Coote v Commissioner of Police, NSW Police [2007] NSWADT 128

CITATION: Coote v Commissioner of Police, NSW Police [2007] NSWADT 128

DIVISION: Equal Opportunity Division

APPLICANT PARTIES: Peter Coote RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 071043

HEARING DATES: 13 June 2007

SUBMISSIONS CLOSED: 13 June 2007

DATE OF DECISION: 18 June 2007

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Anti-Discrimination Act 1977

CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT F Gaha, agent

ORDERS: Leave refused

REASONS FOR DECISION 1 In December 2003 Mr Coote became a Probationary Constable with NSW Police. He resigned five months later. In October 2005, when he was 54 years old, he sought re-employment but that application was refused. Mr Coote says that the decision of the Commissioner of Police not to re-employ him constitutes discriminated against him on the ground of his age in breach of the Anti-Discrimination Act 1977 (AD Act). He says that when he was a Probationary Constable Commander Henderson informed him that he had a young team at Quakers Hill. Mr Coote replied, "I am not so young" to which Commander Henderson is alleged to have said, "Yeah, except you" and walked off. Mr Coote also said that Sergeant Schmutter asked him how old he was and when he said "52", he replied in a derogatory manner, "I will be retired when I reach that age". 2 The Commissioner of Police says that the decision not to re-employ Mr Coote was not based on his age. Rather it was based on adverse reports from previous supervisors. Those reports detailed a history of non-performance, poor performance, an unsatisfactory attitude and problems with authority. Mr Coote applied for full copies of the reports under the Freedom of Information Act 1989, but NSW Police provided only extracts from those reports. The Ombudsman has now recommended to NSW Police that they provide full copies of the reports but as at the date of the hearing no decision had been made as to whether that recommendation would be followed. 3 The President of the Anti-Discrimination Board declined Mr Coote's complaint of age discrimination on the basis that it was lacking in substance. Mr Coote decided to pursue his complaint in the Tribunal but before he can do so, he needs the Tribunal's permission or "leave": AD Act, s 96(1). Approach to determining leave 4 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under s 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]: 17 The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. 5 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. Age discrimination 6 Section 49ZYB(1)(b) of the AD Act makes it unlawful for an employer to discriminate against a person on the ground of age "in determining who should be offered employment". Discrimination is defined in s 49ZYA to include "direct" discrimination: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if, on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or, . . 7 Consequently, in order to prove that he has been discriminated against on the ground of his age, Mr Coote would have to establish two things: first, that the Commissioner would not have refused to re-employ a younger person who had a similar history to Mr Coote as a Probationary Constable and secondly that at least one of the reasons the Commissioner refused to re-employ him was his age: AD Act , s 4A. The evidence Mr Coote points to in support of his case are the two comments by other police officers referred to in [1] above. After lodging his complaint with the President of the Anti-Discrimination Board, Mr Coote mentioned another incident where an Inspector addressing all the new Probationary Constables said, "You are the eyes and ears only while on probation, don't interfere with the more experienced officers". He then allegedly pointed to Mr Coote and said, "that goes especially for you when you get on in years you have a tendency to but in." In order to succeed, those comments would have to be capable of supporting an inference that at least one of the reasons Mr Coote was not re-employed was his age. Application for adjournment 8 At the leave hearing Mr Coote applied for an adjournment so that he could obtain full copies of the supervisor's reports which were the basis of the decision not to re-employ him. Mr Coote said that the decision not to give him full access to those reports was a denial of procedural fairness and that he was entitled to know what had been said about him. I should make it clear that it is not the Tribunal's role in these proceedings to make any determination pursuant to the Freedom of Information Act 1989. 9 Mr Coote told the Tribunal at the hearing that two officers who were supervising him while he was a probationary constable had difficulty performing their duties. After he resigned, he complained about their conduct to the Ombudsman. He said that he believes that the refusal to re-employ him was a vengeful and spiteful response to these complaints. He says that he was a "whistleblower" and that the refusal to re-employ him was part of a vendetta against him. 10 While I can understand why Mr Coote wants the reports that led to the decision not to re-employ him, full copies of those reports are not necessary for me to make the decision as to whether to grant leave for Mr Coote to proceed with his complaint of age discrimination. Mr Coote is not alleging that full copies of the reports would disclose any direct or circumstantial evidence that he has been discriminated against because of his age. His case is that they will reveal that he has been denied re-employment because of complaints he made about two other officers. Even if Mr Coote could prove that he was not re-employed because of a vendetta against him, that would not assist him to prove his allegation of age discrimination. Consequently, Mr Coote's application for an adjournment in order to obtain full copies of the reports is refused. Conclusion 11 The only relevant evidence from which an inference could possibly be drawn that Mr Coote was discriminated against on the ground of his age are the comments I have already mentioned. The comments were one-off remarks made by three separate individuals, one of whom Mr Coote is unable to identify by name. They are not of sufficient significance to justify an inference that one of the reasons for refusing to re-employ him was his age. Furthermore, Mr Coote conceded to the Tribunal that he regards the decision not to re-employ him as a vengeful and spiteful response to the complaints he made against two police officers who were not the source of the comments about age. Even if Mr Coote were able to establish that that one of the reasons for refusing to re-employ him was the fact that he complained about those officers, that would not assist him to prove a breach of the age discrimination provisions of the AD Act. In short, Mr Coote's complaint of age discrimination appears to be lacking in substance. In my view, the prospects of success of this complaint are slight, and there is no other reason for granting leave to proceed. Order 12 Leave refused.