Osborne v Director General Department of Premier and Cabinet [2012] NSWADT 91

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Osborne v Director General Department of Premier and Cabinet [2012] NSWADT 91 Hearing dates: 4,18 and 29 November 2011 Decision date: 14 May 2012 Jurisdiction: Equal Opportunity Division Before: Judicial Member C Huntsman Non-Judicial Member N Hiffernan Non-Judicial Member J McClelland Decision: The application is dismissed Catchwords: Disability Discrimination in employment; bipolar disorder; manic episode; misconduct; consequent criminal charges dealt with under Mental Health (Forensic Provisions) Act 1990; dismissal from employment as firefighter for alleged misconduct; whether discrimination on grounds of disability Legislation Cited: Sections 4, 49B and 49D Anti-Discrimination Act 1977 (NSW); sections 4 and 5 Disability Discrimination Act 1992 (Cth) Cases Cited: Collier v Austin Health [2011] VSC 44 Purvis v New South Wales [2003] HCA 62 Category: Principal judgment Parties: Christopher Osborne (Applicant) Director General Department of Premier and Cabinet (Respondent) Representation: Counsel Mr Milan (Applicant) Mr Easson (Respondent) Fire Brigade Employees Union (Applicant) Manager, Industrial Relations, Fire and Rescue NSW (Respondent) File Number(s): 111055

reasons for decision

Background 1This was an application by Mr Osborne, a former firefighter, alleging disability discrimination in employment, by the respondent, Fire and Rescue NSW (Director General, Department of Premier and Cabinet). The applicant lodged a claim with the Anti-Discrimination Board (the Board) on 8 March 2011, and on 27 May 2011 the matter was referred to the tribunal for determination. The applicant alleges that he was discriminated against on the ground of his disability, being bipolar disorder, when he was dismissed from his employment, for conduct/behaviour occurring during a manic episode. 2The respondent's case is that the behaviour was seriously inappropriate and that the misconduct was the reason for his dismissal. 3The alleged conduct/behaviour was that the applicant, whilst in uniform and on duty at the Sydney Royal Easter Show, indecently assaulted three women. It is also alleged that the applicant had been drinking alcohol and was intoxicated. The applicant was arrested and charged with three counts of assault with act of indecency and three counts of common assault and the offences were dealt with in the Local Court pursuant to the diversionary provisions of the Mental Health (Forensic Provisions) Act 1990, resulting in the applicant being subject to a Court Order imposing conditions requiring treatment of his mental illness. 4A further issue in this case was that the respondent terminated the applicant's employment by use of a rarely used provision, being clause 12(1)(b) of the Fire Brigades Regulation 2008 rather than by use of the usual disciplinary processes. The evidence at the hearing was that only one other person had been dismissed by use of clause 12(1)(b) several years previously, and that in the time that Commissioner Mullins has been Commissioner of the Fire and Rescue New South Wales, it has never been used. The use of clause 12(1)(b) in the applicant's case was also a cause of industrial action being taken by the relevant Union representing Mr Osborne and other firefighters (the Fire Brigade Employees Union "FBEU"). 5The applicant submits that embarrassment caused to the respondent due to words used by Ray Hadley, on the radio, in discussing the applicant's conduct, meant that proper processes were not followed by the respondent in the decision to terminate the applicant's employment. The applicant maintains, in detailed written submissions, that his employment was terminated for reason of his disability, and that the alleged misconduct was part of his disability. He maintains that a person without his disability would have been treated differently by the respondent.