Kay v Department of Corrective Services [2010] NSWADT 118 (20 May 2010)

Last Updated: 1 June 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Kay v Department of Corrective Services [2010] NSWADT 118


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
Applicant:
Michael Kay

Respondent:
Commissioner, Department of Corrective Services




FILE NUMBERS:
071108 & 081012

HEARING DATES:
29, 30 July 2008, 4, 8 August 2008, 3, 4, 5, 6, 18 November 2008

SUBMISSIONS CLOSED:
18 November 2008



DATE OF DECISION:
20 May 2010

BEFORE:
Vass S - Judicial MemberSchneeweiss J - Non-Judicial Member Kelleghan D - Non-Judicial Member





LEGISLATION CITED:
Anti-Discrimination Act 1977 NSW

CASES CITED:
Zhang v Blinds Pty Ltd [2010] NSW ADT 91
Mitchell v Clayton Utz [2009] NSW ADT 266
Sivanantham v Commissioner of Police [2001] NSW ADT 44
Commissioner of Corrective Services v Aldridge [2002] NSW ADT 5

TEXTS CITED:


APPLICATION:
Disability Discrimination, Employment, Victimisation, Aiding and Abetting

MATTER FOR DECISION:



REPRESENTATION:
Applicant Representative:
In person
Respondent Representative:
T Anderson - Barrister


ORDERS:
The applications are dismissed


Reasons for Decision:

REASONS FOR DECISION

1. These proceedings arise out of complaints made by Mr Kay, the Applicant against the Commissioner , Department of Corrective Services, ("The Department"). The first relates to a complaint that Mr Kay had been discriminated against on the ground of disability and the Department aided and abetted the Public Service Association ("PSA") in its discrimination. Mr Kay alleges that the period of the discrimination occurred between 19 October 2004 and 19 October 2005. The nature of the complaint relates to alleged breaches of Sections 49A to 49D inclusive, Section 52 and Section 53 of the Anti-Discrimination Act 1997 NSW ("AD Act"). The subsequent complaint by Mr Kay against the Department alleges discrimination on the ground of disability and victimisation. Mr Kay alleges that the period of the discrimination occurred between September 2007 to 24 October 2007. The nature of the complaint relates to alleged breaches of Section 49A to 49D inclusive and Section 50 of the ADA.

2. The Department states that these applications should be dismissed.

The First Complaint

3. Mr Kay lodged a complaint on 19 October 2005 to the Anti Discrimination Board ("ADB") against the Department regarding allegations of discrimination by the PSA. This was the case even though the Department was named as a party to the complaint. Mr Kay subsequently wrote to the ADB requesting his complaint against the Department be investigated. Mr Kay stated that he was diagnosed with a psychiatric illness on 15 October 2004 and the Department, through its officers, had been trying to force him to resign on the ground of his disability. Mr Kay alleges that the Department aided and abetted the PSA in unlawfully discriminating against him. The substance of the allegations can be summarised as follows:

(a) Mr Kay witnessed an incident which involved an inmate and was concerned by the conduct of a number of IAT ("Immediate Action Team") officers;

(b) Mr Kay raised these concerns with his supervisor and the Governor of Parklea Prison Mr Strezelecki;

(c) as a result of the incident, a meeting of the PSA was held where a motion for strike action in relation to the return of 3 IAT Officers was passed;

(d) Mr Kay refused to strike and went about his normal duties.

(e) during the course of this meeting, a vote of no confidence was also taken against Mr Kay as a result of an email sent to Mr Bindley, the PSA delegate, which was disclosed during the meeting;

(f) Mr Kay complained to Mr Strezelecki and was referred to a psychologist by his treating doctor who diagnosed Mr Kay as suffering from severe depression;

(g) Mr Kay was off work for a period of time;

(h) Mr Kay complained that he did not receive the support of the PSA and was not returned to his full time duties at the IAT;

(i) a return to work program was implemented outlining a program for suitable duties;

(j) Mr Kay challenged the nature of the rehabilitation program and the suitable duties which he was offered. Mr Kay was given the opportunity to explore positions suggested by the rehabilitation provider however no vacancies existed at the time;

(k) as a result of medical examination by Mr Kay's treating doctors including his psychologist he was able to resume duties but not return to Parklea where he was originally employed;

(l) Mr Kay applied for several positions. He was unsuccessful in his applications and lodged an appeal with the Government and Related Appeals Tribunal ("G.R.E.A.T"). The appeals were declined on the basis that Mr Kay failed to satisfy the promotional committee that he had the relevant experience commensurate with the selection criteria.

4. Ultimately, Mr Kay's first complaint was declined by the ADB as lacking in substance. Mr Kay was notified on 10 September 2007 and the reasons for the decision are summarised below:

(a) Mr Kay failed to provide sufficient evidence to substantiate his allegations that the Department had discriminated against him on the grounds of disability;

(b) Mr Kay failed to demonstrate the Department had attempted to force his resignation on the basis that he suffered a disability;

(c) Mr Kay failed to demonstrate that the Department aided and abetted the PSA to discriminate against him.

The Second Complaint

5. Mr Kay lodged a second complaint with the ADB on 24 October 2007 against the Department alleging discrimination on the grounds of disability and victimisation. Briefly, Mr Kay alleges that he applied for a promotion to the position of Assistant Superintendant Armoury advertised by the Department and was unsuccessful. He subsequently lodged an appeal with G.R.E.A.T which was heard informally after submissions were made by the Department and Mr Kay.

6. Mr Kay's complaint relates to allegations that the Department provided written material to G.R.E.A.T, the purpose of which was to portray him as a person not of good character. Mr Kay summarises the material provided to G.R.E.A.T as follows:

(a) "an incident is alleged to have occurred at Parklea that infers that I was "involved" and without mentioning what happened, it is portrayed that the "incident" provided, according to 3 managers, that I "don’t get on with my peers"...

(b) "a reference is made to an email I was alleged to have sent to one of my previously mentioned managers during the "incident". It is claimed or inferred that I made a threat of self harm. This to is a lie."

(c) "a comment is attributed to my present "manager" Mr Mercer. It is claimed he states that "I have a fixation with guns"? This to is a lie..."

7. Mr Kay alleges that in providing this information, the Department further discriminated against him on the ground of disability and has victimised him for lodging a previous complaint of discrimination with the ADB.

8. The Department submitted in its response to the ADB that as a matter of practice, in an appeal to G.R.E.A.T, it is normal Department practice for a member of the human resources department to undertake a conduct and services check which may form part of the Department's written case. In response to the matters raised by Mr Kay the Department responded in the following terms adopting Mr Kay's numbering:

(a) The Department did not refer to an incident in its submission to G.R.E.A.T. The statement made was "comments have also been received from previous operational managers..... who all acknowledge that while the appellant had a substantial length of service there were concerns regarding his ability to get on with his peers and supervise a small team".

(b) The full text of the email referred to is, "Sir, please don’t give them what they want, if they want to hurt me it wont matter wher (sic) I am working at Parklea. I was that angry about their attitude it was either I write them a scathing letter or shot (sic) myself so I wrote the letter and told them a few home truths. MK"

(c) Mr Mercer did not state that Mr Kay had a fixation with guns, rather Mr Mercer said "For some reason Mr Kay has a fixation about working in armoury".

9. Mr Kay refuted the Department's response and requested that the matter be referred further to this Tribunal.

10. These proceedings were listed for hearing over a number of days. Mr Kay appeared in person even though he received the assistance of a solicitor in preparing part of his material. The Department was represented by Ms Anderson of Counsel.

Background

11. Mr Kay commenced employment with the Department in November 1979. He initially trained at Silverwater Correctional Centre. After he completed his training he transferred to Parramatta Prison where he served a 12 month period of probation. After he completed his probationary period, Mr Kay was appointed to the position of a prison officer on a full time basis. In or about 1984 Mr Kay was transferred to Parklea. In or about 1995 Mr Kay was promoted to First Class Prison Officer. During this period there were a number of promotional appeals by unsuccessful candidates to G.R.E.A.T in relation to Mr Kay's appointment to First Class Prison Officer. He retained the promotion. In or about 1990, Mr Kay was promoted to the Senior Correctional Officer and once again was the subject of several promotional appeals to G.R.E.A.T. He ultimately retained the promotion. In or about November 1997, Mr Kay was promoted to Assistant Superintendant at Parklea Prison. He subsequently lost this position on appeal to G.R.E.A.T in February 1998. He then returned to his previous rank of Senior Correctional Officer.

12. Mr Kay was subsequently placed in the position of Officer in Charge of the main gate at Parklea for a period of 12 years. In or about May 2004, Mr Kay was removed from this position. He makes no complaint against the Department in relation to this removal. He was subsequently placed in a temporary position of the Officer in Charge at the Immediate Action Team (IAT) at Parklea sometime in May 2004. It is in this role that Mr Kay makes the allegations which are the subject of the matters before this Tribunal.

13. Sometime in October 2004 a particular incident caused Mr Kay great distress. The IAT was called to respond to an incident where an inmate was alleged to have assaulted an officer. On arrival Mr Kay found the inmate was already secured in his cell. Whilst conferring with the area manager, Assistant Superintendant Faint, Mr Kay saw one of the officers who was previously removed from the IAT open the cell and remove the inmate from the unit in handcuffs. Mr Kay followed the officers and activated a video camera, taking footage of the scene. Mr Kay asked the officers several times where the inmate was being taken. Eventually he was informed the inmate was being taken to the clinic. Mr Kay arranged for the inmate to be seen by a nurse. Mr Kay then arranged for Mr Faint to take the inmate to the segregation unit. He kept filming with the video camera. Mr Kay concluded that something untoward involving the particular inmate and the officers occurred the day after the incident. Mr Kay was encouraged to report the incident to Mr Strezelecki.

14. After this incident, Mr Kay felt that he was the subject of gossip and unfair treatment. He alleges that officers complained that he was not doing his job. Mr Kay felt very isolated by this incident and made a complaint to Mr Tim Green, the staff officer at Parklea. On 13 October 2004, a meeting instigated by Mr Bindley, was held to address a number of issues including a motion for strike action in support of the return of the 3 officers to the IAT. The motion to strike was passed. Mr Kay refused to participate in the strike and worked his normal shift. He prepared an email to his fellow officers and submitted a copy of that email to Mr Bindley the morning of 14 October 2004. The content of that email seems to be a catalyst. Mr Kay states that the contents of this email were confidential and were only intended to be read by Mr Bindley. Mr Kay discovered that Mr Bindley read that confidential letter to the attendees of the meeting. Mr Kay was not present at that meeting.

15. Mr Kay states that during this meeting a motion of no confidence was passed to the effect that he should be removed from the IAT. Mr Kay alleges that during this meeting he was presented as unstable and therefore unsuitable to work in that position. As a result of this incident, Mr Kay consulted his general practitioner at the time, Dr Gee, and subsequently took sick leave on 15, 16 and 17 October 2004.

16. Dr Gee diagnosed Mr Kay as suffering a psychological condition and the medical certificate stated that he was experiencing severe depression. Mr Kay was certified unfit for duties until 22 October 2004. He was prescribed anti-depressants and was also given an urgent referral to a local psychologist, Mr Graeme King.

17. Mr Kay elected not to remain away from work and returned to work on or about 18 October 2004. During this period, Mr Kay consulted Mr King on 15, 18, 22, 29 October and 3 and 12 November 2004.

18. Upon his return to work in October 2004, Mr Kay attended a meeting with the Deputy Governor Mr Bolger and Mr Strezelecki. During the course of that meeting, Mr Kay was informed that both Mr Bolger and Mr Strezelecki supported him fully. In the interim, Mr Kay submitted written reports to the Department complaining of incidents of bullying and harassment by union delegates Messrs Bindley, McCauley, Burns and Rawson (Exhibit 43). When that report was submitted, Mr Kay alleges that he was approached by Mr Bindley in a threatening and offensive manner he was abusive and refused to represent him.

19. Mr Kay consulted Dr Gee on 27 October 2004. Dr Gee recommend that Mr Kay remain off work. Mr Kay did not follow the advice of Dr Gee. On 27 October 2004, Mr Kay alleges that Mr Bindley threatened him and used abusive language. Mr Kay reported this incident to Mr Bolger and Mr Strezelecki.

20. A meeting was convened by Mr Strezelecki on 29 October 2004 which was attended by Mr Bindley and Mr Kay. During the course of that meeting, Mr Kay alleges that the incidents of threats and harassment were not discussed or put to Mr Bindley. Rather, a less confrontational approach was taken during that meeting. Mr Strezelecki advised Mr Bindley "Tell your boys to back off or I will start shipping people out".

21. After these incidents, Mr Kay alleges that the Department changed the roster so that the existing IAT staff were going to be replaced with a new list of staff. This took effect on 7 November 2004. Mr Kay alleges that he found his name on the list of reserves. He noticed that he was not rostered for duty in the IAT on 9 November 2004 but was rostered as an officer in general duties. Mr Kay subsequently consulted Dr Gee on 9 November 2004 and was provided with a WorkCover certificate certifying him unfit until 15 November 2004.

22. Mr Kay then consulted Mr King, and submitted a workers compensation claim which was accepted by the Department's Workers Compensation Insurer, Suncorp/GIO. He was also required to consult the Department's rehabilitation provider, Ms Gillian Mee, to provide assistance to Mr Kay in relation to future placement and also assist in his return to work programme.

23. Mr Kay alleges that sometime on 15 December 2004 he attended a meeting at Parklea with Mr Bolger, Mr Green, Ms Parkes (OHS&R Coordinator) and Mr Keith Picton, who was part of the occupational health and safety unit. Mr Kay made enquiries of Mr Bolger regarding the status of the reports he submitted about threats and harassment from Mr Bindley. Mr Bolger advised that he was not aware of the status of those reports and required information to investigate further. During the course of this meeting, Ms Parkes advised Mr Kay that it was the Department's intention to return Mr Kay to pre-injury duties. Mr Green suggested that Mr Kay should consider a position at the Central Armoury at Windsor. Mr Kay then had a conversation with Mr Ivan Dowling, the officer in charge of the Central Armoury, who advised him that Ms Parkes had undertaken an assessment of the workplace to ascertain its suitability for Mr Kay.

24. In or about 21 January 2005, Mr Kay met with Ms Mee. She indicated to Mr Kay that she was endeavouring to obtain a position for him at the Central Armoury on the basis that she did not consider Mr Kay fit to return to his position at the IAT at Parklea.

25. On 4 February 2005, Mr Kay attended a meeting at Parklea with Ms Parkes, Mr Bolger, Mr Green and Ms Mee to discuss his rehabilitation. During the course of that meeting, Mr Kay was offered a part-time position at the Operations Branch at head office in Sydney which he declined. He was encouraged by Ms Mee to accept this position but he refused.

26. In or about February 2005, Mr Kay states that he wrote to the Minister, and the then leader of the Opposition, Mr Brogden, complaining that he is not being returned to his pre-injury duties (Exhibit 54).

27. In or about March 2005, Mr Kay consults Dr Gee who encourages Mr Kay to accept the position at the Operations Branch at head office. Mr Paul Irving, the Department's Executive Director of Human Resources writes to Mr Kay to accept the position in the Operations Branch where he will be provided with support to accommodate his travel needs and restrictions. Dr Gee provides Mr Kay with a WorkCover certificate some time in April 2005 for a period of 4 weeks stating that Mr Kay is fit for suitable duties between 18 April 2005 and 18 May 2005 but not at Parklea.

28. On 20 April 2005, Mr Kay attends a meeting at head office with Ms Mee who advised him that as part of Mr Kay's return to work plan, a position had become available at the John Morony Correctional Centre ("JMCC"). Mr Kay commences in this position in or about 27 April 2005 and met with the Governor, Ms Bernadette O'Connor, who advised Mr Kay of his duties and responsibilities. Mr Kay discovers upon commencement that he is rostered to be working two days on with three days off. He complains that he has lost the opportunity to work overtime and does not have the opportunity for promotion. Mr Kay complains to Dr Gee that he does not wish to continue in this role. Mr Kay stated that he was never rostered in the main gate position at JMCC. He also stated that he observed his name on the roster whiteboard and a notation next to it "not to work in main gate or D Unit". These positions are the only positions which have access to firearms and Mr Kay's return to work plan recommended that he should not be placed in a position where firearms are accessible. Mr Kay sees Mr King sporadically during this period. Mr Kay is provided with a copy of his return to work plan by Ms Mee on 14 July 2005. Ms Mee advises Mr Kay of the restrictions which have been placed on him. He was advised by Ms Bronwyn McCray, another rehabilitation provider who was a colleague of Ms Mee, that Mr Kay should consider taking some leave. Mr Kay states that he subsequently attended a meeting with Governor O'Connor who advised Mr Kay that she was concerned with his mental state and encouraged him to take leave. Mr Kay subsequently consulted Mr King and then subsequently took sick leave.

29. Dr Gee provides Mr Kay with a certificate on 5 August 2005 certifying him fit for pre-injury duties. Mr Kay continues his employment at JMCC with the view to exploring different positions in other locations. Ms O'Connor is subsequently replaced with the new Governor, Mr Mercer, who encourages Mr Kay to contact him in circumstances where he requires assistance or needs to have discussion regarding his ongoing employment.

30. In or about March 2007, Mr Kay submits an expression of interest to work in the State Armoury. Mr Kay does not receive a response to this application. In or about April 2007, Mr Kay applies for an advertised role of Assistant Superintendent State Armoury (Exhibit 52). The position required compliance with strict assessment criteria. Mr Kay was one of 27 applicants but was not successful. Mr Kay lodged an appeal with G.R.E.A.T. During the course of this appeal, Mr Kay made representations to G.R.E.A.T about the possible bias of tribunal members and sought their removal. Furthermore, Mr Kay stated that in the course of the appeal, the Department was represented by legal counsel who was purportedly the same counsel handling the discrimination complaint for the Department. G.R.E.A.T accedes to Mr Kay's request to remove the Department's representative who is subsequently replaced by a person from TAFE.

31. Both the Department and Mr Kay made written submissions to G.R.E.A.T. The hearing was not recorded. Mr Kay's submissions dealt primarily with his extensive employment experience. Mr Kay was unsuccessful in his appeal.

32. In or about October 2007, Mr Kay applied for the position of Senior Assistant Superintendant at the State Emergency Unit. Mr Kay was not granted an interview. Mr Kay was advised that his application was not competitive.

33. As a result of the assistance of Mr Greg O'Donohue, the senior industrial officer from the PSA, Mr Kay was offered a position with the State Emergency Unit in Windsor and has been performing that role since 26 January 2008 (Exhibit 42). Since then, Mr Kay has seen positions in armoury and another position as Assistant Superintendent in the State Emergency Unit advertised which he has not applied for.

The Evidence

34. Mr Kay attempted to present his evidence in the best manner he possibly could. Given that he was unrepresented, occasionally he came across as confused particularly in relation to how he believed the Department discriminated against him. Accordingly, the Points of Claim which Mr Kay filed and subsequently amended were more of a narrative rather than a crystallisation of issues. Mr Kay relied on the ADB's President's Reports dated 20 September 2007 and 5 February 2008, his statements dated 14 March 2008 and 8 August 2008, numerous reports from Ms Mee, Dr Gee, Mr King, various Department policies and procedures, statements to Suncorp/GIO by Mr Strezelecki and Mr Green, emails by Mr Kay to Mr Strezelecki, and the G.R.E.A.T reports. The Department relied on Points of Defence, statements by Mark Wilson dated 8 September 2008 and 3 November 2008.

35. Mr Kay believed that because of his disability namely his depression and anxiety he experienced discrimination. He further contends that he was victimised in his applications he made for promotion and the subsequent G.R.E.A.T appeals, because of his complaint to the ADB.

36. The trigger for the first of a series of complaints of discrimination arises out of the PSA meeting on 14 October 2004, where a vote of no confidence was taken against Mr Kay. Mr Kay discovered that this had occurred and in his own words, he had a "complete breakdown". It is noteworthy that during this period Mr Kay was in a role as temporary Officer in Charge of the IAT pending special internal recruitment action to fill vacant positions within the unit. Mr Kay had applied for but was unsuccessful in winning a position with the IAT. Post interview counseling revealed that Mr Kay's unsuccessful application was attributed to his unwillingness to undergo a special fitness assessment required for the position and unsatisfactory interview performance.

37. After the vote of no confidence, Mr Kay sent an email to Mr Strezelecki on 14 October 2004 in the following terms:

"Sir,

Please don’t give them what they want, if they want to hurt me it wont matter whare (sic) I am working at park leigh. I was that angry about their attitude it was either write them a scathing letter or shot (sic) myself, so I wrote the letter and told them a few home truths.

MK"

38. Mr Kay stated in his evidence that if he wasn't suffering from a disability he would not have written that email. There is no evidence to suggest that this was the case. Furthermore, in relation to the letter which was sent to the Union and read by Mr Bindley, there was no evidence that the letter should not have been disclosed, nor was there any to suggest that Mr Kay's imputed disability made him unsuitable for the position within the IAT. The motion of no confidence was quite distinct from any evidence of any disability.

39. Mr Strezelecki was perfectly entitled to be concerned with the threatened action proposed by Mr Kay in the email. Mr Strezelecki was also entitled to ensure that Mr Kay was provided with a work place that did not pose a threat to Mr Kay's health and safety. Various Workcover certificates were issued by Dr Gee, however Mr Kay did not consider it appropriate to take time off work initially as he was concerned that he would lose his role in the IAT. There is no evidence to support Mr Kay's concerns given the support offered by Mr Strezelecki and Mr Bolger.

40. Mr Kay was certified unfit for work between the period 15 November 2004 to 31 January 2005. On 1 December 2004 an injury management plan was prepared for Mr Kay to structure his safe return back to the workplace. During the course of the hearing Mr Kay disputed that he had been given a copy of the plan at the time that it was created and much time was spent on this particular issue. We do not accept that this constituted an act of discrimination.

41. As part of the rehabilitation program, Mr Kay had been given the opportunity to undertake duties at the Operations Branch at head office but declined this option on the basis that he had carer's responsibilities relating to his terminally ill father and his children. Importantly, however, he felt that this would present an impediment to his career. He was assured by Mr Irving that this would not be the case as it was the Department's concern to ensure Mr Kay made a full recovery.

42. In order to prove a complaint of direct disability discrimination Mr Kay must establish that he had the disability as defined in Section 4 of the AD Act. It is not an issue that Mr Kay had a disability, namely:

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

43. The Workcover certificates and medical reports by Dr Gee and Mr King, confirm that Mr Kay had a diagnosable psychiatric condition and he suffered from stress as a result of an incident at work.

44. He must also prove differential treatment and causation as contained in Section 49B of the AD Act which relevantly provides:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieve person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability who does not have such a relative or associate who has a disability, or

(b). requires the aggrieved person to comply with the requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (l)(a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) ...

(3A) ...

(4) ...

45. These elements of direct discrimination have been addressed in many cases before this Tribunal (see Zhang v Blinds Pty Ltd [2010] NSW ADT 91 at 26). In Zhang, the Tribunal also referred to the decision in Mitchell v Clayton Utz & Ors [2009] NSW ADT 266 where elements of direct disability discrimination were outlined [at 27]:

"The first component of the test for direct discrimination in Section 49B(1)(a) is the 'differential treatment' test. The treatment afforded to Mr Mitchell must be compared with the treatment that would have been afforded to a person without his disability in the same or similar circumstances. In the absence of an actual employee whose treatment could be validly compared with the treatment given to Mr Mitchell, a Tribunal would have to rely on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSW LR 13 per Mahoney JA at 19. The second component is 'causation'. At least one of the reasons for being terminated or being subjected to a detriment must be his disability (current or imputed). In Purvis v The State of New South Wales [2003] HCA 62: (2003) 217 CLR 92 although interpreting the words 'because of' rather than 'on the ground of', the majority of the High Court explained that the accepted test for causation in the context of anti discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the 'true basis' per Gleeson CJ at 102, 'genuine basis' (Gleeson CJ at 102), or the 'reason' (McHugh and Kirby JJ at 144) for that treatment. In a joint judgment with McHugh J, Kirby J rejected the 'but for' test which ask whether 'but for' the person's disability the allegedly discriminatory conduct would not have occurred."

46. Mr Kay must prove that the incidents he complains of occurred and related to one of the areas covered in Section 49D(2) of the AD Act.

47. Section 49D(2) of the AD Act makes it unlawful for an employer to discriminate against an employee on the grounds of disability:

(a) in the terms or conditions of employment which 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) thus objecting the employee to any other detriment.

48. Mr Kay stated he applied for a promotional position of Assistant Superintendent and was unsuccessful in his application. He alleged that he was discriminated against on the grounds of disability on the basis that the Department provided prejudicial information to G.R.E.A.T to prevent him from being promoted (Exhibit B). Mr Kay's appeal to G.R.E.A.T. relied on the fact that Mr Kay possessed greater merit. The composition of G.R.E.A.T. included an individual who Mr Kay objected to because of perceived bias. That individual was subsequently removed. As part of its assessment, G.R.E.A.T. examined Mr Kay's and Mr Baker's (the successful candidate) applications and found significant differences in relation to each application. Mr Kay's grounds of appeal G.R.E.A.T relied upon the following:

(a) He had superior qualifications in mechanical trade suitable to the workshop;

(b) he had the most extensive custodial experience of all applicants;

(c) his personal knowledge and experience in maintenance of fire arms;

(d) he had relevant qualifications and training courses within the Department and externally to instruct, direct and guide officers;

(e) he had operated at Assistant Superintendent level and above.

49. The appeal was ultimately disallowed for a number of reasons. Mr Kay had extensive experience and knowledge of operational requirements in correctional centres. He demonstrated ability to manage operational issues including inmate discipline and possessed sound communication skills and knowledge of occupational health and safety and change management. His general work history and his presentation confirmed his dedication to the Department and his enthusiasm for his job. However, Mr Baker demonstrated that he worked as a Senior Correctional Officer in State Armoury. He acted up as an Assistant Superintendent on numerous occasions in State Armoury and on a permanent basis since October 2006. Mr Baker met all of the selection criteria and also met the technical criteria, namely he "... demonstrated competency in the repair and the calibration of Ammo Hood Automated Loading Machines and he held relevant armourer certificates."

50. We are not satisfied that the Department breached Section 49D(2) of the AD Act.

51. Mr Kay made a second application for a promotion to the position of Senior Assistant Superintendent of the State Emergency Unit. Mr Kay was not interviewed for this application because he generalised his claims of relevant knowledge, skills and experience and failed to provide specific examples and evidence against the selection criteria. Mr Kay alleges that the Department provided written material to G.R.E.A.T, the purposed of which was to portray him as a person not of good character. He alleges that in providing this material the Department further discriminated against him on the ground of disability and has victimised him for lodging a previous complaint of discrimination. Mr Kay must satisfy this tribunal that the Department breached Section 50 of the AD Act which relevantly provides:

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought the proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other persons.

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intents to do, any of them.

(2) Subsection (1) does not apply to the subjecting or a person to a detriment by reason of allegation made by the person if the allegation was false and not made in good faith.

52. As part of his complaint of discrimination in employment because of his disability and victimisation, Mr Kay contends that the prejudicial additional information provided to G.R.E.A.T led to the appeal being disallowed. He alleges that the following additional information was provided to G.R.E.A.T as a result of his complaint of discrimination:

(a) that he was the subject of several firearms offences;

(b) a letter of warning following a conviction of larceny;

(c) he was counselled in terms of breaching the Department's code of conduct due to inappropriate display of Department pictures on the website.

53. Mr Kay alleges that the promotional committee should not have been provided with the information referred to above as such information was misleading.

54. The Department relied on the statement of Mr Mark Wilson filed in these proceedings on 8 September 2009 (Exhibit C). Mr Wilson gave evidence that he has been employed with the Department since 1983 and has been involved in convening many selection panels and has often participated as a member of those panels.

55. Mr Wilson conducted a short list for the position of Assistant Superintendent of the State Emergency Unit. He received 23 applications including Mr Kay's. He was involved in compiling a short list in accordance with the merit and selection principles prescribed by the New South Wales Public Sector. From the applications made 7 people were interviewed. Mr Kay was not interviewed for this position as there were a number of selection criteria where Mr Kay failed to demonstrate any of the necessary skills. Mr Wilson stated that Mr Kay's application claimed knowledge and experience in general terms and he relied on his length of service. Other candidates who were interviewed provided examples which demonstrated particular achievements. Mr Wilson stated in his evidence that he was not aware of any issues between Mr Kay and the Department or other officers at the time of the short listing.

56. Mr Wilson was also involved in the selection process for the position of Senior Assistant Superintendent applied for by Mr Kay. In this case, 24 applications were received and 6 candidates were interviewed. For the same reasons articulated above, Mr Kay's application was not successful. He gave a further example of Mr Kay's inability to stipulate his experience against the selection criteria.

"... it is my humble submission that my knowledge ... is ... more extensive and has greater depth than of any applicant ..."

57. Mr Wilson's evidence was credible. He did not have anything to gain in refusing Mr Kay's application. He was not challenged by Mr Kay on any of the selection criteria or the reasons why the selection criteria were applied as they were. There is no reason to disbelieve Mr Wilson when he stated that he was not aware of any issues between Mr Kay and the Department or other officers.

58. Mr Kay was cross examined by Ms Anderson for some time on the question of the G.R.E.A.T appeals. It appeared initially that Mr Kay sought a review of the G.R.E.A.T appeals, however this Tribunal does not have the jurisdiction to deal with such matters. Mr Kay was asked a series of questions in relation to his promotion and also steps that he had taken to appeal decisions involving promotions of other colleagues. He conceded that in the course of his career, positions he applied for and was successful in were the subject of an appeal to G.R.E.A.T. There does not appear to be any evidence that the selection process or the committee itself was influenced in any way by Mr Kay's complaints of discrimination to the ADB. The submissions by the Department and the G.R.E.A.T report do not refer to Mr Kay's disability, any complaint of discrimination or any of the earlier correspondence.

59. Accordingly we do not accept that Mr Kay has made out the grounds necessary to satisfy Section 50 of the AD Act that the Department subjected Mr Kay to a detriment in his applications for promotion.

60. During the course of lengthy cross examination, Mr Kay proceeded to outline what he believed the Department's numerous acts of ongoing discrimination were. This was a useful way to enable the Tribunal to crystallise the additional complaints Mr Kay had. The Department did not oppose this process. The additional complaints are set out below.

"Mr Kay alleged that the Department failed to act properly at the time when Mr Kay complained about Mr Bindley's conduct in relation to bullying and harassment in the work place."

61. Mr Strezelecki and Mr Bolger were supportive of Mr Kay. They had full confidence in him. The Department also had a responsibility to ensure that it was complying with its obligations to ensure that Mr Kay was provided with suitable duties and to ensure that the Department maintained an environment that was fit for his health and safety. Mr Bolger stated that he required further particulars of substance to fully investigate the matter. Mr Kay did not deny this occurred. We are not satisfied that this is a ground of discrimination.

62. The PSA's vote of no confidence in Mr Kay was demonstrative of Mr Kay's unstable behaviour. The PSA demanded the removal of Mr Kay as the head of the IAT.

63. No member of the PSA was called by Mr Kay to give evidence in relation to what occurred at that meeting where the vote of no confidence was taken. The resolution was not produced by either party. There was no reference in the motion to Mr Kay's disability or that this was the basis of the PSA's motion. We are not satisfied that this is a ground of discrimination.

64. Mr Kay alleges that the Department discriminated against him on the basis that it failed to take any action in relation to the threats and harassment made by Mr Bindley.

65. Mr Kay conceded that he made a complaint to the ADB against the PSA. The complaint was ultimately discontinued because Mr Kay had been advised subsequently by another member of the PSA that there was no paid official at the meeting and therefore such a claim could not be sustained. Mr Kay conceded that at the meeting on the 14 October 2004, he did not know what was discussed or what the members said. He states that the acts of harassment by Mr Bindley and the vote of no confidence were acts of discrimination. We are not satisfied that this has been proven. It appears that the reason why the vote of no confidence was taken against Mr Kay involved his refusal to strike in support of the Union's insistence that members of the IAT who had been removed be reappointed. The vote of no confidence was not an act of discrimination. There is no evidence that a comparable person would have been treated differently.

66. Mr Kay alleges that the Department's failure to remove Mr Bindley constituted an act of discrimination. Mr Kay also alleges that Mr Strezelecki's failure to provide a written response to his report was an act of discrimination.

67. As part of the workers compensation investigation, Mr Strezelecki provided a statement to the workers compensation insurer in or about December 2004 some 2 months after the October 2004 incident which refers to Mr Kay's "paranoia" (Exhibit 18). It is very difficult to say what was intended by this comment however we do not accept that this comment imputed a disability to Mr Kay. It can only be construed as an unfortunate expression.

68. Mr Kay stated that during a meeting on 15 December 2004 at Parklea he became aware that certain reports he made regarding complaints of harassment and threats had gone missing. During the course of that meeting Mr Bolger indicated he would look at those reports. Mr Kay had not received any feedback on those reports and requested Mr Strezelecki to enquire of the status of those reports. Mr Kay also alleges that Mr Bolger undertook to make enquiries as to why Mr Kay had ceased to be rostered in the IAT position in October 2004. He had not received any response in respect of this issue. This does not prove that the Department did not investigate the reports because of Mr Kay's disability

69. Mr Kay alleges that the Department discriminated against him on the basis of his disability because he was not offered a role in accordance with a suitable return to work programme and he was required to undertake a vocational assessment.

70. Mr Kay conceded in cross examination that the medical certificate which was prepared by Dr Gee on 8 November 2004 supported Mr Kay's removal from his position in the IAT at Parklea. Mr Kay also conceded that he could not return to Parklea and therefore removing him from the IAT was necessary corollary. Furthermore, during the course of the meeting on 15 December 2004, Ms Mee and Ms Parkes formed the view that having regard to Mr Kay's psychological condition placing Mr Kay in the Central Armoury would not be preferable because he would be exposed to firearms. There can be no issue that both Ms Mee and Ms Parkes were working together to ensure that Mr Kay resumed suitable duties pursuant to the Workers Compensation Act (1987) (NSW) and Workplace Injury Management and Workers Compensation Act (1998) (NSW). Mr Kay alleges that his psychological injury was caused by a lack of support. There is no evidence either in the WorkCover certificates provided by Dr Gee nor in any medical evidence that this was in fact the case. Indeed, in the medical certificate by Dr Gee dated 8 November 2004 (Exhibit 16) he stated as follows:

"Mr Michael Kay has experienced an excessive amount of stress at work and is consulting with a Psychologist. I like to support the patient's difficult situation by requesting that he be transferred to a new work place where he will feel safe and happy. I am certain that this may be the best opinion under the current situation."

71. Mr King's report of 9 November 2004 (Exhibit 20) provided that Mr Kay had been referred to him by Dr Gee for treatment of "severe acute reactive stress". Mr King corroborates Dr Gee's view that Mr Kay should be transferred to a different work place. Mr King relates this to incidents which Mr Kay experienced since his transfer to the Immediate Action Team in early 2004 as the Officer-in-Charge where he experienced overt and covert conflict with some of his subordinates with respect to appropriate use of force. He goes on to say that Mr Kay's "perception" is that the administration of the policy does not seem to have received the unreserved reinforcement from his superiors. This does not suggest that Mr Kay had a lack of support. We do not accept that placing Mr Kay in another work place to comply with his rehabilitation plan on the advice of his doctors is an act of discrimination.

72. Mr Kay alleges that during his period of employment at the JMCC, the restrictions and comments on the roster whiteboard that Mr Kay should not be rostered on the main gate or D Unit constituted discrimination.

73. During the course of cross examination, Mr Kay agreed with Ms Anderson that it was the practice of staff at JMCC to put notes on the whiteboard and not contravene the orders of Governor O'Connor. It was his belief that the comments implied that he had a disability. Mr Kay did not satisfy this Tribunal that such a conclusion could be drawn.

74. Mr Kay alleges that Governor O'Connor placed the restrictions on Mr Kay not to work on the main gate and D Unit. Mr Kay alleges that this information imputed a disability to him and that disability was that he had a psychological injury and could not work with firearms. The evidence and reports by Ms Mee provided that Mr Kay should not be placed in a role with access to firearms. We do not accept this as a ground of discrimination and it is merely Mr Kay's conclusion that this was the case.

Conclusion

75. Mr Kay was granted leave during the course of the hearing to include additional allegations of discrimination and/or victimisation which made the hearing quite lengthy. The Department has at all times denied the additional allegations.

76. The incident which triggered the complaints to the ADB and ultimately gave rise to these proceedings is the vote of no confidence by the PSA and his removal from the IAT. Mr Kay did not satisfy this Tribunal that the Department through its officers and with the assistance of the PSA forced him to resign on the ground of disability. Nor is the Tribunal satisfied that Section 52 of the AD Act has been breached, namely that the Department has aided and abetted the PSA in unlawfully discriminating against Mr Kay. It is noteworthy that the Department's staff, namely Mr Strezelecki, Mr Bolger and Mr Green did not become aware that Mr Kay had a psychological condition until he telephoned Mr Bolger on 15 October 2004. In this regard, a belief that Mr Kay might have a psychological condition does not satisfy the criteria set out in Section 49A of the AD Act.

77. Mr Kay was issued with several WorkCover certificates stating he was suffering from a psychological condition but which he, on his own admission, hid the terms of those medical certificates from the Department because he feared that he might be removed from the IAT.

78. It appears that Mr Kay had a conflict with Mr Bindley and other members of the PSA but this conflict in essence emerged at the time when Mr Kay provided Mr Bindley with a copy of the letter marked 'confidential' just before the union meeting on 14 October 2004. Mr Kay's letters to the PSA exacerbated that conflict. This does not satisfy this Tribunal that that particular complaint by Mr Kay constitutes a ground of discrimination. It can only be seen as an internal dispute which did not result in less favourable treatment by the Department of Mr Kay. If Mr Kay was genuinely concerned that the acts of discrimination and/or victimisation had been committed by Mr Bindley and other members of the PSA, then the appropriate course would have been to pursue a complaint against them. Mr Kay elected to discontinue the complaint against the PSA. Mr Kay was therefore aware and clearly understood the distinction between the action that an employee undertakes in the course of employment and the action that an employee undertakes by virtue of his or her membership of the union. Mr Kay has not satisfied this Tribunal that the Department has breached sections 52 and 53 of the AD Act.

79. The Department had no reason to be aware that Mr Bindley might confront Mr Kay in relation to the letter he provided. The evidence revealed that Mr Strezelecki did take action with respect to Mr Kay's reports about Mr Bindley's behaviour and Mr Bolger informed Mr Kay that he was "more than willing to initiate appropriate investigations (action)" if he was given something of "substance".

80. We do not accept Mr Kay's contention that the Department's failure to provide Mr Kay with "proper written responses" constitutes a "detriment" within the meaning of Section 49D(2)(d) of the ADA. In other words, the failure to provide Mr Kay with "proper written response" did not constitute a loss, damage or injury that a reasonable person would consider to be real and not trivial (Sivananthan v Commissioner of Police [2001] NSW ADT 44 at 41 and 61).

81. The vocational assessment and rehabilitation undertaken by Ms Mee demonstrates the Department's position that it took its obligations to return to his pre-injury duties seriously. The evidence by Ms Mee revealed that Mr Kay attended meetings with Ms Mee and Mr King at various times where progress reports were provided regarding suitable positions which, in some circumstances, Mr Kay refused. Ms Mee and Mr King advised Mr Kay that it would be preferable for him to start exploring options of employment outside the Department. This course of conduct, in itself, is not discriminatory. It is merely an exercise by a rehabilitation provider to ascertain a worker's limitations and capabilities and where they should be employed. Mr Kay insisted that he was fit to undertake duties which involved access to firearms and he has complained that the Department's refusal and Ms Mee's lack of endorsement in providing him with the opportunity to fill those positions was an act of discrimination.

However Mr Kay's evidence was that:

1. He removed himself from Parklea on the basis that he could not continue to work in that environment;

2. he informed Mr Strezelecki and Mr Bolger that he was unable to return to Parklea;

3. he provided the Department with medical certificates supporting the position that he was unfit to work at Parklea and should be transferred. Both Dr Gee and Mr King provided medical certificates to the Department to that effect.

82. Mr Kay has also failed to prove that as part of the rehabilitation process the Department treated him less favourably than it treated or would have treated another person in the same circumstances or in circumstances which were not materially different (see Commissioner of Corrective Services v Aldridge [2000] NSW ADT 5 at paragraphs 44 to 47 and Sivananthan v Commissioner of Police [2001] NSW ADT 44 at paragraph 23).

83. Mr Kay conceded in the course of these proceedings that he had made numerous prior appeals to G.R.E.A.T where he was not afforded a promotion and was also the subject of appeals by other employees who similarly felt that Mr Kay should not have been promoted. Mr Kay complains that the failure to promote him or to afford him the opportunity to undertake the role of Acting Superintendent and Senior Assistant Superintendent is discriminatory conduct by the Department and he was victimised in the appeal to G.R.E.A.T because of his complaint to the ADB. We do not agree this is the case. Mr Wilson gave evidence, which we accept, of the selection process in assessing each application against the proper criteria. There is no evidence that Mr Wilson or any member of the committee considered Mr Kay's disability or imputed disability in making its decision. There was no reference to his disability or his complaint to the ADB in any material submitted to G.R.E.A.T. The submissions made by the Department relied on extracts from Mr Kay's personnel file. Moreover, the G.R.E.A.T report commends Mr Kay as an experienced officer but with no skills necessary to fill either of the roles. The candidate who was awarded the role had skills and experience specific to the selection criteria. Mr Kay's complaint that the selection committee was provided with information regarding Mr Kay's spent convictions, the Department's counselling in relation to inappropriate websites does not support his argument that he was victimised.
84. The applications are dismissed.