applicant suffered as a result of not being transferred to Yenda or Whitton was the inconvenience of being further away from his children. Goulburn (where the children live) is 490 kms from Hillston, 361 kms from Yenda and 384 kms from Whitton. Moving to Yenda or Whitton would have saved the Applicant between an hour and an hour and a half's driving time each way, so that instead of taking over 5 hours, the trip would take either just under or just over four hours. While not inconsequential, this loss is relatively minor. An appropriate amount to compensate the Applicant for that loss is $5,000.

Orders (1) The Applicant's complaints of indirect discrimination on the ground of carer's responsibilities (Complaints 1, 2, 4 and 6) are not substantiated. (2) The Applicant's complaints of victimisation (Complaints 5 and 7) are not substantiated. (3) The Applicant's complaint of direct discrimination (Complaint 3) is substantiated. (4) The Respondent is ordered to pay the Applicant $5,000 within 28 days of the date of this decision.

Costs 177Any application for costs and any evidence in support of such an application is to be filed and served within 28 days of the date of these reasons. 178Any reply to such an application and any evidence in response, is to be filed and served within a further 28 days. 179If necessary, a hearing date will be set to consider any application. Otherwise, any application will be determined on the papers in accordance with the Administrative Decisions Tribunal Act 1997, s 76. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2014

Crown Employees (Police Officers - 2009) Award Disability Discrimination Act 1992(Cth)

Police Regulation 2008(NSW)

2 Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 83 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Gardiner v New South Wales Workcover Authority [2003] NSWADT 184 Hickie v Hunt & Hunt [1998] HREOCA 8; (1998) EOC 92-910 Hurst v State of Queensland (2006) 151 FCR 562 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Mandla v Dowell Lee [1983] 2 AC 548 MWJ v The Queen (2005) 80 ALJR 329 New South Wales v Amery (2006) 80 ALJR 753 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Reddy v International Cargo Express [2004] NSWADT 218 Reid-Frost v Industrial Relations Commission of New South Wales [2013] NSWCA 161 Secretary, Department of Foreign Affairs & Trade v Styles (1989) 23 FCR 251 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Spencer v Greater Murray Area Health Service [2005] NSWADT 138 Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 Texts Cited: R Hunter, Indirect Discrimination in the Workplace, Federation Press, Sydney, 1992 Category: Principal judgment Parties: Grant Wright (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel K Edwards (Applicant) K Eastman SC with L Walsh (Respondent) Mitchell Lawyers (Applicant) Henry Davis York (Respondent) File Number(s): 121017

Responsibilities as a carer 14The Applicant must also prove that he is a person with responsibilities as a carer. Logically, proof of that fact arises when the Tribunal is considering the fourth element, disparate impact. But we will address it now. That term is defined in s 49S: (1) A reference in this Part to a person's "responsibilities as a carer" is a reference to the person's responsibilities to care for or support: (a) any child or step-child of the person (whether or not under the age of 18 years) who is: (i) wholly or substantially dependent on the person, or (ii) in need of care or support, or (b) any child or adult who is in need of care or support and: (i) of whom the person is guardian, or (ii) for whom the person has parental responsibility under a law of the Commonwealth or this State, or (iii) in relation to whom the person is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998, or (c) any immediate family member of the person who is in need of care or support, being one of the following: (i) a spouse or former spouse of the person or of a spouse or former spouse of the person, (ii) a grandchild or step-grandchild of the person or of a spouse or former spouse of the person, (iii) a parent or step-parent of the person or of a spouse or former spouse of the person, (iv) a grandparent or step-grandparent of the person or of a spouse or former spouse of the person, (v) a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person. (2) A reference in this Part to a person's responsibilities is a reference to responsibilities: (a) that the person has, or (b) that the person is thought to have (whether or not the person in fact has the responsibilities), or (c) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or (d) that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities). 15In Gardiner v New South Wales Workcover Authority [2003] NSWADT 184 at [39] the Appeal Panel noted that s 49S "defines the relationship which must exist between the aggrieved person and the person who is being cared for, but does not define what is meant by 'the person's responsibilities to care for or support' another person." The Appeal Panel went on in the same paragraph to note that, "[T]he phrase is a general one and should be given a broad interpretation in keeping with the human rights purpose of the provision." There is no need for the Applicant to provide evidence of the extent of those responsibilities for the purpose of proving that he has those responsibilities. 16The Applicant did provide evidence of the extent of his responsibilities. He is a single parent, with two children who live with his former wife in Goulburn most of the time. On 12 March 2010 the Applicant and his former wife agreed, by consent, under the Family Law Act 1975 (Cth), to a parenting agreement. The agreement stated that they would have "equal shared parental responsibility" for the children. It was also agreed that the Applicant would have sole responsibility for making decisions about the short-term care, welfare and development of the children while they are in his care. Clause 4 of the Agreement stated: That the father spend time with the children as follows: (a)Each fourth weekend from Friday 3:25pm to 8:00pm Sunday. (b)If the father provides to the mother seven days advance notice, each second weekend from Friday 3:25pm to 8:00pm Sunday. (c)In 2010 and each alternate year thereafter from 3:00pm Christmas Eve to 3:00pm Christmas Day. (d)In 2009 and each alternate year thereafter from 3:00pm Christmas Day and thereafter for three weeks of the school holidays. (e)One half of each school holidays to be determined by agreement. (f)On Father's Day each year from 5:00pm Saturday to 5:00pm Sunday. (g)At any other time as agreed between the parties. 17We are satisfied that the Applicant is a person with responsibilities as a carer as defined in s 49S. He has responsibilities as a father in accordance with the parenting agreement and any other agreement he makes with his former wife, to care for and support his two children. We are satisfied from the parenting agreement and the Applicant's evidence about the amount of time he spends with them, that they are substantially dependent on him. As young children, they are in need of his care and support.

Legal principles 18The first step when determining whether a complaint of indirect discrimination has been proved, is to identify the "requirement or condition" with which the Respondent has required the Applicant to comply. We will use the term "requirement" to mean a "requirement or condition". It is critical that the requirement is carefully formulated because each of the other elements of indirect discrimination will be determined with respect to that precise requirement. The term "requirement" "should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employee". But "it is necessary in each particular instance to formulate the requirement or condition with some precision." Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at p 185 (Dawson J). See also Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 at 393-394. 19Although the first element of indirect discrimination under s 49T(1)(b) is that the respondent requires the aggrieved person to comply with a requirement, the requirement must be worded so that it applies to more than one person. That is because, in order to determine whether the requirement has a disparate impact, a comparison must be made between the proportion of people with carer's responsibilities who can comply with the requirement and the proportion of people without carer's responsibilities who can comply. 20There is no need to prove that the requirement was imposed "on the ground of" the Applicant's carer's responsibilities: Amery & Ors v New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 (15 November 2004) at [49] and Courts and Other Miscellaneous Legislation Amendment Act 2013, Schedule 1, cl 1.1. Indirect discrimination focuses on the effect of the requirement, not on the reason for its imposition. (We note that a different view was expressed by the Tribunal in ACE v State of NSW (TAFE Commission and DET) [2010] NSWADT 180 at [16] and that there was no ground of appeal on that point: ACE v Director General, Department of Education and Training [2011] NSWADTAP 23.)

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