Hay v State of New South Wales (New South Wales Police Service) (No.3) [2007] NSWADT 300

CITATION: Hay v State of New South Wales (New South Wales Police Service) (No.3) [2007] NSWADT 300

DIVISION: Equal Opportunity Division

APPLICANT Wayne Hay PARTIES: RESPONDENT State of New South Wales (New South Wales Police Service) (No.3)

FILE NUMBER: 041085

HEARING DATES: 26 April 2007 and 27 April 2007

SUBMISSIONS CLOSED: 3 September 2007

DATE OF DECISION: 20 December 2007

BEFORE: Ireland G - Judicial Member; Antonios Z - Non Judicial Member; Schneeweiss J - Non Judicial Member

CATCHWORDS: Disability Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Anti-Discrimination Act 1977

CASES CITED: Hay v State of New South Wales (No. 2) [2007] NSWADT 21

APPLICANT In person REPRESENTATION: RESPONDENT E Brus, barrister

REASONS FOR DECISION Background 1 In a decision delivered on 18 January 2007 (Hay v State of New South Wales (No. 2) [2007] NSWADT 21), the Tribunal upheld the application by the respondent under s 102 of the Anti-Discrimination Act 1977 (the Act), to dismiss, at the close of the case for the applicant, 15 of a total of 19 items of complaint under the Act made by the applicant against the respondent. 2 The background to the complaints of the applicant are set out in that decision. The Tribunal also decided that the remaining four items of complaint, based on the evidence submitted by the applicant, did not justify the dismissal of those complaints at that stage of the proceedings. The Tribunal directed that the hearing of those four complaints proceed and that evidence of the respondent be taken before a final decision be made on the question whether the applicant had substantiated any one or more of those four remaining claims. 3 The hearing for the purpose of determining the remaining evidence took place on 26 and 27 April 2007. Following written submissions from the parties, the Tribunal is now able to deliver its reasons for the dismissal of those four remaining complaints. Reasons for dismissal of complaints 4 The item number of each complaint is the item number referred to in the original decision of the Tribunal. Item 1 (Decline and delaying of special leave applications) 5 On the final two days of hearing, the respondent called evidence of Senior Executive Officers of the Police Service who had responsibility for processing, and in some cases determining, various applications made by the applicant arising out of his employment with the Police Service and about which he had complained. The evidence of the witnesses called by the respondent assisted in elucidating much more detail concerning those items of complaint than the evidence that was produced, in most general terms, by the applicant. As a result of the consideration of the more detailed information supplied to the Tribunal by the respondent's witnesses, the Tribunal is now in a better position to understand and decide the outstanding items of complaint. 6 It is important to bear in mind that the Tribunal is limited in its consideration of the applicant's complaint to the complaints that related to the period from 29 November 2001 to 14 February 2003. It was this period that was nominated by the Anti-Discrimination Board as the relevant period of the complaints for reference to the Tribunal for its determination. 7 In relation to this item, the applicant directed a considerable part of his evidence to an application for special sick leave which the applicant made to the respondent on 20 June 2001. The application was backdated to 5 May 2001. The application was prompted by advice he received on 2 May 2001 from Acting Commander D Evans of the Police Assistance Line (PAL) where the applicant was then working. On 2 May 2001, Acting Commander Evans advised the applicant that the GIO (the insurer administering the applicant's claim for a hurt on duty claim (HOD)) had decided not to approve that claim and that as a result, his special sick leave no longer applied. The applicant had at that time been on special sick leave since 14 March 2001 'pending the outcome of his HOD claim.' Acting Commander Evans advised the applicant that his special sick leave would now cease and that his options were to either take his available extended leave or commence sick leave without pay. 8 Notwithstanding that advice, the applicant made a fresh application for special sick leave backdated to 5 May 2001. The Director of PAL, Mr Chris Beatson, on 22 June 2001 sent a report to the Manager of the Health Services Department of the respondent in which he advised that he did not support the applicant's applications for special sick leave following receipt of the advice from the GIO. The applicant submitted further applications for special sick leave on 4 July 2001 and 19 July 2001. 9 On 27 July 2001, the Director of the Health Services Division advised the Director of PAL that: 'In view of the GIO's decision to decline liability for further absences and certain expenses relating to the officer's condition, I am unable to approve SSL from the date that the officer was advised of this decision – 2 May 2001. Senior Constable Hay should be advised of this decision immediately.'