CITATION: Carr -v- Commissioner of Police, New South Wales Police Service [1999] NSWADT 74 DIVISION: Equal Opportunity APPLICANT: Gary Carr RESPONDENT: Commissioner of Police, New South Wales Police Service FILE NUMBER: 991041 HEARING DATES: 08/03/1999; 08/04/1999 SUBMISSIONS CLOSED: 08/04/1999 DATE OF DECISION: 8 September 1999 P King - Judicial Member BEFORE: L Farmer - Member L Mooney - Member PRIMARY LEGISLATION: Anti-Discrimination Act 1977 APPLICATION: Disability Discrimination - Employment - MATTER FOR DECISION: Principal matter Applicant: D Hillard, solicitor, Clayton Utz REPRESENTATION: Respondent: G Willis, counsel, instructed by N Marsic, Legal Services, NSW Police Service Orders made on 4 August 1999 ORDERS: 1. The Tribunal recommends that the tenure and transfer policy of the Northern Metropolitan Region of the New South Wales Police Service, an extract of which is attached to Exhibit 1 in these proceedings, be reviewed with a view to removing any discriminatory effect. 2.That the complainant be appointed by the respondent to an overstrength position as highway patrol officer in the Brisbane Waters LAC until such time as consideration may be given by the respondent to an application to be made by the complainant for permanent appointment in that LAC. 3. That the respondent pay to the complainant the sum of $4,948.86 which is comprised of the following two amounts: $2,948.86 in respect of the costs of maintaining a vehicle provided to the complainant by his sister and, secondly, the sum of $2,000 by way of general damages. We direct that the payment referred to be made within six weeks of 4 August 1999. 1 In this inquiry the complainant, Gary Carr, complains that he was discriminated against by the New South Wales Police Service on the ground of his disability. The complaint is detailed in the points of claim filed by Mr Carr in this matter in this Tribunal on 21 May 1999 to which the respondent, the Commissioner of Police, has responded in points of defence filed 24 June 1999. The Tribunal heard extensive oral evidence over two full days of hearing from the complainant and the respondent's officers. Each party was represented. 2 Following the hearing of this matter on 3 and 4 August 1999 the Tribunal was satisfied with the complainant's case and found the complaint substantiated. The Tribunal now gives its reasons for that conclusion and the orders made. 3 It is not in dispute in this matter that at all material times the complainant had a disability within the meaning of Anti-Discrimination Act 1977, s4(1), and that he had suffered a total or partial loss of his bodily functions or a part of those functions. He has a flexion-hyperextension injury to his cervical spine. He has suffered a 20% loss of movement in his neck and a 15% restriction of his back. This disability was suffered as a result of his involvement in a motor vehicle accident whilst on duty in April 1997. He was informed following difficulties after the accident on his return to work by his neurologist Dr Crimmins that he should not use public transport, in particular trains, because so doing strains his neck and back precipitating headaches. This diagnosis was accepted by the police medical officer, Dr Phillip Sharp in his report of 14 October 1997. That report confirms that the only restrictions to be placed upon the duties of Senior Constable Carr as a result of his disability are that he not use public transport and that he work locally in Gosford, his place of residence. In short he has a disability which requires him not to use public transport and in particular trains, and the medical experts have all recommended that he work close to home in Gosford. 4 On 12 April 1999 the respondent wrote an open letter to the solicitor for the complainant in which it admitted that it had discriminated against Senior Constable Carr on the ground of disability in relation to his application to be transferred to general duties position at the Brisbane Waters Local Area Command ("LAC"). During the hearing the concession in this regard was further clarified by learned Counsel for the Commissioner for Police as being effective discrimination against the complainant in terms of his general duty application to transfer to the Brisbane Waters LAC on the ground of his disability. That occurred in May 1998. 5 Senior Constable Carr was first certified as being unable to travel on trains due to his neck injury in May 1997 following a motor vehicle collision during the course of work in April 1997. At the time of the accident he was working as a highway patrol officer attached to the Eastwood LAC at Hornsby. Upon the recommendation of the police medical officer, he was appointed to take up an overstrength position as highway patrol officer at Gosford Police Station under the Brisbane Waters LAC on 2 August 1997. In September he spoke to Inspector Delamont, Inspector McKenna and Superintendent Williams with a view to obtaining a compassionate transfer into a permanent position at the Brisbane Waters LAC. Superintendent Williams recommended against the transfer and wrote in his report of 12 September 1997: "Cannot support this transfer - doctor's certificate indicates full recovery imminent albeit 'some months'. I am intrigued by the fact the Constable (from what rehab. have told me) can work full operational duties, one out, on highway patrol, but cannot travel on a train - such circumstances seem anomalous. I see no compassionate circumstances sufficient to support the application". 6 Nonetheless whilst on duty at Brisbane Waters LAC, Senior Constable Carr was considered to be a competent and able officer and on 22 January 1998 he was promoted to the position of Senior Constable. In March he was advised by the Police Service rehabilitation officer, Kelly Lanarch, that he would not be able to stay at Brisbane Waters after the end of June 1998. In April of that year a specialist highway patrol position within the Brisbane Waters LAC was advertised but only to personnel within the LAC. A general duties position was also advertised. Senior Constable Carr applied for the general duties position, with a view to immediately applying for the specialist highway patrol position. In June 1998 the Transfer Committee consisting of Inspector Hickman, Inspector Delamont and Superintendent Ebrill met to consider applications for the general duties position but Senior Constable Carr was not approved on medical grounds. Later in June 1998 Ms Lanarch advised Senior Constable Carr that he would be placed on a rehabilitation programme requiring him to return to work at Pennant Hills, even though, one day before her advice to him, a police medical officer had informed Senior Constable Carr after an examination that his injury had not changed. 7 On 6 July 1998 Senior Constable Carr began to travel to work at Pennant Hills by train but was unable to perform duties that day and returned home ill. On 10 July he spoke to Ms Lanarch and informed her that he was unable to participate in the rehabilitation programme and had been recertified by his doctor for local duties. He then abandoned the rehabilitation programme but returned to full time work at Pennant Hills, driving to work by car each day. 8 However, in addition to the admitted incident, discrimination was also complained of on the grounds of disability with respect to the transfer and tenure policy of the Northern Metropolitan Region of the New South Wales Police Service. That policy had the result of excluding for consideration as a highway patrol officer all persons who were not working as general duty officers in the Brisbane Waters LAC said to be a desirable location to work in the New South Wales Police Service. Even though Senior Constable Carr was working as an overstrength officer in the Brisbane Waters LAC at the time, he was not considered for the position, for which he was well qualified, of highway patrol officer because of the policy. It is contended also by Senior Constable Carr that a further reason that he was not considered was that senior officers in the Northern Metropolitan Region Command did not accept the medical advice of the Police Medical Officer and of Dr Crimmins that in fact Senior Constable Carr could work a full day as a highway patrol officer yet not travel to work by train. As a result he was placed on a rehabilitation course with which he could not comply. In short they treated the advice with scepticism and Senior Constable Carr with suspicion. We accept the complainant's case in this regard and find that a reason, although not the only reason, why Senior Constable Carr was not considered for the available position in the Brisbane Waters LAC for the highway patrol and was rejected on more than one occasion was his disability. In short the respondent subjected him to a detriment on the ground of his disability and on that ground limited his access to opportunities for transfer within the Police Service. 9 Part 4A of the Anti-Discrimination Act 1977 sets out the varying circumstances in which a person contravenes the Act on the ground of disability. The complainant relies on s49D(2) which provides: "It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) In the terms or conditions of employment which the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subject the employee to any other detriment." 10 Section 49B describes conduct which constitutes discrimination on the ground of disability. It provides that: "A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability; or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply." Section 4A provides that if an act is done for two or more reasons one of them is unlawful discrimination then the act is taken to be done for that reason. 11 Senior Constable Carr was asked about his condition and said that it caused him stress that those about him, especially his superiors, in the workplace did not believe what he was saying or that he had a genuine injury. He described the problems that the injury created in the following terms: "I suppose the only real terms that I can put it in, in a train you are like a captive audience and you are sitting there and the train moves fairly - I don't know the degrees it moves - but it moves side to side, you have no control over which direction backwards and forwards. The difference between that and a motor vehicle, actually driving you have control over the car, you know if you are going to turn right. I suppose inevitably you compensate for your movements. It is just the constant rocking of the head side to side, it just gives me a headache, and the headache is right at the base of my skull and goes around into my temples. It is not much fun to live with. Unfortunately, I have got to live with it because I am permanently impaired now". 12 In all the circumstances of this case we are of the view, as admitted, that the respondent did discriminate against Senior Constable Carr directly on the ground of his disability in relation to the refusal to transfer him by reason of his illness to the general duties position at the Brisbane Waters LAC with a view to him being placed on permanent highway patrol. In addition, we have formed the view that the complaint is also substantiated on the ground that he was indirectly discriminated against by reason of the operation of the transfer and tenure policy, an extract of which is attached to Exhibit 1 statement of Superintendent Moore filed by the respondent in these proceedings, and in placing him on a rehabilitation programme in circumstances where the respondent knew, based on its own medical advice, that he could not comply with that rehabilitation programme. The requirement that Senior Constable Carr be a general duties officer in Brisbane Waters LAC before consideration could be given to any appointment in the LAC to us is unreasonable in the circumstances. It was also unreasonable to place him on a rehabilitation programme when the uncontested medical advice was that he could not meet it. For these reasons we find the complaint substantiated. 13 In these circumstances, having found the complaint proved, we consider it appropriate that the respondent should pay to the complainant compensation in respect of the expenses which Senior Constable Carr has incurred as a result of the contravening conduct. This includes the costs of maintaining his sister's car, a 1990 model Corolla, which he borrowed for the purpose of travel from his home at Narara to Pennant Hills after refusal of his application to transfer to the Brisbane Waters LAC. In that regard we allocate the sum of $2,948.86, a sum somewhat lower than that claimed in the particulars provided by Senior Constable Carr, and which are set out in MFI3 to take account of the actual use of the vehicle and holiday periods during the period of the claim. Senior Constable Carr has claimed ongoing expenses at the rate of $3,800 per annum, but in our view if the unlawful decision and conduct of the respondent is reviewed and addressed in an appropriate fashion, there ought be no need for payment by the respondent of ongoing expenses involved in maintaining his sister's car or in purchasing an alternative vehicle. Accordingly, we decline to order any additional out of pocket and ongoing expenses. 14 We consider that it is appropriate that the respondent immediately place the complainant back to the overstrength position as a highway patrol officer in the Brisbane Waters LAC until such time as consideration can reasonably be given by the respondent to an application which the complainant shall make for permanent appointment in that LAC either to general duties or as a highway patrol officer. Obviously that order assumes that Senior Constable Carr will, in accordance with the evidence before us and the submissions made to us, make such an application at the first available opportunity and within a reasonable period. If he does not do so or if the application is properly and lawfully refused by the respondent, then the effect of the order that we make in this regard will be exhausted and his entitlement to remain in the overstrength position will have expired as a consequence of the order we make. A reasonable period in our view, in all the circumstances, is two years from the date of the orders. 15 In relation to the tenure and transfer policy of the Northern Metropolitan Region of the New South Wales Police Service, an extract of which is attached to Exhibit 1 of the proceedings, we have formed the view that it has had an unlawful discriminatory operation in respect of the complainant. For these reasons we make a recommendation but not an order that the policy should be reviewed to ensure that it does not operate in a discriminatory fashion in future, particularly with respect to persons in the position of Senior Constable Carr. We note that the Anti-Discrimination Board has a programme, available to the respondent, upon negotiation and proper arrangements being made with the Anti-Discrimination Board for review of internal rules and procedures and an education programme to ensure that the staffing rules of an organisation do not operate in a discriminatory fashion. The appropriate Commissioner may consider it sensible to consult with the Board to review the tenure and transfer policy of the Northern Metropolitan Region to remove any discriminatory effect. That, however, ultimately, is a managerial decision for the respondent relating to its personnel and whilst the Tribunal is prepared to make a recommendation with a view to ensuring that the kind of unlawful conduct found in this case does not reoccur, we do not make any order in relation to that question in this Inquiry. 16 With respect to general damages, we are of the view that in all the circumstances, bearing in mind the jurisdictional limits of the Tribunal that the appropriate level of compensation for the discriminatory conduct of the respondent is the sum of $2,000. 17 For the above reasons we find the complaint substantiated and make the following orders: Firstly, the Tribunal recommends that the tenure and transfer policy of the Northern Metropolitan Region of the New South Wales Police Service, an extract of which is attached to Exhibit 1 in these proceedings, be reviewed with a view to removing any discriminatory effect. Secondly, we order that the complainant be appointed by the respondent to an overstrength position as highway patrol officer in the Brisbane Waters LAC until such time as consideration may be given by the respondent to an application to be made by the complainant for permanent appointment in that LAC. Thirdly, we order that the respondent pay to the complainant the sum of $4,948.86 which is comprised of the following two amounts: $2,948.86 in respect of the costs of maintaining a vehicle provided to the complainant by his sister and, secondly, the sum of $2,000 by way of general damages. We direct that the payment referred to be made within six weeks of 4 August 1999. 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.