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HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (CTH)

No. H99/49

BETWEEN:

DAVID TAYLOR

Complainant

and

STATE OF WESTERN AUSTRALIA ( WESTERN AUSTRALIA POLICE SERVICE)

Respondent

REASONS FOR DECISION OF INQUIRY COMMISSIONER

PETER MARTINO

Date of Decision: 4 September 2000

Dates of Hearing: 7 – 10 & 13 March 2000

Date of Written Submissions: 7 April 2000, 12& 26 May 2000

Location of Hearing: Perth

Legal Representatives: Mr S A Walker instructed by Sussex Street Community Law Service Inc. for the complainant.

Mr M G Lundberg instructed by the Crown Solicitor for the State of Western Australia for the respondent.

1. INTRODUCTION

The complainant is a police officer in the Western Australian Police Service ("the Police Service"). From January 1996 to July 1998 he was a Senior Constable at Karratha.

The complainant claims that the respondent has unlawfully discriminated against him in his employment contrary to section 15(2) of the Disability Discrimination Act 1992 (Cth) ("DDA"). The respondent contends that as a member of the Police Service the complainant is not an employee.

This question was dealt with as a preliminary issue. On 8 December 1999 I decided that the relationship between the complainant and the respondent was an employment relationship for the purposes of section 15(2) of the DDA.

The complainant originally claimed that he had suffered both direct and indirect discrimination as defined in sections 5 and 6 of the DDA. The complainant abandoned his claim of indirect discrimination and pursued only his claim of direct discrimination as defined in section 5 of the DDA.

2. BACKGROUND

The complainant was born on 25 February 1962. He became a cadet in the Police Service in January 1979. He graduated as a police constable in 1981.

On 21 February 1985 the complainant was involved in a car accident. He suffered a serious closed head injury which required months of treatment. He returned to light duties in the Police Service at the North Perth Police Station on 20 June 1985. He was placed on full operational duties on 18 November 1985.

In early 1986 the complainant was transferred to the Perth Liquor and Gaming Branch of the Police Service.

On 5 July 1986 the complainant married. His wife was at that time a serving police officer.

On 15 January 1996 the complainant was transferred to the Karratha Police Traffic Branch. He remained stationed at Karratha until he was transferred to Belmont Police and Citizens Youth Club in July 1998.

3. THE COMPLAINT

The complainant claims that while he was stationed at Karratha the respondent discriminated against him on the ground of a disability. That disability is claimed to be a past head injury and a neuropsychological or psychological illness imputed to the complainant by the respondent.

The complaint is that the discrimination was unlawful in that the respondent discriminated against the complainant on the ground of that disability in his employment. In particular, the complainant alleges that the respondent discriminated against him in the following respects:

The complainant claims to have suffered loss and damage as a result of that discrimination.

4. THE DEFENCE

The respondent has provided details of its defence. The respondent:

(a) does not admit the complainant suffers a disability;

(b) denies that it discriminated against the complainant on the ground of any disability;

(c) contends that:

(d) denies that any of the matters claimed in the details of claim to have been done were done for the reason of or for reasons which included that the complainant was suffering from a disability;

(e) says that it took reasonable precautions and exercised due diligence to avoid its servants and agents engaging in conduct that comprised or would otherwise have comprised unlawful discrimination on the grounds of disability contrary to the DDA; and

(f) denies that the complainant has suffered any loss or damage.

 5. THE LEGISLATION

The relevant provisions of the DDA are as follows:

4 Interpretation

In this Act, unless the contrary intention appears:

...

disability , in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions; or

...

a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

...

(k) is imputed to a person.

5 Disability discrimination

(1) For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

10 Act done because of disability and for other reason

If:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);

then, for the purposes of this Act, the act is taken to be done for that reason.

 

15 Discrimination in employment

...

(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:

(a) in the terms or conditions of employment that the employer affords the employee; or

(b) 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

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

123 Conduct by directors, servants and agents

...

(4) Any conduct engaged in on behalf of a person other than a body corporate by a servant or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the first-mentioned person unless the first-mentioned person establishes that the first-mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.

In relation to section 4 of the DDA, the respondent does not dispute that the complainant suffered a serious head injury in the motor vehicle accident that disabled him at least for a period in the past. However the respondent does dispute that any disability was imputed to the complainant.

In determining whether or not there has been discrimination on the ground on disability I am required to make a factual enquiry as to whether less favourable treatment has occurred. The less favourable treatment can only have occurred if the respondent treated the complainant less favourably in circumstances that are the same or are not materially different from the way the respondent treated a person who does not suffer from a disability.

If that less favourable treatment has occurred it is then necessary to enquire as to the reason for that treatment. There must be a causal relationship established between the complainant's disability and any less favourable treatment accorded to him. What is involved is a factual enquiry which takes into account all of the surrounding circumstances. It is relevant to consider the respondent's reasons: Commonwealth v Humphries (1998) 86 FCR 324 at 333.

6. THE EVIDENCE

6.1 Arrival in Karratha

When the complainant arrived in Karratha there were three sections of the Police Service operating: the traffic branch (to which the complainant was transferred), a police station and a criminal investigation branch. In early 1996 the Police Commissioner announced that there would be changes to the structure and management of the Police Service. These changes were known as the "Delta Program" or the "Delta Reforms".

In September 1996 Superintendent William Matson transferred to Karratha as the Pilbara District Officer. Upon his arrival he had approximately 220 personnel under his command. One of the tasks assigned to him was to implement the Delta Program in the Pilbara. Part of that program was to integrate the police station, traffic office and criminal investigations branch.

6.2 Meetings between the complainant and Superintendent Matson

In around September 1996 Superintendent Matson called a meeting of senior officers to formulate a plan to integrate the police station, traffic office and criminal investigation branch. The complainant attended that meeting as a representative of the traffic office. This was the first significant contact between the complainant and Superintendent Matson. In his evidence-in-chief the complainant said that at this meeting he mentioned to Superintendent Matson that staff were generally unhappy about these changes and that Superintendent Matson appeared to get very annoyed with him and appeared to think that the complainant was questioning his authority. The complainant did not recall having any other significant contact with Superintendent Matson prior to March 1997.

Superintendent Matson's evidence was that prior to March 1997 he had two meetings with the complainant. The first was in around September 1996. Its purpose was to formulate a plan to integrate the three police offices. The second was in about November 1996 shortly after integration of the three offices at which Superintendent Matson explained the path of the Delta Program. At the completion of this meeting he asked if there were any questions. Superintendent Matson's evidence is that the complainant raised a question about the requirement to take paid meal breaks at the police station. It appears that Superintendent Matson's recollection is correct because when that version was put to the complainant by the respondent's counsel the complainant appeared to accept that there were two meetings and the cross-examination of Superintendent Matson by the complainant's counsel proceeded on that basis.

It appears from Superintendent Matson's evidence-in-chief that the complainant asked one question on this subject and that was the only question asked.

In cross-examination Superintendent Matson confirmed that the complainant asked only that one question concerning meal breaks.

In a statement given to the Commission by Superintendent Matson dated 13 November 1998 Superintendent Matson said of this meeting:

"In November 1996, Senior Constable TAYLOR commented on how the impact of the removal of existing work place practices (which were cost inefficient) would effect him. These repeated comments were made in response to my briefing on the future direction of the district which included stating the opportunities for personal development, the expected approach to planning management, and leadership. This briefing was consistent with the requirements of the Western Australian Police Service Delta Reforms impacting on the whole service. Specifically, he repeatedly stated how the discontinuation of the practice of taking home work vehicles, and not being allowed to have meal breaks at home would impact on him personally. He was adamant that these practices should continue."

This statement formed part of Superintendent Matson's evidence in chief at the hearing of this complaint and Superintendent Matson confirmed that the contents of that statement were true and correct to the best of his knowledge and belief. In cross examination Superintendent Matson said that he was confident that the complainant expressed concerns about the impact of the changes only once and that the paragraph of his statement made on 13 November 1998, which I have quoted above, was wrong.

Superintendent Matson said in evidence that he thought that the comment made by the complainant at this meeting was an inappropriate one, that it was odd behaviour and which surprised him. Superintendent Matson said that the recollection of this incident stayed with him.

6.3 Integration of the police and traffic offices

The Karratha traffic office was closed on 4 November 1996. Along with all other officers at that station the complainant was transferred to the police station. During the lead up to the transfer the complainant noticed that he was treated rudely by some officers from the police station. This behaviour of some officers continued after the amalgamation of the offices. Some officers would turn their backs on the complainant, walk away or roll their eyes when he began talking in a group. Some even refused to answer him. The complainant's evidence was that he did not know why some officers treated him in this way.

6.4 Communications to Superintendent Matson about the complainant

Very soon after he arrived in Karratha Superintendent Matson received informal communications about the complainant. These communications were made at social functions and through his staff officer Senior Constable Gordon. They were to the effect that there was something odd about the complainant's behaviour. There were more negative comments made about the complainant than any other officer. He was also told that the complainant had a "plate" in his head. Superintendent Matson became concerned about those communications and he went to his district officers to get some additional comments.

6.5 Cab charge vouchers

In December 1996 the complainant's wife and children moved temporarily to Perth for reasons associated with the health of a member of the complainant's wife's family. In January 1997 the complainant escorted a prisoner to Perth . He was selected for this duty so that he could visit his wife and children. He was given two cab charge vouchers. He believed he was entitled to use those vouchers to get from the airport to where his family were staying and back again and he used them for that purpose.

Some time later Superintendent Matson instructed Acting Inspector Cusworth to make enquiries about the use of the cab charge vouchers for this purpose. On 17 March 1997 Acting Inspector Cusworth sent to the complainant a net mail on the police computer network. He informed the complainant that he had used the cab charge vouchers for purposes for which they had not been supplied and that he was to repay the amount of $89.50.

The complainant did not believe that he had used the cab charge vouchers for unauthorised purposes. He responded to the net mail message by a short memo dated 17 March 1997 to Acting Sergeant Mills. In his statement of evidence-in-chief the complainant said that he heard nothing further about the matter. It appears that the complainant was mistaken in that respect. On 5 April 1997 he sent a further memo to Acting Sergeant Mills explaining in some detail why he did not believe that he should be obliged to refund the cost of the taxi fares. The memo dated 5 April 1997 came to Superintendent Matson's attention. Superintendent Matson felt the memo was expressed in terms that were not appropriate for an officer of the complainant's rank and experience and that fact together with the rumours he had heard about the complainant started to fit into a pattern of behaviour. He asked Acting Inspector Cusworth to make investigations and prepare a list of more important or substantial complaints or rumours about the complainant.

6.6 Acting Inspector Cusworth's list

Acting Inspector Cusworth prepared an undated list with five matters on it. They were not all matters about which Acting Inspector Cusworth had personal knowledge. The five matters in the list referred to allegations concerning the complainant getting lost in Karratha, the complainant urinating in a public place, the complainant commencing to interview a juvenile at a front public counter, an allegation of rough handling of a juvenile which was unfounded or not proved, and that an investigation was underway concerning an allegation of assault on a young male. Superintendent Matson estimated that he received that list in around early April 1997. He also made enquiries within the Police Service including the internal affairs unit as to the complainant's history.

6.7 Police Health and Welfare Branch

In April 1997 Superintendent Matson contacted the Police Service's Health and Welfare Branch ("the Health and Welfare Branch"). He spoke to Senior Constable Gerzina, a clinical psychologist registrar working under the supervision of Ms Dora Volleman. On 24 April 1997, Senior Constable Gerzina sent to Superintendent Matson a net mail in the following terms:

"Mr Matson

The man in question has a very nasty T/A in 1985 and suffered some head injuries. Judging by the medical documentation, it is not surprising that some bizarre behaviour is occurring.

I think the best avenue at the moment is to refer to a doctor, and forward a memo to Dora requesting further information and advice. It may be that D.T. will have to return to Perth for specialist review or even permanently.

I hope this helps

Mark G."

The complainant was due to relieve at Onslow police station for two weeks commencing Monday 28 April 1997. That appointment would have resulted in him receiving increased remuneration for that period. Superintendent Matson became aware of that appointment on or shortly before 24 April 1997.

6.8 Meetings between Superintendent Matson and the complainant

On 24 April 1997, after having received Senior Constable Gerzina's net mail, Superintendent Matson met with the complainant. At that meeting Superintendent Matson informed the complainant that he was aware that he had suffered a head injury in the motor vehicle accident. He also informed the complainant that he had received a number of complaints about him. Superintendent Matson told the complainant that he wished him to undergo neuropsychological testing. He also said that the complainant's relief at Onslow was cancelled because he had concerns regarding the complainant's behaviour and he had a duty of care to other officers and could not risk them being harmed. In his statement dated 13 November 1998 Superintendent Matson has said that this decision was based on his observations, advice from supervisors and Senior Constable Gerzina and the discussions held at the meeting with the complainant on 24 April 1997. Superintendent Matson said that he informed the complainant that he had not demonstrated the level of performance fit for duties in an isolated town and that relief duties at Dampier where closer support could be provided were more appropriate. Similarly in his evidence at the hearing Superintendent Matson said that the reason for cancelling the roster was his concern about the complainant's behaviour coming from all the sources which he received together with the net mail from Senior Constable Gerzina and the isolation of Onslow.

On Monday 28 April 1997 Superintendent Matson met with the complainant and his wife. The meeting was at Superintendent Matson's request. In his report to the Commander of the Northern Police Region dated 20 May 1998 and in his statement to the Commission dated 13 November 1998 Superintendent Matson has said that there was one meeting between him and the complainant and that the complainant's wife attended that meeting. In his statement dated 2 March 2000 prepared for the hearing of this matter Superintendent Matson said that the contents of those statements were true and correct to the best of his knowledge and belief. In evidence Superintendent Matson acknowledged that he was mistaken in that respect and that there were in fact two meetings, one on 24 April 1997 and the other on 28 April 1997 and that Mrs Taylor attended this second meeting.

At this meeting Superintendent Matson raised his concerns about aspects of the complainant's behaviour. He informed the complainant that arrangements would be made for him to see a doctor in Perth . He suggested in the meantime he relieve at Dampier. That relief would not provide to the complainant the increased remuneration that the Onslow relief would have provided to him. He also informed the complainant that he was to remain in the office during his time in Dampier.

The complainant was rostered to commence work at 10pm that night ie 28 April 1997. He did not do so as he was too distressed to work and he phoned in sick. The following day his wife telephoned Superintendent Matson and told him that the complainant had declined his offer to work at Dampier.

The complainant gave evidence that he found what had occurred at these meetings very distressing. He felt devastated and was unable to care for his own health or hygiene. He did not leave the house or answer the door or phone. He saw his general medical practitioner who placed him on sick leave for four weeks.

6.9 Review by Dr Groth-Marnat

The complainant gave evidence that shortly after 29 April 1997 he was contacted by the Health and Welfare Branch and informed that an appointment had been arranged for him to attend Dr Groth-Marnat, a clinical psychologist and neuropsychologist, in Perth on 5 and 6 May 1997. The complainant gave evidence that after his meetings with Superintendent Matson, he felt that he had no choice but to see Dr Groth-Marnat.

On Monday 5 May 1997 the complainant flew to Perth . He attended two 3 hour appointments with Dr Groth-Marnat. Dr Groth-Marnat wrote a report to Senior Constable Gerzina dated 7 May 1997. In that report, he stated that the complainant had made a remarkably good cognitive recovery from his injury in 1985. He said that there may be some mild slowing in problem solving processes and occasional memory problems which was likely to be exacerbated by stressful or competing demands in his life as well as emotional factors. In Dr Groth-Marnat's opinion the complainant was experiencing significant levels of depression and withdrawal from contact with friends and colleagues. He strongly urged that the complainant be referred for treatment of his depression. He expressed the view that "one particular area of concern which should be carefully monitored is his risk of suicide and the possible expression of his underlying anger. If possible and if appropriate, intervention should also involve his family and work. This process would also require considerable emotional support and is likely to take at least several months for progress to be realised". Dr Groth-Marnat also expressed the view that the complainant had "much to offer in that he appears dedicated, sincere, conscientious and honest".

It was obviously important for the substance of Dr Groth-Marnat's assessment to be conveyed to Superintendent Matson and to the complainant promptly. That did not occur. No good reason for the failure has been given. From his evidence Senior Constable Gerzina appears to have thought that that was a matter for Ms Volleman who was his superior and the manager of the case. Ms Volleman seems to have believed that Senior Constable Gerzina, being the person who had the day to day contact with the matter, would do so.

Superintendent Matson did not ever receive Dr Groth-Marnat's report. More importantly he did not receive a summary, extract or analysis of it from the Health and Welfare Branch.

On 22 May 1997 Superintendent Matson spoke by telephone to Senior Constable Gerzina. In that telephone conversation Senior Constable Gerzina informed Superintendent Matson that the report on the assessment of the complainant indicated that there was nothing unusual, that the complainant was "okay for operational duties" and that a report would follow, subject to clearances. On 1 September 1997 Superintendent Matson received from the complainant via one of his officers an extract of the report being the concluding summary paragraph. He took no action on it as he did not feel qualified to interpret it.

Superintendent Matson expected to receive some form of formal report on the outcome of the assessment of the complainant. It did not arrive.

Upon his return to Karratha the complainant remained depressed and his wife was very concerned about his well being. She contacted the Health and Welfare Branch to ascertain the results of Dr Groth-Marnat's assessment. She did not receive a prompt response to her enquiry. On 19 May 1997 she telephoned Senior Constable Gerzina. She asked if he had the results. He told her he had the report on his desk but he had not read it. He read to her what he said was a summary of the report. He told her that it said that the complainant had made a remarkable recovery and there were no residual effects. He made no mention of anything else. The complainant's wife asked for a copy of the report. Senior Constable Gerzina said that he could not provide it to her.

The complainant's depression continued to deteriorate. On 22 May 1997 he expressed suicidal ideas to his wife. She telephoned Mr Ken Thompson, regional coordinator of the North West Mental Health Service. Mr Thompson saw the complainant immediately and arranged for a Dr Kelly to prescribe medication for his depression. Mr Thompson also arranged for the complainant to see Dr Guy Windsor, a psychiatrist of the North West Mental Health Services. The complainant was on sick leave from 29 April to 28 July 1997 and returned to work on full operational duties on 29 July 1997.

6.10 Events on 21 August 1997

Evidence was heard about an incident that occurred on 21 August 1997. On that date at approximately 8:30pm the complainant was on duty at the Karratha Police Station. He believed the he was the senior officer on shift at the time. Senior Constable Plunkett was also on duty on that shift. She had previously been the acting shift sergeant. She believed that she was the officer in charge of the shift. However the roster did not indicate this and Constable Plunkett was not wearing an acting sergeant's badge.

A female prisoner was brought into the station. She appeared to be having breathing difficulties. The complainant became concerned as to the prisoner's health. He directed Constable Stafford to take her to hospital. Constable Stafford disagreed. A loud and heated disagreement between the two ensued. During that disagreement the complainant said to Constable Stafford that he "would take him out the back and sort the dispute out".

The complainant and Constable Snow then went on patrol in a traffic vehicle. The complainant drove the vehicle. While on patrol they received a radio message that a motorist had informed police of a road train which had very dim tail lights. The complainant drove at speed looking for that road train. Constable Snow gave evidence that the complainant accelerated to a speed of approximately 195kms an hour. In cross-examination the complainant said that he possibly could have reached that speed, that he may well have been driving at that speed and that he knows he was driving fast. Constable Snow also gave evidence that he estimated that they held this speed for between 10 - 20 seconds. In cross-examination the complainant said that it was at least 10 seconds. Constable Snow was concerned for his safety as there are many kangaroos in that area at night. He did not inform the complainant of his concern as he knew the complainant was already upset over the earlier incident and he did not want the complainant's concentration to waver while travelling at that speed. Two days later Constable Snow informed Acting Sergeant Mills of the incident.

Superintendent Matson received reports about these incidents. He also received a memo from Acting Inspector Fozard dated 27 August 1997. Acting Inspector Fozard was ordinarily the senior sergeant in charge of the Karratha Police Station. He had remained in contact with the complainant and his family when the complainant was on sick leave. He had advised the complainant while he was on sick leave and after he returned to "take things easy". He had also spoken to staff on the complainant's shift and asked them to "take it easy" on the complainant.

In his memo to Superintendent Matson dated 27 August 1997 Acting Inspector Fozard said that the events on 21 August 1997 combined with the previous incidents that led to the complainant's sick leave had created a situation where the complainant could not work at Karratha Station effectively. The potential for explosive incidents between him and other staff or the public was constant and was bad for morale, staff development and the safety and welfare of staff. He expressed the opinion that the complainant should work under the constant supervision of a sergeant when at work until whatever the cause of his problem was overcome. Acting Inspector Fozard admitted in evidence that he said this as a lay person having no experience in psychology. Acting Inspector Fozard also said that for the good of the station and, he believed, for the benefit the complainant and his family the complainant should be transferred to an area where he could have this supervision.

Superintendent Matson met with the complainant on 27 August 1997. At that time he still had no formal information from the Health and Welfare Branch informing him as to the result of the complainant's neuropsychological testing. He was concerned about both incidents that occurred on 21 August 1997 but particularly the driving incident which had the potential to be fatal. He met with the complainant and placed him on two work restrictions. First, the complainant was to be rostered for office duties on day shift only and until further notice to be directly and at all times supervised by a sergeant. Second, he was not to drive any police vehicle in the course of his duties. At the time of that meeting Superintendent Matson said that he felt that the behaviour of the complainant on 21 August 1997 indicated that he was a person whose emotions and judgements were affected by some kind of condition that he had. At that meeting or at sometime later Superintendent Matson made clear to the complainant that he was required to transfer out of the Northern Region.

On 2 September 1997 Superintendent Matson spoke to Ms Volleman and arranged for her to travel to Karratha. Ms Volleman prepared a rehabilitation program which commenced on 8 September 1997.

6.11 Long service leave application

In early November 1997 the complainant applied to take some of his long service leave. He did not receive any written response to that request. It was not until February 1998 that the application was approved. The person responsible for approving the complainant's long service leave was Sergeant Fozard. Sergeant Fozard said that at no time was there any difficulty in the complainant taking his long service leave. He recalled a general enquiry from the complainant to which he had responded that there would be no problem. He did not ever discuss the matter with Superintendent Matson.

6.12 Departure from Karratha

On 12 December 1997 Acting Superintendent Tolan sent a memo to the complainant informing him that he was to be transferred from the Pilbara District at the earliest opportunity. From 13 April 1998 to 1 June 1998 the complainant was on annual and long service leave. He returned to work on 1 June 1998 and on 11 July 1998 he transferred to the Belmont Police and Citizens Youth Club.

7. CREDIBILITY OF WITNESSES

There were differences in the evidence of various witnesses as to what occurred while the complainant was working in Karratha. Rather predictably each side attacked the credibility of the other side's witnesses. In the respondent's closing submissions it was contended that the complainant had a disability which affected his evidence. I was very surprised to receive such a submission from the respondent and I reject it entirely. I was surprised because the respondent's case was not presented on that basis. I reject it because the evidence does not support it.

The complainant attacked the evidence of the respondent's witnesses particularly Superintendent Matson. The complainant pointed to errors in his recollection. I am not surprised that there are errors in the recollection of witnesses. Such errors are almost inevitable when recalling events that occurred over a lengthy period. The complainant also made errors in respects of his recollection and this does similarly not surprise me.

I am satisfied that all of the witnesses who gave evidence at the hearing did so conscientiously and at all time doing their best to relate what occurred.

8. FINDINGS IN RELATION TO THE EVIDENCE

Before examining the areas of discrimination alleged by the complainant I should note once again that the disability alleged by the complainant is a disability that previously existed but no longer exists, and is a disability that was imputed to him. It was not the complainant's case that any of his conduct while he was in Karratha was the result of any present disability.

8.1 Scrutiny of the complainant's conduct

The complainant alleges that his conduct was more closely scrutinised than others and that this constituted discrimination in the terms and conditions of his employment. This claim is not particularised in the details of claim. In closing submissions filed on behalf of the complainant it is said that the scrutiny complained of is principally that involved in and following the April 1997 meetings with Superintendent Matson and those following the events of 21 August 1997. In my view the conduct complained of is not properly characterised as discrimination in the terms and conditions of employment. Undue scrutiny of an employee's behaviour on the ground of a disability could constitute discrimination by subjecting the complainant to "any other detriment" (section 15(2)(d) of the DDA). However I am not satisfied that the complainant has in this respect been subjected to less favourable treatment nor am I satisfied that the scrutiny of the complainant's behaviour was on the ground of the complainant's disability. The scrutiny complained of is that instigated by Superintendent Matson. Superintendent Matson has said that the reason for the steps taken in relation to the complainant were the complainant's conduct as observed by him and as reported to him. Having regard to the principles set out in the judgment of Kiefel J in Commonwealth v Humphries . I conclude that the conduct complained of under this heading did not amount to discrimination on the ground of disability.

8.2 Delay in processing the long service application

Sergeant Fozard gave evidence that there was never any difficulty in the complainant's long service leave application. He was very clear in his recollection of this. The complainant invites me to reject Sergeant Fozard's evidence because Sergeant Fozard could not explain the evidence that the complainant's name did not appear on one staff roster but it did appear on a later staff roster. I do not accept this submission and I accept the evidence of Sergeant Fozard in this regard.

8.3 Allegations made which the complainant did not substantiate

This claim is also not particularised in the details of claim. In the closing submissions filed on behalf of the complainant it is said of this claim that the complainant "relies on the submissions made above in respect of the conduct of the complainant having been more closely scrutinised than that of other police officers". For the reasons given by me in paragraph 8.1 I conclude that this complaint of discrimination has not been established.

8.4 Cancelling relief duties at Onslow

There were a number of reasons why Superintendent Matson cancelled the plaintiff's relief duties at Onslow. The reasons were described by him in his statement dated 13 November 1998 as follows:

"Based on my observations, advice from supervisors and Senior Constable GERZINA, and the discussion held that day, I removed TAYLOR from relief duties at Onslow, advising him that he had not demonstrated the level of performance expected for duties in an isolated town, and that relief duties at Dampier where closer support could be provided, were more appropriate."

The advice from Senior Constable Gerzina was the net mail of 24 April 1997. This stated that it was not surprising that some bizarre behaviour was occurring as a result of the traffic accident, that is, the advice was that it was not surprising that the head injuries suffered by the complainant in the motor vehicle accident in 1985 were causing bizarre behaviour. The word "bizarre" was Constable Gerzina's. Having regard to the provisions of section 10 of the DDA I conclude that one of the reasons for the cancellation of the relief duties was the complainant's past head injury and imputed behavioural problems caused by that past head injury. I find that the complainant has been denied benefits associated with his employment on the ground of his disability in contravention of section 15(2)(b) of the DDA.

8.5 Failure to provide the opportunity to carry out higher duties

The complainant did carry out higher duties in July/August 1996 and in October 1996. After that he was on leave for significant periods. Further the practice of the respondent was not to offer higher duties on the basis of seniority. I am not satisfied that the complainant has established that the failure to offer him the opportunity of performing higher duties was on the ground of a disability.

8.6 Involuntary transfer to Perth

Superintendent Matson gave evidence that the reasons for transferring the complainant to Perth included the difficulty the complainant had experienced at Karratha Police Station in terms of his clashes with other officers, his attitude to the integration of traffic duties and general duties policing and his behavioural performance generally. In Superintendent Matson's view it was in the best interests of the complainant to transfer to a metropolitan station. A basis for this view is to be found in Acting Inspector Fozard's memo dated 27 August 1997. In the closing submissions made on the complainant's behalf the seriousness of the events of 21 August 1997 is sought to be minimised. I do not accept that submission. I do accept that there was confusion as to who was the officer in charge on 21 August 1997 and that that confusion was in no way the fault of the complainant. I also accept that it was not only the conduct of the complainant that was inappropriate. However the conduct of the complainant, believing himself to be the officer in charge of the station, to invite another officer outside to a fight was in my view clearly inappropriate. In my view the complainant's conduct later that night of driving the motor vehicle with another police officer as a passenger at a speed of 195kms an hour at night time in an area where kangaroos were known to be present from time to time was also conduct that was quite inappropriate. The complainant placed his own life and that of another officer at risk for no good reason.

8.7 Bar from applying for positions above the 26 th parallel

I find that the complainant was not barred from applying for positions above the 26 th parallel. He did make applications for positions in that area. He was not successful and Superintendent Matson's failure to support such applications was no doubt a significant factor in that lack of success. However for the reasons given in 8.6 above I am not satisfied that the complainant has established that his failure to succeed in any of those applications was on the ground of a disability.

8.8 Rehabilitation Program

The rehabilitation program was devised by Ms Volleman. She gave evidence that it was based on medical advice and advice from the workplace that the complainant was not coping well. The evidence is that complainant had suffered from serious depression. The complainant has not established that the rehabilitation program was a disciplinary measure nor, in my view, that it was a consequence of any unlawful discrimination. I find that the rehabilitation program was as a result of the complainant's own conduct.  

8.9 Unnecessary neuropsychological examination and failure to communicate the results in a timely or appropriate manner

I do not accept that the complainant was forced to undergo examination by Dr Groth-Marnat. He agreed to do so. Nor do I accept that the review by Dr Groth-Marnat constituted less favourable treatment. The complainant does not contend that Dr Groth-Marnat was not qualified to carry out a neuropsychological examination of him. In fact he uses Dr Groth-Marnat's report in support of his case. While it may be that requiring an employee to undergo extensive medical or psychological testing or treatment may in certain circumstances constitute less favourable treatment, I do not accept that one assessment made after two examinations on consecutive days constitutes less favourable treatment. I am not satisfied that this aspect of the complaint has been made out.

I accept that there were unnecessary and inappropriate delays in the Health and Welfare Branch communicating the results of the examination to the complainant. These delays were the subject of a belated statement of regret by the respondent in its closing submissions. However, I am satisfied that those delays were not on the ground of any disability. They were the result of the failure of the Health and Welfare Branch to appreciate the need to act promptly on the receipt of that report.

8.10 Reasonable precautions and due diligence

As I have found that the complainant was the subject of unlawful discrimination in the cancellation of his Onslow relief, it is appropriate for me to consider whether the conduct of Superintendent Matson should not be regarded as the conduct of the respondent if the respondent took reasonable precautions and exercised due diligence to avoid the conduct (see section 123(4) of the DDA).

The respondent certainly had in place several written policies that it published to its officers, but there is a dearth of evidence as to how those policies were implemented. The respondent also points to the involvement of its Health and Welfare Branch. For reasons I have already expressed, the conduct of the Health and Welfare Branch was, at best, tardy. In any event it was addressed to the complainant's health and work, not to Superintendent Matson's conduct. I am not satisfied that the respondent has established this defence.

9. RELIEF

I find that the cancellation of the complainant's relief at Onslow constituted unlawful discrimination pursuant to section 15(2)(b) of the DDA. The loss claimed in respect of that cancellation is $600.00. That claim is made after deducting from the remuneration that would have been received an estimated $40.00 a day for accommodation and food. The respondent contends that the estimate of $40.00 per day is too low but does not say why. I accept the complainant's estimate. In addition, the complainant has suffered great distress after the meeting on 24 April 1997 when the relief was cancelled. The cancellation of the relief was effectively a decision that was published to officers in Karratha and Onslow because the complainant was due to commence the relief on 28 April 1997. While other matters may have also contributed to that distress, I am satisfied that the cancellation of the relief was the major factor in that distress. I determine that the appropriate compensation to allow for that distress is $5000.00.

In the circumstances it is my view that no further determination is appropriate.

10. DETERMINATION

Pursuant to s.103 of the DDA, I make the following declarations:

At the conclusion of the inquiry into this matter, the parties requested the opportunity to make further submissions on costs after publication of my reasons for decision. I therefore direct that a further telephone hearing be conducted in relation to this matter within seven days of the date of this decision to allow the parties to make submissions in this regard.

 

I certify that this and the preceding twenty-one pages (21) pages are a true copy of the Reasons for Decision of Commissioner Peter Martino.

Hearing Solicitor:

Date: 4 September 2000