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. 2 The President of the Anti-Discrimination Board referred the complaint to the Tribunal on 27 October 2008. The parties attempted to settle the matter. In anticipation of the matter settling, the respondent did not file points of defence or any evidence as directed. Prior to the hearing date the respondent applied for an adjournment because settlement discussions were taking place. The applicant opposed that application and the hearing proceeded on 23 September 2009. At the hearing, the respondent renewed its application for an adjournment to allow further time for settlement. That application was refused. Background 3 Mr Vary has been a police officer since 2005. He holds the rank of constable. Within the NSW Police Force, there are specialised units which a police officer may apply to join. Officers who are members of these units perform work as needed in addition to their ordinary appointment as a police officer. Mr Vary is a member of one such unit, the Operational Support Unit. In 2007, Mr Vary applied to join the SPSU. It is a pre-condition of acceptance to the SPSU that an applicant pass various medical and fitness assessments. The Police Medical Officer, Dr William Kirby, determines these assessments. One requirement of the fitness assessment is to be exposed to CS gas (also known as tear gas). We refer to this test as the exposure test. 4 The respondent has a policy that any police officer who has or has disclosed a history of asthma, including childhood asthma, is not permitted to undertake the exposure test. In Mr Vary's case that 'history' was limited to one occasion at the age of five when he suffered mild breathing difficulties after exposure to kerosene fumes. His general practitioner expressed the view at the time that he had a mild form of asthma. 5 Mr Vary underwent regular medical assessments, including assessments related to lung function while he was a member of the Australian national swimming team. He was never diagnosed as suffering from asthmatic airways condition, nor was he ever medicated for asthmatic airways condition, and he has never had an asthma attack. 6 To prove that he does not suffer from an asthmatic airways condition, Mr Vary provided Dr Kirby with a report from Dr Young, Head of the Department of Respiratory Medicine at the Royal Prince Alfred Hospital School of Medicine. Mr Vary also provided letters from Dr Heiner, a consultant thoracic physician, in relation to his fitness. Both doctors found that there was "no evidence" that Mr Vary suffered from asthma. Despite those opinions, Dr Kirby refused to allow Mr Vary to undertake the exposure test, on the basis that "he had possibly suffered childhood asthma". No evidence filed by respondent 7 The applicant filed points of claim, an affidavit of Mr Vary dated 6 May 2009 and a report of Dr Heiner, Mr Vary's medical specialist. After receiving Dr Heiner's report, Dr Kirby told the respondent that he would be in a position to clear Mr Vary to undertake the SPSU training course provided Dr Heiner could clarify certain points in his report. Dr Kirby clarified those points in a letter to Dr Kirby dated 26 August 2009. Discrimination 8 Asthma or an asthmatic airways condition is a "disability" within the meaning of s 4 of the Anti-Discrimination Act 1977 (AD Act). A disability includes past, presumed and future disabilities: AD Act, s 49A. Paragraphs (b), (c) and (d) of s 49A apply because the respondent thinks that Mr Vary: a) has an impairment of the lungs due to a "history" of childhood asthma; and/or b) had or is thought to have had, impairment of the lungs due to the "history" of childhood asthma; and/or c) in the future will have impairment of the lungs due to a "history" of childhood asthma. 9 We are satisfied that the respondent's conduct in refusing to allow Mr Vary to undertake the SPSU assessment process constitutes a breach of s 49D(2)(b) or (c) of the AD Act. Those provisions make it unlawful to discriminate against an employee on the ground of disability '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 by 'subjecting the employee to any other detriment'. The initial and continued refusals constitute a denial of access to opportunities for training, a denial of access to opportunities to earn special allowances associated with holding a position as a part-time operative of the SPSU and a denial of access to opportunities to earn overtime and other work related allowances associated with the performance of work as a part-time operative of SPSU. 10 The respondent discriminated against Mr Vary by treating him less favourably than it would have treated a person who it did not think had a disability in the same circumstances. That treatment was on the ground of Mr Vary's presumed disability. The applicant also alleged that the respondent has discriminated 'indirectly' against Mr Vary as defined in s 49B(1)(b) but given our finding, it is not necessary to determine that issue. The complaint is substantiated. Remedies 11 The respondent has agreed to allow Mr Vary to complete the full assessment course for entry into the SPSU at the next available opportunity, which is 31 March 2010. We also understand that the respondent has agreed to re-credit Mr Vary for seven days leave he has had to take as a result of the respondent's decision. 12 Mr Vary also seeks damages for pecuniary and non-pecuniary losses. The Tribunal has power to order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct: AD Act, s 108(2)(a). The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to Mr Vary, not to the Police Association of NSW: AD Act, s 108(4). 13 Pecuniary losses. The monetary losses which Mr Vary has suffered as a result of the respondent's conduct are: a) expenses associated with engaging Dr Heiner and obtaining a report from him (total: $888) b) the costs of three return flights between Coffs Harbour and Sydney (June 2007, August 2007 and September 2009) at $250 each ($750); two nights accommodation in Sydney, associated with attendance at the ADB, the Tribunal and case preparation at $90 each ($180); c) three years of lost Grade 1 "Special Duties Allowance" associated with SPSU duty at $904.00, $888.00 and $871.00 respectively ($2663). d) estimated lost earnings associated with a denied opportunity to earn overtime for SPSU callouts over the previous three years (approximately $2350). TOTAL: $6831.00 14 Non-pecuniary loss. Mr Vary also seeks compensation for the humiliation and distress associated with the complaint process over the last three years. We accept that Mr Vary has suffered hurt, humiliation and distress as a result of his treatment by the respondent and award him $5,000. 15 If the applicant wishes to apply for costs it should do so within 21 days of the date of these reasons. Any application will be determined 'on the papers' after receiving submissions within a further 21 days from the respondent. ORDERS 1. The complaint is substantiated. 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. 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.