Police Association of New South Wales v Commissioner of Police, New South Wales Police Force [2010] NSWADT 56

CITATION: Police Association of New South Wales v Commissioner of Police, New South Wales Police Force [2010] NSWADT 56

DIVISION: Equal Opportunity Division

APPLICANT Police Association of New South Wales PARTIES: RESPONDENT Commissioner of Police, NSW Police Force

FILE NUMBER: 081111

HEARING DATES: 23 September 2009

SUBMISSIONS CLOSED: 7 October 2009

DATE OF DECISION: 24 February 2010

BEFORE: Hennessy N - Magistrate (Deputy President); Schneeweiss J - Non-Judicial Member ; O'Sullivan M - Non-Judicial Member

CATCHWORDS: Discrimination in employment – presumed disability – access to benefits denied – complaint substantiated – assessment of damages – Anti-Discrimination Act 1977, ss 49A, 49D, 108

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

APPLICANT P Lowson, counsel REPRESENTATION: RESPONDENT E Brus, counsel

ORDERS 1. The complaint is substantiated ORDERS: 2. The respondent is to pay Mr Vary damages of $11,831.00 within 28 days of the date of these reasons 3. If the applicant wishes to apply for costs it should do so within 21 days of the date of these reasons. The respondent should reply within a further 21 days. Any application will be determined 'on the papers' after that date.

REASONS FOR DECISION

Introduction

1 The Police Association of NSW (the applicant) lodged a complaint on behalf of one of its members, Mr Adam Vary, with the Anti-Discrimination Board. The complaint alleged that the Commissioner of Police, NSW Police Force (the respondent) had discriminated against Mr Vary in employment on the ground of disability. The respondent had refused to allow Mr Vary to undergo an exposure test to tear gas which was a pre-requisite to him joining the State Protection Support Unit (the SPSU). The reason for that refusal was that when joining the Police Force Mr Vary had indicated that he had a childhood history of asthma.