Lipman v Commissioner of Police [2015] NSWCATAD 250

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lipman v Commissioner of Police [2015] NSWCATAD 250 Hearing dates: 27 April 2015 to 4 May 2015 and 7 May 2015 Date of orders: 01 December 2015 Decision date: 01 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Lucy, Senior Member J Goodman-Delahunty, General Member A Limbury, General Member Decision: 1. The applicant's complaints of discrimination and victimisation are dismissed. 2. Any application for costs is to be made within 28 days of the date of this decision. 3. Following any application for costs, the Registrar is to list the matter for directions for the purposes of setting a timetable to allow each party an opportunity to make submissions as to costs. Catchwords: ANTI-DISCRIMINATION – Carers responsibilities – Discrimination in employment – Promotional opportunity advertised on full-time basis – Position accepted on full-time basis prior to negotiations for part-time work agreement – Offer of part-time work agreement required employee to work more hours than carers responsibilities allowed her to work - Whether a term of an employee's prospective employment is a term or condition of employment afforded to her – Whether employee's access to promotional opportunities limited or denied by requirement that she work more hours than she was able to work DIRECT DISCRIMINATION – Less favourable treatment - Identification of hypothetical comparator – Whether comparator is officer with no carer's responsibilities who requires a part-time work agreement – Whether characteristics extension may be taken into account for purpose of comparison INDIRECT DISCRIMINATION – Whether systemic discrimination formed part of applicant's complaint to Anti-Discrimination Board – Consequences of applicant's failure to plead substantive provision to support her claim of indirect discrimination – Whether parties conducted case on different basis from pleadings – Whether respondent required applicant to comply with a requirement or condition JUDICIAL NOTICE – Circumstances in which tribunal is entitled to take judicial notice of a fact – Whether tribunal entitled to take judicial notice of the proposition that the need to be absent from employment to provide care is a characteristic appertaining to a person with carer's responsibilities VICTIMISATION – Whether employee subjected to a detriment -- Whether part-time work offer was a sham – Whether any detriment to which the applicant was subjected was imposed on her on the grounds of her discrimination complaints Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Police Act 1990 (NSW) Police Regulation 2008 (NSW) Courts and Other Miscellaneous Legislation Amendment Act 2013 (NSW) Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth) Cases Cited: Wright v Commissioner of Police [2014] NSWCATAD 16 Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAP 67 Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 New South Wales v Amery (2006) 230 CLR 174 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Kelly v TPG Internet Pty Ltd (2003) 176 FLR 214 Coleman v Commissioner of Police, New South Wales Police Service [2001] NSWADT 34 Waters v Public Transport Corporation (1991) 173 CLR 349 Reddy v International Cargo Express [2004] NSWADT 218 Howe v Qantas Airways Ltd [2004] FMCA 242 State of New South Wales (NSW Police Force) v Whitfield [2012] NSWADTAP 27 Walker v State of New South Wales [2003] NSWADT 13 Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 Thomas v Mowbray (2007) 233 CLR 307 Correy v St Joseph's Hospital Ltd [2007] NSWADT 104 Stokes v Serco Sodexho Defence Services Pty Ltd [2006] NSWADT 295 Purvis v State of New South Wales (2003) 217 CLR 92 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Commissioner of Police, NSW Police Force v Butcher [2011] NSWADTAP 9 Salama v Qantas Airways Ltd [2002] NSWADT 119 Whiteoak v New South Wales [2014] NSWCATAD 45 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Bogie v The University of Western Sydney (1990) EOC 92-313 Burns v Sunol [2014] NSWCATAD 62 Burns v Sunol [2014] NSWCATAD 2 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Secretary for Foreign Affairs and Trade v Styles (1989) 23 FCR 251 Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 2211 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 Edwards v Hillier & Educang Ltd t/as Forest Lake College (2006) EOC 93-446; [2006] QADT 34 Dubow v Attorney-General's Department [2005] NSWADT 231 Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 Mitchell v Clayton Utz [2009] NSWADT 266 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 Category: Principal judgment Parties: Riannan Lipman (Applicant) Commissioner of Police (Respondent) Representation: Counsel: C Ronalds SC and A Howell (Applicant) K Eastman SC and A Sathanapally (Respondent)