El-Kassir v Commissioner of Police, NSW Police Force [2018] NSWCATAD 232

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: El-Kassir v Commissioner of Police, NSW Police Force [2018] NSWCATAD 232 Hearing dates: 6 June 2018 Date of orders: 05 October 2018 Decision date: 05 October 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: M. Tibbey, Senior Member E. Hayes, General Member Decision: Application dismissed. Catchwords: HUMAN RIGHTS – disability discrimination – whether disability taken into account – whether Applicant treated less favourably due to disability. Legislation Cited: Anti-Discrimination Act, 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW). Cases Cited: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Nicholls and Nicholls v Director General, Department of Education and Training (No 1) [2009] NSWADTAP20 Category: Principal judgment Parties: Hani El- Kassir (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: E. Raper (Respondent)

Solicitors: Self-represented (Applicant) K&L Gates (Respondent) File Number(s): 2017/00219645

REASONS FOR DECISION

Background and Procedural Matters 1. This was an application for determination of a complaint by the Applicant that he was discriminated against on the ground of a disability, relying on ss49A, 49B, 49C, 49D and 53 of the Anti-Discrimination Act 1977 (NSW). 2. The complainant lodged his complaint with the Anti-Discrimination Board on 14 March 2017 alleging that he was discriminated against in respect of the period 1 February 2004 to 14 March 2017. On 10 March 2017 he emailed that Anti-Discrimination Board stating: "I would like to make it crystal clear from the outset that this complaint relates to all events that had occurred right from the beginning of my involvement with the NSWPF Recruitment process that is from February 2004 to March 2017." 1. The Anti-Discrimination Board accepted his complaint for investigation only for the period 25 August 2016 to 14 March 2017. All events prior to that were declined and not investigated by the ADB. The Applicant was advised by the ADB by letter of 20 April 2017 that the ADB declined to investigate all matters predating 25 August 2016. 2. The ADB investigated the complaint of the Applicant and declined his complaint as lacking in substance pursuant to Section 92(1)(a)(i) of the Anti-Discrimination Act 1977. 3. On 31 October 2017 the Tribunal heard the Applicant's application for leave for the complaint to proceed to hearing before the Tribunal. Deputy President Hennessy granted leave to proceed pursuant to s93A(1) of the Anti-Discrimination Act 1977 (NSW), for the reasons set out in her decision. 4. Deputy President Hennessy noted at paragraph 4 of her Reasons for Decision that the President of the ADB had declined to investigate all allegations of the Applicant relating to the nine prior applications he made to join the NSW Police Force ( i.e. matters predating 25 August 2016). 5. On 13 April 2018, on the application of the Respondent, the Tribunal made orders that any cross-examination of Senior Constable Gardiner would occur by telephone. In the course of making the orders the Tribunal re-stated that the period that would be the subject of the hearing of the Tribunal is the period 25 August 2016 to 14 March 2017, being the period of the Applicant's most recent application to join the NSW Police Force. 6. At the commencement of the hearing of the matter on 6 June 2018, the Tribunal reiterated that the events the subject of the hearing were the events that occurred from 25 August 2016 to 14 March 2017. The Applicant was given time to consider whether he wished to proceed with the hearing or wished to withdraw his application. He elected to proceed with his application and with the hearing. 7. The Applicant applied to appear by telephone. The application was unopposed by the Respondent. Leave was given for the Applicant to appear by telephone pursuant to s38(1) of the Civil and Administrative Tribunal Act 2013 (NSW).