Butcher v Commissioner of Police, New South Wales [2010] NSWADT 169 (7 July 2010)

Last Updated: 7 July 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Butcher v Commissioner of Police, New South Wales [2010] NSWADT 169


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Mark Butcher

RESPONDENT
Commissioner of Police New South Wales



FILE NUMBERS:
081058

HEARING DATES:
3, 4, 5 August 2009; 5 September 2009; 20 November 2009, 4 February 2010

SUBMISSIONS CLOSED:
2 March 2010



DATE OF DECISION:
7 July 2010

BEFORE:
Needham J SC - Deputy PresidentHiffernan N - Non-Judicial MemberAntonios Z - Non-Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977Police Act 1990
Police Regulation 2000
Police Regulation 2008
Public Sector Employment and Management Act 2002 Occupational Health and Safety Act 2000

CASES CITED:
Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336Waters v. the Public Transport Corporation (1991) 173 CLR 393Z v. the Commonwealth [1999] HCA 63; [1999] 200 CLR 177Purvis v. State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92Kirk v. Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v. WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 Victoria v. Macedonian Teacher’s Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47Sharma v. Legal Aid Queensland [2002] FCAFC 196Vickers v. the Ambulance Service of New South Wales [2006] FMCA 1232Kerr v. the Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721Boehringer Ingelheim Pty Ltd v. Reddrop (1984) 2 NSWLR 13Haines v. Leves (1987) 8 NSWLR 442State Transit Authority v. Sloey [1999] NSWSC 47New South Wales in Commissioner of Fire Brigades v. Lavery [2005] NSW SC 268Inspector Short v. the State of New South Wales (NSW Police) [2007] NSW IR Comm 138Alexander v. Commissioner of Police [2009] NSWIR Comm 3State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v. Cahill (No 2) [2009] NSWIR Comm 189Thiess Pty Ltd v. Inspector Stephen Jones (Work Cover Authority of New South Wales) [2009] NSWIR Comm 77-21Van Kooij against Fire and Emergency Services Authority WA [2009] WASAT 221Maxwell v. Commissioner of Corrective Services [2000] NSW ADT22Coleman v. Commissioner of Police (NSW Police Service) [2001] NSW ADT 34Lavery v. Commissioner of Fire Brigade [2003] NSWADT 93Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22Laycock v. Commissioner of Police, NSW Police [2006] NSWADT 261Chand v. Rail Corporation of New South Wales [2007] NSWADTAP 54 New South Wales Bar Association v. Howen (No 2) [2008] NSWADT 252Zhang v. Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24Correy v. St Joseph’s Hospital Ltd [2009] NSWADT 40 Kitt v. Tourism Commission (1987) EOC at 192Holdaway v. Qantas Airways Ltd (1992) EOCBurrows v. Commissioner of Police (1994) EOC 92-654The Briginshaw ‘Standard of Proof’ in Anti-Discrimination Law: "Pointing with a Wavering Finger" [2003] MelbULawRw 13; (2003) 27 Melbourne University Law Review 308 at 309-333Australian Anti-Discrimination Law; Text, Cases and Materials by Rees Lindsay and Rice (2008)

TEXTS CITED:


APPLICATION:


MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
B Docking, instructed by Oates and Smith
RESPONDENT
A Moses SC, instructed by Sparke Helmore


ORDERS:
The Tribunal:
a)Finds the complaint that the applicant has been discriminated against on the grounds of his disability, being diabetes, in contravention of s 49D(1)(a) and 49D(2)(b) substantiated in that:-
i) the respondent failed to return the applicant to unrestricted duties on or after 31 July 2006; and
ii) the respondent failed to give the applicant an opportunity to be considered for confirmation as Constable pursuant to reg 13 of the Police Regulations 2008 or alternatively reg 14 of the Police Regulations 2000;
b)Enjoins the respondent from continuing to extend the probation of the applicant given the factual findings of the Tribunal;
c)Orders the respondent to pay general damages to the applicant in the sum of $10,000;
d)Orders the respondent to pay damages to the applicant in a sum to be agreed or, failing agreement, to be argued before the Tribunal on a date to be fixed, such sum to reflect:-
i)loss of income arising out of loss of increments;
ii)loss of income arising out of the loss of the opportunity to undertake overtime, shift allowances, and other work related payments arising from normal policing duties;
iii)loss of superannuation benefits arising from the above losses;
iv)interest as and from 31 July 2006.
e)Directs the parties to agree on a timetable, or to provide the Tribunal with alternative timetables, as to submissions should they wish to argue the question of costs.


Reasons for Decision:

REASONS FOR DECISION

The parties and the proceedings
1 Mark Butcher, the applicant, is employed as a Probationary Constable in the New South Wales Police Force. He has been so employed since about 16 December 2004. He makes a complaint of disability discrimination pursuant to the Anti-Discrimination Act 1977 ("the Act") arising out of his suffering from diabetes Mellitus (often referred to as "type 1" or "insulin dependent" diabetes), a condition which he has lived with for most of his life. He was diagnosed with it at the age of six. He is now in his thirties.

2 Mr Butcher complained to the Anti-Discrimination Board ("ADB") and filed a complaint with that Board on 23 November 2007. The complaint dealt, principally but not exclusively, with the refusal by the respondent, on the advice of the Senior Police Medical Officer, to:-

a)refuse to confirm Mr Butcher to the rank of Constable; and

b)return him to fully operational duties and keeping him on restricted duties.

3 It is alleged that the conduct complained of has led to Mr Butcher suffering a detriment in that his pay is lower than a Constable, he is unable to do overtime or "user pays events" which would add to his income, and he has not had any incremental pay increases.

4 The complaint was referred to the Administrative Decisions Tribunal by the ADB as a result of a request to do so by Mr Butcher on 13 May 2008. The period of time over which the President accepted a complaint was 30 May 2006 to 23 November 2007 (see Ex A). The matter came on for hearing before the Tribunal on 3 August 2009, the parties having refined their cases by way of filing Points of Claim and Points of Defence. The evidence, which included evidence from doctors on both sides, was given partly on affidavit and partly orally over a number of days of hearing. Each party was very ably represented and the Tribunal has been greatly assisted in this difficult matter by the submissions of counsel, each of whom conducted the case with attention to detail and precision. Comprehensive written submissions were prepared and expanded upon in evidence.

5 The Points of Claim (Ex B) filed on behalf of the appellant set out the matters relied upon by Mr Butcher. They are:-

a)the applicant has a disability, that disability being Diabetes Mellitus (s 4 of the Act);

b)he was, and remains, employed by the New South Wales Police Force (s 4 of the Act);

c)he was unlawfully discriminated against on the ground of disability in the terms or conditions of employment (s 49D(2)(a of the Act);

d)he was unlawfully discriminated against on the ground of disability by a denial of access to opportunities for promotion, transfer or training, or other benefits in employment (s 49D(2)(b) of the Act);

e)he was unlawfully discriminated against by subjecting him to a detriment (s 49D(2)(d) of the Act).

6 The Points of Claim claims damages reflecting the loss of income, superannuation benefits and career opportunity, a reduction in earning capacity and hurt, humiliation and other trauma alleged to be suffered by the applicant.

7 In his Points of Defence, the Commissioner of Police admits the substantive facts but denies that there were any breaches of the Act as alleged. He also denies that being given the opportunity to resign constituted a "detriment".

8 The Points of Defence raises a "jurisdictional" defence, in that:-

"all of its relevant actions with respect to the subject matter of the applicant’s complaint were actions which were entitled to be taken pursuant to discretionary administrative powers under Division 4 of Part 6 of the Police Act 1990, Part 2 of the Police Regulation 2000 and subsequently Part 2 of the Police Regulation 2008.

The applicant cannot, via this complaint, seek to overturn the discretionary administrative decisions of the respondent".

9 The respondent further relies on various defences in the Act, being the "statutory authority" exception in s 54 of the Act, and that

"the respondent has a firm view held on reasonable grounds that it would not be in the interests of the applicant, members of the public and /or officers of the NSW Police Force for the Application to be placed in an operational role".

10 The basis for that firm view is said to be the applicant’s failure to acknowledge that some of his health problems arose from his diabetes; concerns as to his ability to manage his condition in an appropriate manner, doubts about his "good glycaemic awareness" based on various events including driving when feeling ill, and that he "continues to maintain his HbA1c levels above 8%, which potentially will have a detrimental impact on his health in the long-term".

11 The respondent does not admit any damage or loss, and denies that the applicant is entitled to the specific relief sought. Finally, he seeks a dismissal of the complaint as a matter of "jurisdiction or discretion".

Diabetes Mellitus (Type 1)
12 It would be useful, before embarking on an examination of the facts and the law, to set out an overview of the condition from which Mr Butcher suffers. Where the term "diabetes" is used in this decision, it should be taken to refer to Diabetes Mellitus (Type 1 insulin dependent diabetes) which is suffered by Mr Butcher, and terms such as "diabetic" should be read in the same way.

13 Diabetes is a chronic condition. It occurs when the body is unable to make insulin, which converts sugars (glucose) into energy. Accordingly, a lack of insulin results in elevated blood sugar levels. Diabetes can cause a number of quite serious health deficits, including damage to the eyes (retinopathy), kidneys (nephropathy) and brain (neuropathy).

14 Blood sugar levels can vary throughout the day and a glucometer can ascertain the blood sugar levels at any one time. The HbA1c test records average blood sugar levels over a series of time, usually months. It was described by Dr Chalkley, a consultant specialist endocrinologist, to be a "measure of average control". An HbA1c level of 8 is equivalent to an average blood sugar of 10 millimoles per litre, but there could be a level of variation of blood sugar levels over the time covered by the HbA1c test results. The general recommendation for diabetics is to maintain blood glucose levels between 4-8 mmol/L. "Normal" blood sugar levels – ie, the levels of a person without diabetes – are generally at the lower end of this level. A blood sugar level below 4 can induce hypoglycaemia (an acute condition with typical symptoms of sweating, tremor, hunger or blurred vision). Hypoglycaemia can be relieved by taking simple carbohydrates such as jellybeans or a sweet drink or Glucodin tablets. A mild hypoglycaemia which is not disabling can be resolved in this way. A severe hypoglycaemia (which is defined as hypoglycaemia which is temporarily disabling and which requires intervention of another person to recover) may require hospitalisation and treatment.

15 A diabetic needs to monitor his or her blood sugar, and to treat low or high blood sugar, to maintain a proper blood sugar level. There are a number of approaches to maintenance of blood sugar levels. Diet and exercise are ways of maintaining recommended blood sugar levels.

16 Good glycaemic control is keeping blood glucose levels close to normal range, that is, 4-6%. There is, however, a greater risk of hypoglycaemia if there is an attempt to keep sugars within this level. The alternative is to keep blood sugar levels at the higher range of appropriate levels, which reduces the risk of a hypoglycaemic event, but can have long-term negative health effects. Optimum glycaemic control involves both attainment of an appropriate HbA1c level, and stability of that level over a period of time.

The applicant’s evidence

17 The applicant gave evidence, both by way of affidavit sworn 20 February 2009 which became Exhibit C, and orally. He was cross-examined. Mr Butcher gave evidence that he was diagnosed with Type 1 diabetes Mellitus at an early age, and has since undergone regular medical management for the condition. He has had to monitor his blood sugar levels and adjust his insulin accordingly, by injection.

18 Prior to 2001 he used a drug called Actrapid twice daily. From 2001 until January 2006 he was using both Protophane and NovoRapid. He used Protophane twice daily and small amounts of NovoRapid as required. The Protophane is an example of longer-lasting insulin; it lasts about 12 hours. From 31 January 2006 until and including the hearing, Mr Butcher used Lantus, another long-acting insulin. He also uses NovoRapid as before, and as required, but much less frequently.

19 Mr Butcher has been diagnosed with non-proliferative diabetic retinopathy, a condition associated with diabetes. He gave evidence that he was a little short-sighted and could see quite clearly. His vision is sufficient to allow him to be the holder of a driver’s licence. He relied upon medical reports to show that while he had some indication of damage to his eyes, he was not suffering from the more serious side-effects of that condition (such as macular oedema or ocular haemorrhage). He did not have glaucoma or cataracts (see annexure MB1 to Ex C).

20 Over the years he has had a number of episodes which relate, or which may have related, to his diabetes. These were all the subject of significant cross-examination.

a)December 2002 – Mr Butcher was at a Christmas party at which he drank an excessive amount of alcohol. He said that he suffered from mild food poisoning at the same time. The combination of the two resulted in vomiting. He said that he was unable to eat to be able to maintain proper blood sugar levels and he was subsequently hospitalised. As a result of this episode, he said that he rarely, if ever, drinks alcohol.

b)17 January 2006 – he suffered a hypoglycaemic event and was sent home from work. He believed this was as a result of his self-imposed lowering of his blood sugar levels (as to which, see paragraph 38 below).

c)23 October 2007 – Mr Butcher was in the gun safe, cataloguing some weapons. He noted a chemical smell in the room which was not well ventilated and which suffered from fumes. He became unwell. An ambulance was called. Mr Butcher does not believe that this incident was related to his diabetes. This was referred to in evidence as the "gun room incident".

d)27 September 2008 – Mr Butcher was undertaking State Emergency Services training. He was engaging in heavy work (chainsawing a large gum tree), and managing other people. He was wearing heavy protective clothes. He became very thirsty. It was very hot. He vomited. At midday he drove the SES vehicle back to the headquarters, and began to hallucinate that he saw people, prams and animals on the roads. He tried to take evasive action as to these people and was relieved of the task of driving. He began to vomit again for about an hour. His blood sugar levels were very low and he received insulin by injection from the Ambulance service. He was ill for three days. This was referred to in evidence as the "SES incident".

e)16 December 2008 – Mr Butcher was taken to hospital for what was thought to be a hypoglycaemic event. Mr Butcher said that he was treated with insulin but that made no difference to his symptoms; he was then given saline by IV and he "returned to normal". He felt unwell for about two weeks (during which he was on holidays) and he is now of the view that this event was a viral illness, not a matter related to his diabetes.

21 Under cross-examination, Mr Butcher agreed that he had probably had three hypoglycaemic events in 2001 (each occurring while he was asleep). He was also cross-examined about an incident in May 2004 while he was at the Police Academy during which he had an illness. It was put to him that this was a hypoglycaemic episode, but Mr Butcher did not agree. There is very little hard evidence about any of these four events.

22 Prior to his employment in the Police Force, Mr Butcher was a qualified fitter and turner and worked shift work in the mining industry and the steelwork industry. In 2001 he worked as a jackaroo. During this period Mr Butcher said he maintained his blood sugar levels at a relatively high level (between 9 and 12) in order to reduce the risks of a hypoglycaemic attack, as he was working alone. He has also worked as a truck driver doing long haul driving.

23 Mr Butcher has been a member of the SES since around 2001. He is a Team Leader with the SES and comes highly recommended by other members of the SES.

24 In October 2000 Mr Butcher attended a Police Open Day in his local area. He had a discussion with a nurse and an Inspector from the NSW Police Recruitment Branch, the effect of which led him to make an application to the Recruitment Branch. He applied in late November 2000, disclosing on the application form that he was a type 1 insulin dependent diabetic.

25 During this period, and indeed continuing to the present day, Mr Butcher was a patient of Dr Simon Chalkley, a specialist consultant endocrinologist. Dr Chalkley gave a report in late October 2000 (on the basis of a referral from Mr Butcher’s GP, Dr Hofer) which supported Mr Butcher’s application to the Police Force. Dr Chalkley said (p 2 of annexure MB5 of Ex C):-

"He is not troubled by hypoglycaemia although he is able to recognise this and had good knowledge of how to treat this. I do not see that his diabetes management will be a problem with regard to the Police Force.

.....

I think that we should aim for a reasonable glycaemic control for Mark. I will suggest aiming for a HbA1c around 7-8%. Perfect glycaemic control may increase the risk of hypoglycaemia and this would be undesirable as regards his intended work .... Consequently I have made no changes to his therapy at present".

26 Dr Chalkley gave a report on 16 January 2001 to the Police Medical Officer, Medical Section, Dr Rodgers (see annexure MB6 of Ex C) noting that:

"As you can see from the pathology results his type 1 diabetes mellitus is sub-optimally controlled with twice daily Actrapid. His HbA1c on the 1/11/2000 was 10.3% (4-6)".

Dr Chalkley then noted the (then) recent diagnosis of diabetic retinopathy and noted that Mr Butcher

"appears to have no other obvious complications from his diabetes and his recent urinary micro-albumin level was within the normal range".

27 On 6 June 2001 Dr Chalkley again reported to the Police Recruitment Branch (annexure MB7 of Ex C). He said that

"there is no evidence of peripheral neuropathy or nephropathy ... his blood sugar levels have improved and now range from 4-11 mmol/L, without any significant hypoglycaemia in the last few months".

28 Mr Butcher’s application was deferred for twelve months on 22 August 2001, by reason of a decision of Dr Norris, acting Senior Police Medical Officer. That decision (annexure MB8 of Ex C) notes that Mr Butcher had diabetes which was "poorly looked after until now but no hypos". It further noted that the recommendation was that "he should be deferred till diabetes control ok but also no hypo attacks resulting from improved control". Dr Norris recommended follow-ups with ophthalmology and endocrinology specialists, and a twelve-month delay so as to allow Mr Butcher to show that his management of his diabetes had improved.

29 Mr Butcher then underwent twelve months of monitoring. Dr Chalkley wrote three further reports, dated 29 August 2001, 23 February 2002 and 29 June 2002 (annexures MB 9, 10 and 11 of Ex C respectively) which showed blood sugar ranges between 4 and 10 and HbA1c ranges from 8.8% to 9.8%, and no hypoglycaemic events.

30 As a result of the deferral and the consideration of the reports from Dr Chalkley, Dr Norris cleared Mr Butcher to proceed with his application for employment with the Police Force by letter of 6 November 2002. The conditions included in this letter were:-

a)"You supply 6 monthly reports on your diabetes from your endocrinologist to Police Medical Officer.

b)You submit yourself for yearly medical review by Police Medical Officer".

31 Mr Butcher agreed to these terms by signing the letter (annexure MB 12 to Ex C).

32 Mr Butcher was accepted into, and undertook, the training at the NSW Police College in Goulburn from May 2004. He undertook pre-employment medical tests satisfactorily, and his pre-employment medical examination concluded

"There were no medical problems detected or declared which would adversely impact on the applicant’s capacity to perform the duties of an operational police officer" (Annex MB 19 to Ex C).

He completed the College training course satisfactorily undertaking all physical requirements. There was no issue about whether he had continued to supply the Police Medical Officer with reports from Dr Chalkley – the evidence is liberally sprinkled with updating reports on Mr Butcher’s health.

33 Mr Butcher was sworn in as a Police Officer with the rank of Probationary Constable on 16 December 2004. He remains, as noted above, at that rank as at the time of hearing. He was assigned to Campbelltown Police Station as part of the Campbelltown Local Area Command. He worked shift work with 12 hour shifts, and undertook jobs involving driving. He was involved in foot pursuits from time to time. He was involved in the Macquarie Fields riots during this time and received a Commissioner’s Unit Citation from the Commissioner of Police (see Annexure MB40 to Ex C). He was awarded Probationary Constable of the Year for the Macarthur area for 2005. During 2004 and 2005 he submitted reports from Dr Chalkley. The report of 27 September 2005 which was copied to the Police Medical Officer (annexure MF22 to Ex C) noted that:

"Mark’s type 1 diabetes control appears to be fairly good according to his recorded blood sugar levels which range from 5-212 mmol/L. He reports no hypoglycaemia. His HbA1c was 11.8% which, although elevated, is not greatly different to his usual levels ....

I have made no changes to his therapy ...".

34 In late 2005 Mr Butcher underwent a number of tests which were preparatory to his confirmation of employment – that is, his confirmation as Constable and the end of his probationary period. He was examined by Dr Ying, a Police Medical Officer, on 19 December 2005. What happened at this consultation was the subject of dispute, and so what follows in the next paragraph is Mr Butcher’s version.

35 Mr Butcher said that Dr Ying said to him, in effect, "if you want to be a police officer, you need to keep your blood sugar levels between 3 and 5". He queried this based on his history of higher levels, but accepted that advice and believed that if he was to be confirmed, he would need to keep his blood sugar level much lower than he previously had. He wrote a comment in his blood sugar levels diary "PMO App told 2 keep sugars low". He does not remember when he did this. He did not discuss the recommendation or his self-imposed changes to his management regime with Dr Chalkley or Dr Hofer. There is no reason to doubt Mr Butcher’s recollection of this conversation, as there was no evidence called from Dr Ying.

36 On 19 December 2005 Dr Ying recommended that Mr Butcher’s appointment be deferred for a year to enable him to demonstrate an ability to keep his blood sugar levels below 10%. Further reporting conditions were recommended (see MB26 to Ex C). Mr Butcher received a copy of that letter. That letter, while it refers to the "below 10%" requirement, is not inconsistent with the oral statements made to Mr Butcher; Dr Ying’s written recommendation fits with Dr Kirby’s view expressed in his affidavit and in the witness box that Mr Butcher’s levels were too high and that they should be lower.

37 On 17 January 2006 he suffered the hypoglycaemic event referred to in paragraph 0 above. He was assessed on 19 January 2006 by the Police Medical Officer for "treatment to enable to return to full operation duties". He returned to work, after the hypoglycaemic event, on 19 January 2006. On his return to work, he was placed on restricted duties. He did front desk duties for six months, and in August was assigned to a strikeforce investigation. He then undertook some active policing work but was unarmed due to his restricted status. From June 2007 he was involved in archiving old case files within the Campbelltown LAC, and then he was sent to catalogue exhibits. He found this rather demeaning. He also maintained the storage of seized firearms and other weapons. From August 2008 he was put on a "paperwork" job in the Warrant and Summons section of the Campbelltown LAC. He remained doing that job as at the date of swearing Ex C and at the hearing.

38 He saw Dr Chalkley on 31 January 2005, after the hypoglycaemic event, and Dr Chalkley changed his medication to Lantus, a then new type of insulin. In a report which was copied to the Police Medical Officer, Dr Ying, and to Dr Hofer, the GP, Dr Chalkley noted that he had been switched because "the Lantus insulin is thought to be more reliable in its action, producing less variation in blood sugar levels with an even lower risk of hypoglycaemia". (Annexure MB 28 to Ex C). Mr Butcher effected the change and his evidence was that Lantus gave him better control of his diabetes.

39 In February 2006 he had a further Police Medical Officer appointment, this time with Dr Thomas. The recommendation by Dr Thomas was that he:-

"continue on restricted duties until he provides a clearance certificate from his treating endocrinologist at this time, specifically noting whether P/Cst Butcher has had any further hypoglycaemic episodes, his long term glucose control, his knowledge of identifying hypoglycaemic episodes and whether there are likely to be any long-term restrictions in his ability to perform his inherent duties". (Annexure MB30 to Ex C).

40 Mr Butcher attended Dr Chalkley on 30 May 2006. Dr Chalkley reported to Dr Ying on that day that Mr Butcher’s HbA1c level "improved to be 8.7%" and "as far as I am concerned he is fit for resumption of normal police duties including conditions that might [word omitted - ?include] irregular meal breaks, exercise and shift work". (Annex MB 31 to Ex C). Mr Butcher remained on restricted duties while his file was being reviewed.

41 On 31 July 2006 Dr Kirby, the Senior Police Medical Officer, wrote to Dr Chalkley (annexure MB32 to Ex C). In that letter Dr Kirby said:-

"In summary, this officer is a diabetic case that:

Has an unusually low level of hypoglycaemic episodes

Runs his BSL well above the range that is recommended to avoid end-organ damage

Shows end-organ damage with respect to his eyes; none observable in other organs accessible for assessment

On the one available documented hypoglycaemic episode, has shown significant behavioural changes and memory loss of events

Has retinopathy which, although currently stable and acceptable for policing, has a significant chance of deteriorating

In reviewing the file, a considerable emphasis has been placed on this officer’s ability to perform physical work; to miss meal breaks; to perform shift work; to drive vehicles. On a day to day basis, for most of his working time, his routine will be regular enough that such issues will be amendable to regular dosing with Insulin and consumption of appropriate available meals. My reason for restricting him relates to the regular need for police officers to act precipitously because of emergencies, rendering the probability high in the long term that he will be subjected to an insulin/food intake imbalance and will be at risk of hypoglycaemia. Such an event may occur in circumstance where he is unable, maybe sufficiently distracted, that he forgets, or does not observe the warning signs because of his heightened physiological state to take emergency sugar.

In summary, this officer is Insulin-dependent which would generally present an unacceptable risk for him to be in front-line policing. At present, we do not know the natural history of his condition in terms of hypoglycaemia because he uses higher than medically-acceptable BSL to avoid these.

It is for these reasons I have advised the Local Area Command that he should remain restricted." (See Annexure MB32 to Exhibit ‘C’)

42 Dr Chalkley wrote to Dr Kirby on 29 August 2006, noting that Mr Butcher’s recent HbA1c level was 8.5%. He noted that Mr Butcher has "now has improved glycaemic control without hypoglycaemia despite continuing an active lifestyle and police work". Dr Chalkley concluded "his glycaemic control is suitable to resume front-line police duties" (see Annexure MB34 to Exhibit C).

43 Mr Butcher remained on restricted duties while Dr Kirby and Dr Chalkley corresponded over a number of months about matters such as the statistical likelihood of adverse events to be suffered by police officers with insulin-dependent diabetes. Within that correspondence, Dr Kirby, in a letter of 7 November 2006, expressed concern that if Mr Butcher

"were permitted to proceed with a police career and should there be an unfortunate disaster attributable to a disturbance of consciousness [of Mr Butcher] while performing front-line policing duties, could we defend ourselves by arguing that the event was unlikely, unforeseen and remote when facing, say, a coroner’s court. My current understanding of injectible Insulin treatment in a Type 1 diabetic is that such an argument is not plausible" (see Annexure MB36 to Exhibit C).

44 Dr Chalkley replied on 13 February 2007 that Mr Butcher was

"well educated in the aspects of (Insulin management) particularly regarding alcohol causing severe hypoglycaemia several years in the past."

Dr Chalkley continued

"I also think you might be overestimating the likelihood or implications of severe hypoglycaemic in this select group [of diabetics in the police force]" (See Annexure MB37 to Ex C).

45 In late 2007, or thereabouts, a review panel determined that three options be considered by the Human Resources department; those options being dismissal, restriction to an administrative role or restriction to an intelligence role. The last two options would be permanent.

46 During his period of restricted duties, Mr Butcher experienced a number of adverse health incidents as follows:-

a)On 22 October 2007 Mr Butcher suffered the gun room incident which is set out in more detail at paragraph 20c.

b)On 27 September 2008 Mr Butcher experienced the SES incident which is set out in Paragraph 20d. This was the subject of a great deal of cross-examination.

c)On 16 December 2008 Mr Butcher experienced the illness which is set out at Paragraph 20e.

47 In January 2008 Mr Butcher was the subject of a "risk management tool" assessment which was completed by Dr Kirby, Chief Superintendent Corboy, A. Clapham and Superintendent Stuart Smith. More will be said about that matter below.

48 The evidence given by the applicant demonstrated that Mr Butcher is of the firm belief that he is able to fulfil the core business of a police officer. In support of that belief, he pointed to a number of matters which we will not set out in detail but which appear from paragraph 140 of Ex C to paragraph 170.

49 Under cross-examination it was put to Mr Butcher that he lacked insight as to his condition and to the problems associated with it. In support of this contention, counsel for the respondent suggested that Mr Butcher should have been aware of the likelihood of a hypoglycaemic event after vomiting, in the light of his experiences in 2001 with alcohol-induced vomiting. Mr Butcher conceded that he showed "poor judgment" in getting into a vehicle after vomiting and being at risk of low blood sugars.

50 Mr Butcher was also cross-examined about his recording in his blood sugar levels diary on the day of the "gun room incident", in which he wrote the words "hypo mild" and then crossed it out, writing "not a hypo". He explained this by reference to what he said was the treatment he received which indicated that he was not suffering from a hypoglycaemic event. It was suggested to him in cross-examination that his prior evidence – that he had never considered the gun room incident to be a hypoglycaemic event – was wrong and that he had been misleading in giving that evidence. Mr Butcher denied this. He said that the report he made in relation to the incident was true, and that the entry in the journal was not a considered entry.

51 Dr Chalkley gave evidence in support of Mr Butcher’s application. He gave an opinion dated 1 February 2009 (Ex D) and other reports of his were tendered into evidence and were annexed to Ex C. He was cross-examined.

52 Dr Chalkley said in his evidence that it was his view that severe hypoglycaemia was potentially avoidable for Mr Butcher while he was at work. Dr Chalkley said that if the applicant suffered an illness which resulted in vomiting, he should be temporarily released from policing duties. He should be allowed to carry oral carbohydrates on his person and a glucometer so that he could check his blood glucose levels on a regular basis whilst at work. Dr Chalkley believed that if those provisos were followed, he had a very low risk of a severe hypoglycaemic episode whilst performing duties as a police officer. He repeated his view that Mr Butcher was fit for policing duties.

53 In the body of his report Ex D, he noted Mr Butcher’s long history of diabetes and his historical low propensity to severe hypoglycaemia; despite his historically rather high HbA1c he only had mild diabetic retinopathy and no other evidence of serious complications such as nephropathy or neuropathy.

54 Dr Chalkley discussed in his report the importance of maintaining an appropriate blood glucose control. He noted that "decision-making in obtaining the best (most appropriate) blood glucose control for an individual patient with diabetes mellitus requires an educated balancing of experiencing hypoglycaemia with tighter glycaemic control versus the risk of developing diabetic complications with suboptimal glycaemic control in the context of the patient’s desired lifestyle".

55 Dr Chalkley noted that since February 2006,

"his HbA1c levels since the use of Lantus have generally been between 8-9%. This improved control is likely to reduce his risk of progression or development of diabetic complications".

56 Dr Chalkley then went on to discuss his correspondence with Dr Kirby and noted that, in his view, Mr Butcher could perform duties required of a police officer in an operational role without needing special assistance by the police force, apart from those provisos set out above. The doctor did acknowledge that Mr Butcher "will never be completely free of the risk of having severe hypoglycaemic episodes".

57 Dr Chalkley attached his curriculum vitae which set out his experience as a consultant endocrinologist and his publications. There was no attack on Dr Chalkley’s expertise in this area. He also attached a number of articles which dealt with longer-acting Insulin and the effect on diabetic patients. Further, he attached and discussed the "functional requirements for the diploma of policing practice and operational policing duties" (see page 88 of his report, Ex D) and was, as we have said, of the opinion that Mr Butcher was able to fulfil those inherent requirements.

58 Dr Chalkley gave oral evidence in addition to his written reports. In examination in chief, he characterised the process of finding a balance between management of hypoglycaemic event risk and the risk of end organ damage as a process of finding the most acceptable risk to the particular patient. He said that the best outcome for a diabetic patient is finding "blood sugar levels that are reasonably well controlled around the ideal range for blood sugar levels". He said that Mr Butcher’s end organ damage was showing no signs of progressing, except for the retinopathy, which was progressing only slowly.

59 In cross-examination, Dr Chalkley was asked questions about the symptoms of severe hypoglycaemia. He said that if blood sugar level were low enough, the person suffering the hypoglycaemia needed assistance from somebody else, given that "they’re a bit irritable and don’t have enough executive ability to treat it themselves". He was cross-examined about the SES incident, and was of the view that the hallucinations came from heat stress, given that they were not a usual symptom of Mr Butcher’s hypoglycaemia. In particular, he was cross-examined about his ability to give an opinion about whether he was qualified to give an opinion about whether Mr Butcher would be able to perform police duties and whether, specifically, he was able to give an opinion about whether Mr Butcher would, in his role as a police officer, would put anyone at risk. The following questions were asked:-

"MR MOSES: Q The issue about the risk of safety to others, what did you understand that phrase to mean?

DR CHALKLEY A Whether, in his role as police officer, he would put anyone at risk.

Q And the tasks in question, what did you understand that to be referring to?

A Police tasks.

Q Being what?

A Everyday police tasks.

Q Being what?

A What police do every day.

Q. Well, what do you understand police do every day?

Q They probably do varying things on different days, sometimes behind a desk, sometimes it’s out in the community, involved in reviewing what’s been reported to them as an incident, perhaps sometimes traffic duties, perhaps sometimes on patrol.

Q Do you know what each of those tasks involve?

A I can imagine what they involve

Q Well, some of us can imagine, but do you actually know?

A I don’t actually do those tasks".

60 Dr Chalkley was then pointed to specific police tasks and was asked as to his understanding of the "inherent duties of a frontline police officer". Those duties were put to him and he said that in his opinion, a type 1 diabetic was not precluded from being a frontline policing officer if the condition was being managed well, they had an awareness of when they were having or were about to have a hypoglycaemic attack, and by keeping their HbA1c levels at a range which was not causing potential long-term ill health. Dr Chalkley also gave evidence that the range he preferred for Mr Butcher was having an HbA1c level of between 7 and 8, and "currently he has that". He referred to this range as his "guideline" for Mr Butcher’s correct balance between "the risk of complications and hypoglycaemia". He said that new developments in insulin treatment could result in changes to this view.

61 Dr Chalkley’s view was that Mr Butcher had, over the last three years, been managing his condition apart from periods of illness interfering with his blood sugar, or when he was advised to take too much insulin (as was the case with Mr Butcher’s recollection of what Dr Ying told him).

62 It was put to Dr Chalkley that he was tailoring his evidence "in order to assist Mr Butcher to be placed on active duties". Dr Chalkley replied "I tailor my medical treatment to what suits him best in terms of his health, long and short term ... and his working life".

63 The other witness to give evidence in the applicant’s case was Superintendent Michael Goodwin, the Local Area Commander for Campbelltown Local Area Command. Superintendent Goodwin succeeded Superintendent Smith who had been the former commander (and who was a participant in the Risk Management tool referred to above and discussed further below). Superintendent Goodwin is, in effect, Mr Butcher’s commanding officer, and he gave evidence as to the kind of work that Mr Butcher undertook and as to his management of Mr Butcher with reference to his occupational health and safety role. He also gave evidence as to Butcher’s honesty, accuracy and ability to perform the duties that he does perform. It is fair to say that Superintendent Goodwin has a very high opinion of Mr Butcher as a police officer and he noted that his performance of the duties which he asked to perform in his restricted role "is of the very highest standard."

64 Superintendent Goodwin referred to Mr Butcher’s attention to detail and his enthusiasm as "exceptional."

65 Superintendent Goodwin supported the application by Mr Butcher to return to full operational duties as a general duties police officer but gave the rider that

"as I would with anyone....... I would have to be satisfied that his health was being properly managed and that his return to work was properly sanctioned by his treating doctor".

66 Superintendent Goodwin was cross-examined but it is fair to say that he did not resile from the opinion that was given by him in examination in chief. He was not able to comment on the effect of Mr Butcher’s diabetes on his daily employment, nor was it his decision whether to return Mr Butcher to unrestricted duties.

Respondent’s Evidence

67 The only witness who gave evidence for the respondent was the Senior Police Medical Officer employed by the respondent, Dr William Kirby. Dr Kirby has practised as a doctor since 1982 and swore an affidavit on 22 July 2009. He commenced employment as a Police Medical Officer in 2004 and as the Senior Police Medical Officer during 2005.

68 In his affidavit (Ex 2) he set out his involvement in Mr Butcher’s case. Much of it is, of course, given on information and belief as Dr Kirby did not gain any personal knowledge of the case until after commencing work with the respondent. Much of his evidence is a review of the Police Medical Officer file. Dr Kirby took the view, as noted by Dr Norris in 2001, Mr Butcher had at that time "poor control that leads to no hypoglycaemic attacks".

69 Dr Kirby dealt with the risk management assessment which was carried out on about 16 January 2007. That risk management assessment appears at Page 121 of Ex 2 and behind Tab AA. The risk management tool is a flow chart with instructions which sets out the requirement to identify a hazard to assess the risk, to describe the consequence and seek to "eliminate any reasonable foreseeable risks". As noted above, Dr Kirby and the then Local Area Commander were two of the persons completing that assessment in relation to Mr Butcher. The estimated level of risk is determined by reference to a table where one assesses the risk from "almost certain" through to "rare" and the consequence from "catastrophic" through to "insignificant". Where there is a determination of catastrophic risk with an almost certain occurrence, the level of risk is noted as extreme and where there is an insignificant level of risk with a rare occurrence then the risk is low and can be managed by routine procedures.

70 At Pages 1, 2, 3 and onwards in Tab AA to Exhibit 2, the process by which the authors of the risk management assessment reached their conclusions is set out. There are five "contexts" in which it is said Mr Butcher may be prone to a risk, generally of losing control through severe hypoglycaemia.

a)The first "context" is "situations where offenders are armed with firearms" and where the risk identification was "persons being injured as a result of police being unable to perform their required duties in attempting to control the situation". The risk was assessed as "unlikely", meaning it could occur at some time, but the qualitative measure of consequence was assessed as major or "catastrophic". When using the estimated level of risk table, this resulted in an "extreme" or "high" rating.

b)The second "context" is "road-related activities" and again, using those steps, the level of risk was estimated at "extreme."

c)The third context was "a police officer responding to urgent situations"; again the rating was of extreme risk based on a likely or possible outcome where a police officer could sustain fatal or serious injuries.

d)The fourth context was custody issues where police detained an offender and took control of their welfare; again these risks were assessed as high or extreme.

e)The fifth context was the requirement to respond and be legally accountable to justify actions regarding the use of police appointments including the use of a police firearm to shoot an offender. The outcome was noted as being catastrophic and the level of risk as extreme.

71 The "review of control strategies", which appears at Page 132 of Exhibit 2, recommended that Mr Butcher have access to meals and access to his glucometer, that he be limited to bronze driving certification only, that he have regular medical assessment and clearance. The review then goes on to consider whether he should be on restricted or full duties. It recommended that Mr Butcher not have access to a firearm and that he be restricted or accompanied during front-line policing duties with another experienced officer. There are a number of other options; one was to determine him as medically unfit for duty, or to allow him to perform shorter or specific rostered shifts. It does not appear that Mr Butcher was consulted by the Risk Management Committee.

72 Dr Kirby gave evidence that he understood the hypoglycaemic symptoms to include:

a)Mood disturbance

b)Disturbance of judgement

c)Aggressive state mentally

d)Disordered thinking

e)Organic brain syndrome-like symptoms

f)Death

73 He based this on his experience as a GP, his academic work in seeking certification as a GP and his experience as a specialist occupational physician. He also referred to literature and questions and answers posed to various unnamed people.

74 Dr Kirby said that the understanding he had of Mr Butcher’s medical file demonstrated that his medical history showed instability and side effects when his insulin level was increased. In paragraph 76 of Exhibit 2 he said:

"I am therefore of the opinion that Mr Butcher needs to be able to demonstrate long term hypoglycaemic control with HbA1c at 8.0 or close to this. A period of one year for this to occur is reasonable based on my judgement and the common use of one year for medical conditions, as it goes through one complete seasonal cycle. Self-reporting of hypoglycaemia is required either to me under official police interview or alternatively by statutory statement (usually used for unsworn individuals). This is concurrent with three-monthly HbA1c levels for this 12 month period."

75 On giving evidence in chief orally, Dr Kirby was taken to the document at pages 89-91 of Dr Chalkley’s affidavit, which were the "inherent requirements" of policing. Dr Kirby indicated that there were two sets, the old standard and the new standard, but there were no real differences between the two (Transcript 5 August 2009 p 16). He was not the author of the "inherent requirements" but gave evidence that they came into being in around 2005. Eventually documents were produced showing that the inherent requirements documents were brought into being between 30 April 2004 and 17 May 2004 (see Ex M).

76 Dr Kirby was cross-examined. He agreed that he was not an endocrinologist, and had never undertaken specialist endocrinology training (T 5 August 2009 p 23). He noted that when he was a GP he regularly referred patients to endocrinologists, given that his role as a GP was to provide primary care. He had no treatment role as Police Medical Officer – that is, he did not see police officers as patients during his work as Police Medical Officer. He maintained a part-time role as a GP in a medical centre.

77 Counsel for the applicant also cross-examined Dr Kirby on whether he considered himself the decision-maker as to whether Mr Butcher could be confirmed as a constable or whether he was an "unacceptable operational risk" (see T pp 27-8). He was cross-examined at length about the Risk Assessment Tool which he had a role in completing. He was also cross-examined on the "Guidelines" or "Framework" relating to insulin dependent officers (which is annexure AD to Dr Kirby’s affidavit, and appears at pp 136-138 of that affidavit). That document, it appeared from cross-examination, was brought into existence quite recently and after the complaint by Mr Butcher to the ADB (see T 5 August 2009 p 49). However, Dr Kirby denied knowing of Mr Butcher’s complaint when he drafted it.

78 The document which was annexure AE to Dr Kirby’s affidavit (pp 139-141) was headed "Reasoning for the diabetes framework". Dr Kirby admitted that not only did he have Mr Butcher’s claim in mind when composing this document but that there were two specific references to Mr Butcher in it – one on p 140-1 which read:-

"It is the SPMO’s experience that diabetic patients of the mental calibre sufficient to qualify as successful applicants/officers understand there (sic) diabetes and its control and make (or by force of circumstance have it dictated to them) the need to run higher than acceptable BSLs due to excessive occurrence of hypoglycaemia with better control regimes and therefore find its (sic) difficult, or not possible to run lower BSLs and not have hypoglycaemic episodes."

and

"Also the SPMO’s experience is that diabetic individuals do deliberately operate at a higher than medically advised BSL if they are faced with being denied opportunity because of hypoglycaemic risk". (at p 141).

79 Dr Kirby noted that Mr Butcher was one of the individuals referred to in the first quote (one of the other individuals was, rather surprisingly, Dr Kirby’s father who was aged 90 and not a police officer) and the second quote also included Mr Butcher in its terms.

80 The "Framework" document required that the HbA1c level be maintained 6.1-8.09 for twelve months and noted that the standard would not be met if there were a hypoglycaemic event during the past twelve months "whilst in well-controlled state".

81 During cross-examination, Dr Kirby indicated that he was often called upon to deal with particular conditions which may impact adversely on the ability to act as a police officer. He said one of those conditions was colour-blindness, another AIDS/HIV, and the third was diabetes. He said that the Police Force tried:-

"to find a suitable resolution for the fair balance of bringing people into the organisation and, therefore, also looking after people who are within the organisation in respect to those illnesses has always been a problem and has been an ongoing issue".

82 Dr Kirby was cross-examined about his view, put both in his affidavit itself and in the Framework, that a period of a year was required with an HbA1c level of 12 months "or close to this" for a person to be considered a potential police officer. When asked about this, Dr Kirby said that "or close to this" meant below 8.0 (see T 5 August 2009 p 81). It was pointed out to Dr Kirby on 5 August 2009 that Mr Butcher’s HbA1c levels had been:-

a)8.7 on 11 August 2008;

b)7.9 on 7 November 2008

c)7.8 on 19 February 2009 (see Ex G).

Dr Kirby said that his requirement would be fulfilled by Mr Butcher showing an HbA1c reading of less than 8.0 by 7 November 2009 (see T 5 August 2009 p 81). He said he might accept a reading of 8.1 but that was as high as he would go. In further examination in chief, allowed by leave, by the respondent’s counsel Dr Kirby said that Mr Butcher would also need to fulfil the "no hypoglycaemic episode" requirement (see T 5 August 2009 p 84).

83 The proceedings were adjourned to 4 September 2009 and on that occasion a further HbA1c result was tendered, which showed a level of 7.8 as at 17 August 2009 (Ex N). Dr Kirby was cross-examined as to whether that result fulfilled the "under 8.0 for one year" criterion, given that the HbA1c result of 7 November 2008 covered the previous three months. Dr Kirby said that he did not agree, given that "the first HbA1c is the bench mark and starts [the] clock ticking for 12 months". It was put to him that his refusal to accept the 17 August 2009 result as demonstrating compliance with the "under 8.0 for 1 year" criterion was showing his determination to decide against Mr Butcher, and that he had "made up in the witness box" the failure to take into account the reading of 11 August 2008 (see T 5 September 2009 p 10-11).

84 On 20 November 2009, when the matter resumed part-heard, a further pathology report in relation to Mr Butcher’s HbA1c level was tendered which showed that the reading up to 12 November 2009 was 7.5. Dr Kirby had finished his evidence at this point and so was not asked about this reading.

85 In re-examination, Dr Kirby was asked as to any other requirements that he would need Mr Butcher to fulfil, along with the "under 8.0 for one year" criterion and the "no hypoglycaemic episodes" criterion. He answered that Mr Butcher would need to show that there was no evidence of nephropathy, autonephrectomy and ophthalmic damage (see T, 4 September 2009, p 19).

86 During cross-examination, it was often put to Dr Kirby that he was being argumentative, unresponsive, or failing to answer the question. This was undoubtedly the case from time to time but for most of the cross-examination Dr Kirby made attempts to answer the questions asked of him and to assist the Tribunal. Certainly the allegation that the doctor had "made up" the requirement of not using the 11 August 2008 HbA1c reading had no basis, given Dr Kirby’s evidence set out in paragraph 83 above.

Findings on the facts
87 The Tribunal has considered the evidence and the manner in which the various witnesses gave evidence. The Tribunal found Mr Butcher to be a witness of truth; he attempted to give honest evidence although occasionally he was confronted by documents which did not reflect his recollection. In particular, this was illustrated by the applicant’s writing of the words "HYPO MILD" in his Blood Sugar Level diary in relation to an incident which, he had claimed, he had never thought to be a hypoglycaemic attack. The respondent sought to paint this evidence as illustrative of a tendency to deny that medical issues could be related to his diabetes in all but the most obvious of circumstances. The Tribunal, however, finds that the most likely explanation is that given by the applicant; he thought he was suffering from hypoglycaemia, noted that as the case, and later, on the basis of his treatment and what he was told, changed his view. The Tribunal did not see the words "HYPO MILD" as being indicative either of the applicant’s attempting to change his evidence, nor of a tendency to try to avoid health issues being characterised as diabetic-related.

88 In relation to the events set out in paragraph 21 above, the Tribunal has considered the evidence in relation to them and has come to the following conclusions:-

a)17 January 2006 - this was clearly a hypoglycaemic event and one which is directly linked to the advice given to him by Dr Ying (whether that advice be found to be to keep blood sugars low, at a specific level, or even at under 10%). While Mr Butcher is not free of blame – he admitted that he should not have changed his insulin levels without discussing it with Dr Hofer and/or Dr Chalkley – he had been told that "to be a police officer" he had to have lower blood sugar levels and he tried to attain that. The Tribunal has reached the conclusion that Mr Butcher is now well aware of the risks of self-treatment and of changing his medication and it is our view that he is most unlikely to try that again.

b)23 October 2007 – the "gun safe incident". The evidence regarding this is finely balanced, but given the fact that Mr Butcher’s condition was not relieved by glucose treatment the Tribunal is of the view that this incident is more likely to have been caused by inhaling either carbon monoxide or chemicals from the residue on the guns.

c)27 September 2008 – the SES incident. This appears to have been a hypoglycaemic event exacerbated by heat stroke and brought on by vomiting. The circumstances in which it occurred were unusual and Mr Butcher is of the view – which appears to be the most likely one – that he was suffering from both heat stroke and from low blood sugar. Dr Chalkley appears to support the role of heat stroke in this incident. Again, Mr Butcher appears very aware of the dangers to his blood sugar levels of vomiting and we were satisfied that his future glycaemic control will take this factor into account.

d)16 December 2008 – The medical evidence is inconclusive about whether this was a hypoglycaemic event. Given that he was ill for some two weeks – not usually indicative of hypoglycaemia – it appears more likely that it was not.

89 The other witnesses for Mr Butcher likewise impressed the Tribunal. The evidence received from Dr Chalkley and from Superintendant Goodwin was thoughtful and clear.

90 Dr Kirby appeared a less impressive witness; as noted above, his affidavit veered into commentary rather than remaining purely evidentiary (see the many places where he "noted" selected statements from documents which were consistent with his views) and certainly seemed to hold the view that the applicant would never be suitable as a police officer. He said on a number of occasions in the written evidence that the fact of Mr Butcher (whether he named him or not) being insulin dependent made it unlikely that he would be suitable for active police duties. However, in oral evidence, he put forward the criteria for suitability which can be summarised as "under 8.0 for one year with no hypos" which showed that he was open to complying insulin-dependent diabetics being employed. The applicant sought to impugn Dr Kirby’s ability to remain out of the arena (pointing to an incident where the doctor laughed during cross-examination). The allegations set out above as to Dr Kirby having "made up" criteria, was not made out on the transcript. However, Dr Kirby often veered into what can only be called frolics where he pointed out particular instances of evidence which appeared only to be for the purpose of some degree of advocacy – see, for example, the irrelevant observation that one of his other patients with diabetes was unimpressed with Lantus, the medication which Mr Butcher was taking (see T 5 August 2008 at 24-5), and the example of the inclusion of his father, noted above.

91 Nonetheless, Dr Kirby’s observations and experience as a Senior Police Medical Officer were taken to have significant weight, given that he was involved at high level in formulating the Framework by which the Police Force deals with and accepts officers with diabetes.

92 The fact that the applicant suffered from a disability, being diabetes, was not in dispute. Neither was the fact of his employment, nor the restriction of his terms of employment, disputed.

The onus of proof
93 The respondent submitted that any findings reached by the Tribunal should be on the Briginshaw standard (Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336), in that the Tribunal should feel an "actual persuasion", the required "reasonable satisfaction" of the civil standard being taken in the context of the gravity of the allegations and the "serious consequences" of any adverse findings.

94 There are, of course, only two standards of proof recognised by Australian law – the civil standard ("on the balance of probabilities") and the criminal standard ("beyond reasonable doubt"). While the Full Court of the Federal Court stated, en passant, in Sharma v. Legal Aid Queensland [2002] FCAFC 196 at [40] that the Briginshaw standard should be applied given that "racial discrimination is a serious matter, not lightly to be inferred", the indiscriminate recourse to Briginshaw merely because a matter is an anti-discrimination matter has received some criticism (see De Plevitz, The Briginshaw ‘Standard of Proof’ in Anti-Discrimination Law: "Pointing with a Wavering Finger" [2003] MelbULawRw 13; (2003) 27 Melbourne University Law Review 308 at 309-333; Victoria v. Macedonian Teacher’s Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at 50).

95 The proper trigger for the requirement of a satisfaction in the reliability of evidence, as set out in Briginshaw, is the gravity of the consequence of that finding. Where justified, the Tribunal will apply the proper requirements to the allegations made by the applicant and will bear in mind the importance of the decision on the applicant and the respondent, and of course the general public who have a right to a confidence in the employment issues of the policing system.

Victimisation
96 The appellant, in his outline of submissions, at paras [54]-[57], raised the question of whether the applicant had been victimised. The evidence, outlined above, that Dr Kirby had "rephrased" his requirement as to the HbA1c levels covering one year (or "4 seasons") and being "close to this" meaning "below". The applicant submitted that "there was inordinate delay and inaction that corroborates that there was victimisation" – see par [56] of the applicant’s submissions filed 14 October 2009. Additionally, the applicant filed "Applicant’s Victimisation Outline of Submissions" on 20 November 2009.

97 The respondent takes issue with the allegation of victimisation, noting that this was not a matter which was before the Anti-Discrimination Board and which was raised for the first time in the submissions filed on behalf of the applicant.

98 The applicant points out, correctly, that the Tribunal has the power to amend the complaint (see Zhang v. Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24). Section 103 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") provides that:

"(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit."

99 That amendment may include matters which were not investigated by the President of the ADB: see Chand v. Rail Corporation of New South Wales [2007] NSWADTAP 54 at [37] – [38].

100 In additional submissions filed on behalf of the respondent on 20 November 2009, the applicant indicated that it relied on the following matters for its allegation of victimisation:-

a)the question of the applicant’s HbA1c levels of "8.0 or close to this" and the change in focus during the evidence of Dr Kirby;

b)Annexures AD and AE of Dr Kirby’s evidence having been drafted "in relation to Mr Butcher’s case" (those being documents relating to the "diabetes Framework" drafted by Dr Kirby).

101 The applicant relies on s 50(1)(a),(c) and/or (d) of the Act, which provide as follows:-

50 Victimisation

(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 proceedings 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 person,

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 intends to do, any of them.

102 The detriments alleged by the applicant were:-

a)the continuing decision not to place him back on general operational duties in reference to his previous HbA1c readings and despite his most recent HbA1c readings (this conduct took place from 19 December 2005 onwards); and

b)the change of the 2005 requirement of 10% to not more than 8% (from July 2009). (See additional submissions paragraph 12).

103 The applicant points out, correctly, that in order to make out a claim in victimisation, Mr Butcher needs to show that he was both subjected to a detriment and that the detriment was suffered by reason of having made a complaint to the ADB – see Zhang (supra) at [8], Correy v. St Joseph’s Hospital Ltd [2009] NSWADT 40 at [5]- [7]).

104 One of the difficulties with the late application – during submissions, in fact – to amend the complaint is that the parties were not able to cross-examine the witnesses with the victimisation complaint in mind. Certainly it was not an issue which Dr Kirby was considering when he was cross-examined as to his motivations in preparing annexures AD and AE to Ex 2, nor when answering questions about the HbA1c requirements imposed by him on Mr Butcher. It was not put to him squarely that he did these things because of the complaint to the ADB – the most that arises out of the evidence is that Dr Kirby was aware of Mr Butcher’s complaint and had a view as to the proper outcome of that complaint.

105 Additionally, as outlined above in paragraph 83, the allegation that Dr Kirby "made up" the requirement of one year’s HbA1c readings dating from the first report of a sub-8.0 reading was not substantiated.

106 When the matter came before the Tribunal part-heard on 20 November 2010, the applicant sought, by his counsel, to have the matter stood over to after a decision on the primary issues as detailed in the Points of Claim. The Tribunal considered the matter and informed the parties that it had determined to dismiss the application to amend, but that reasons would be given with these reasons for decision.

107 In the circumstances, the applicant has not made out a reasonable case that the applicant was victimised in the way particularised by the Further Submissions of 20 November 2009. Accordingly, there would be no utility in allowing the amendment as the claim would be bound to fail.

Jurisdictional Issue
108 The Points of Defence raised the issue that the ability of the Commissioner of Police to take the actions he did with respect to Mr Butcher’s appointment and conditions of employment were within his discretion by reason of Division 4 of Part 6 of the Police Act, Part 2 of the Police Regulation 2000 and subsequently part 2 of the Police Regulation 2008. Division 4 of Part 6 of the Police Act consists of s 80, which provides:-

"80 Appointment and promotion of constables

(1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable.

(2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations.

(3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.

(4) The promotion of police officers within the rank of constable is subject to the regulations."

109 The respondent seeks to make the point that the decisions which were taken were those which were "entitled to be taken pursuant to discretionary administrative powers under s 80 of the Police Act and the various regulations". The respondent makes the point – quite rightly – that the proceedings before this Tribunal are not proceedings for administrative review of the respondent’s decision. Rather, the applicant makes allegations of breaches of s 49D(2) of the Act.

110 Section 49D reads, relevantly:-

49D Discrimination against applicants and employees

.....

(2) It is unlawful for an employer to discriminate against an employee on the ground 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) by subjecting the employee to any other detriment.

.....

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

....

111 Strictly speaking, the ground raised by the respondent is not a "jurisdictional issue". It is more an issue as to the interrelationship of the various legislative provisions and the way in which the Police Commissioner needs to exercise his discretion as to confirmation, or promotion, of a probationary constable as a constable. That interrelationship is not able to be determined on a preliminary or strike-out basis and accordingly, the question of the discretions of the Police Commissioner will be considered, not as a means to strike out the applicant’s claim, but as provisions which regulate the wider employment landscape.

The arguments of the parties
112 The parties both exchanged submissions in writing, and made oral submissions. The submissions which we have taken into account are:-

a)applicant’s Outline of Submissions 14 October 2009;

b)Outline of respondent’s Submissions 6 November 2009;

c)applicant’s Victimisation Outline of Submissions 20 November 2009 (dealt with above and which will not be dealt with further);

d)applicant’s reply outline of submissions 19 November 2009

e)respondent’s Supplementary Submissions 5 February 2010; and

f)applicant’s Further Reply Submissions 19 February 2010.

113 Oral argument took place on 20 November 2009 and there was a further skirmish on 4 February 2010, at which time the parties were given leave to put on further submissions. The last of those submissions were received, as noted above, in mid-February 2010.

Relevant Legislation
114 Before dealing at length with the submissions by the parties, it is useful to set out the relevant legislation (set out in full for convenience even if referred to in summary or quoted above or below):-

115 Anti-Discrimination Act 1997

49B What constitutes discrimination on the ground of disability

(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 aggrieved 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 or who does not have such a relative or associate who has that disability, or

(b) ....

(2) For the purposes of subsection (1) (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) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

49D Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of disability:

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground 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) by subjecting the employee to any other detriment.

...

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

...

54 Acts done under statutory authority

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

(c) an order of the Tribunal,

(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or

(e) (Repealed)

(2) (Repealed)

(3) Except as provided in this section, this Act has effect notwithstanding anything contained in:

(a) the Co-operation Act 1923,

(b) the Financial Institutions (New South Wales) Act 1992,

(c) the Friendly Societies (NSW) Code or the Friendly Societies (NSW) Regulations,

(c1) the Co-operatives Act 1992,

(d), (e) (Repealed)

(f) the Registered Clubs Act 1976,

or any instrument of whatever nature made or approved thereunder.

116 Police Act 1990

Appointment and promotion of constables

80 Appointment and promotion of constables

(1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable.

(2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations.

(3) The Commissioner may dismiss any such probationary police officer from the NSW Police Force at any time and without giving any reason.

(4) The promotion of police officers within the rank of constable is subject to the regulations.

117 Police Regulation 2008

10 Health assessment of police officers

Before completing his or her probation and at such other times as the Commissioner may direct, a police officer must undergo a health assessment in accordance with the regulations under the Public Sector Employment and Management Act 2002 in the same way as if the person were being considered for appointment to an officer’s position in the Public Service.

Division 2 Appointment and promotion of constables

12 Appointment of constables on probation

(1) In accordance with section 80 (2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation:

(a) for a period of 1 year, or

(b) for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of that person.

(2) Despite subclause (1), the Commissioner may direct that the period of probation be less than 6 months, or may waive the period of probation completely, if the person has previously served as a police officer in the NSW Police Force or in any other police service or police force (however called).

(3) All or any part of such previous service may, with the approval of the Commissioner, be counted towards seniority.

13 Confirmation of appointment as constable

Confirmation of appointment in the rank of constable is subject to:

(a) the successful completion of initial basic training, as determined by the Commissioner, and

(b) the completion of the period of probation, and

(c) a satisfactory fitness report, and

(d) the other requirements of this Division.

14 Fitness report for probationary constables

(1) The appointment of a probationary constable is not to be confirmed unless a police officer designated by the Commissioner has reported that the probationary constable is fit to discharge satisfactorily the duties of constable.

(2) Any such fitness report is to deal with the probationary constable’s:

(a) medical fitness, as indicated by a health assessment referred to in clause 10, and

(b) aptitude for the discharge of the duties of constable, and

(c) competence, integrity, performance and conduct.

(3) If on the day on which the Commissioner would otherwise confirm his or her appointment the probationary constable is medically unfit but satisfies all other requirements, the Commissioner may confirm the appointment on and from the day the probationary constable is certified medically fit by a medical practitioner.

(4) The seniority of a constable whose appointment is confirmed in accordance with subclause (3) is to be determined:

(a) if the constable’s medical unfitness was due to any wound, injury or sickness occasioned in the actual execution of duty, as though the appointment had been confirmed:

(i) on the day on which it would have been confirmed but for the constable’s medical unfitness, or

(ii) if that day occurred more than 12 months before the day on which the appointment was actually confirmed, on the day occurring 12 months before the day on which it was actually confirmed, or

(b) if the constable’s medical unfitness was not due to any wound, injury or sickness occasioned in the actual execution of duty, as though the appointment had been confirmed:

(i) on the day on which it would have been confirmed but for the constable’s medical unfitness, or

(ii) if that day occurred more than 9 months before the day on which the appointment was actually confirmed, on the day occurring 9 months before the day on which it was actually confirmed.

15 Promotion of constables

Promotion to the grade of senior constable is subject to:

(a) the successful completion of internal or external qualifications as determined by the Commissioner, and

(b) the completion of 4 years’ service:

(i) from the date on which the constable’s appointment was confirmed, or

(ii) if the constable’s seniority runs from an earlier day, from that earlier day, and

(c) a satisfactory fitness report, and

(d) the other requirements of this Division.

16 Fitness report for promotion to senior constable

(1) A constable is not to be promoted to the grade of senior constable unless a police officer designated by the Commissioner has reported that the constable is fit to discharge satisfactorily the duties of senior constable.

(2) Any such report is to deal with the constable’s:

(a) aptitude for the discharge of the duties of senior constable, and

(b) competence, integrity, performance and conduct.

118 Occupational Health and Safety Act 2000

8 Duties of employers

(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

(2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work."

119 The Police Regulation 2000 has not been reproduced because no relevant difference was enunciated between it and the Police Regulation 2008. Where a regulation is cited below, it refers to the 2008 Regulation unless otherwise specified.

Questions for consideration
120 After all the submissions were considered, and taking into account the matters which were not in dispute between the parties, the questions before the Tribunal are these.

a)What was the nature of the treatment of the applicant by the respondent?

b)Was that treatment less favourable than the respondent treated, or would have treated, a person without the disability of type 1 diabetes mellitus?

c)If so, what was the cause of that treatment?

d)If the respondent did discriminate unlawfully against the applicant on the ground of his disability, was the respondent able to call upon any statutory defence such as s 54 or s 49D(4)(a)?

e)If the respondent does not have the benefit of any defences, what damages (if any) should be awarded to the applicant?

121 Those questions incorporate, of course, the various shades of detriment as set out in sub-ss 49D(1) and (2).

Applicant’s Submissions

122 The applicant submitted that his disability had the following characteristics:

a)the requirement of daily self administration by injection of insulin

b)HbA1c being above normal levels;

c)the risk of developing Diabetic complications with glycaemic (blood glucose) at certain level; and

d)the occurrence of or risk of hypoglycaemic instance or episodes.

123 The applicant went through the evidence which is summarised above as to the issues arising out of the characteristics of the disability of diabetes. It is not necessary to set this out in detail as much of it appears in the summary of facts above. However it was submitted during that process that the admission of the applicant to the police force at the time at which he was admitted should allow the Tribunal to infer that the applicant met the then current inherent requirements. That submission is bolstered by the training undergone by the applicant and his satisfactory – and possibly excellent - service until he was placed on restricted duties.

124 The applicant’s submissions discussed the risk of hypoglycaemic incidents or episodes by discussing the medical evidence given by Dr Chalkley, which it was submitted indicated that the applicant was at a "low risk for severe hypoglycaemia". The applicant submitted that Dr Kirby, by not taking into account the applicant’s specific circumstances, or giving him a testing period as was allowed in the Californian Peace Officers guidelines to see if he could perform the role, did not exercise an individual decision in relation to Mr Butcher. Instead, it was submitted that the mere fact of the applicant’s diabetes was considered to be sufficient to remove him from frontline policing - (see in particular, letter of Dr Kirby of 31 July, 2006).

125 The applicant submitted that during the time period accepted by the President for the complaint there was only one episode which could be seen as being an incidence of hypoglycaemia. The applicant submitted that the "gun-room incident" was equally explicable as being one of carbon monoxide poisoning or chemical exposure rather than being Hypoglycaemic. The applicant pointed to the evidence that the symptoms improved without glucose treatment.

126 The applicant set out the matters upon which he relied in seeking to show that the respondent discriminated against the him on the ground of disability in the terms or conditions of employment which the respondent afforded the applicant – (see Section 49D(2)(a) of the Act). These were submitted to be:

a)The failure to confirm the applicant’s rank as Constable of the New South Wales Police Force on or about 25 December, 2005;

b)The placement of the applicant on restricted duties on and from the 19th January, 2006;

c)On and from 31st January, 2006 maintaining the applicant on restricted duties despite his improved control of his blood sugar levels;

d)On and from 30th May, 2006 refusing to return the applicant to general duties despite the certificate from Dr Chalkley;

e)Refusing to return the applicant to general duties in an operational role on and from about 29th August, 2006, despite Dr Chalkley’s certificate; and

f)On and from 17th February, 2007 refusing to return the applicant to general duties in an operation role despite a certificate from Dr Chalkley.

127 The applicant submitted that the decision in Lavery v. Commissioner of Fire Brigade [2003] NSWADT 93 at [68] enabled the applicant to rely upon all of these issues despite that only issues (d) to (f) inclusive fell within the President’s time period. The applicant went on to particularise the basis of the claim that the applicant was discriminated against on the ground of disability by denial of access or limitation of access to opportunities for promotion, transfer or training or to any other benefits as set in Section 4949D(2)(b) of the Act.

128 The particulars of this claim were submitted to be:

a)On and from 19th January, 2006 being able to obtain confirmation as a Constable in the Police Force;

b)As a result of not being confirmed a Constable in the Police Force he has been denied the opportunity to obtain increments in his rank and remuneration under the Award;

c)As a result of being kept on restricted duties he has been limited in his access to shift allowance and overtime;

d)He was not afforded the opportunities to undertake operational Police work in accordance with normal general duties policing;

e)He has been denied training and promotional opportunities afforded to other police officers at his rank;

f)He was afforded no training or promotional opportunities equivalent to those afforded to operational police officers;

g)He has not been able to apply for transfer to another command or position; and

h)He has not been allowed to work at "User pays" events.

129 The applicant attached to his first set of submissions a schedule of economic loss which set the total economic loss $17,696.78 commencing at the period 25 December, 2005 and going through to 7 September, 2009. He also attached a schedule of comparable employees to whom I will refer as Employees 1, 2 and 3 to preserve their privacy. Two of the employees (numbers 2 and 3) attended the same police college course as the applicant and were confirmed as a Constable after 12 months on probation. Employee 1 was some classes behind the applicant. Each of the other employees performed general duties.

130 It is accepted by the respondent, in relation to the comparable employees, that the figures given in the comparable employee’s table and the schedule of economic loss are correct but the respondent does not accept that the proposed comparators are, indeed, comparators. More will said about that later.

131 The next ground of complaint is that the respondent discriminated against the applicant on the ground of disability by subjecting him to "any other detriment" (see s 49D(2)(d)). The particulars of this complaint were submitted to be;

a)In about October, 2007 the applicant was informed in writing that he had the option of resigning from the Police Force as a result of his disability; and

b)The applicant was the subject of more stringent conditions another Type 1 diabetic in the Police Force.

132 The applicant relied heavily on decisions in similar factual situations such as Burrows v. Commissioner of Police (1994) EOC 92-654 at 77, 445, Lavery v. Commissioner of Fire Brigades (supra) and on appeal to the Supreme Court in New South Wales in Commissioner of Fire Brigades v. Lavery [2005] NSW SC 268. It was submitted that the respondent should be not only a model litigant, as a representative of the Crown, but should also be a model employer (see Maxwell v. Commissioner of Corrective Services [2000] NSW ADT22.

133 The submissions as to damage and loss were made on the basis that the applicant should be placed in the position he should have been on but for the alleged unlawful discrimination (see Coleman v. Commissioner of Police (NSW Police Service) [2001] NSW ADT 34.

134 The applicant also made submissions in reply to what it presumed to be the defences to be raised by the respondent. Accordingly, we will deal with those as they become relevant.

Respondent’s Submissions
135 The respondent commenced its submissions by pointing out that:-

"There can be no doubt that Policing is a dangerous and unique profession in which front line Police Officers deal with incidents of public or civil disorder" (see Inspector Short v. the State of New South Wales (NSW Police) [2007] NSW IR Comm 138 at [23].

136 The respondent characterised the complaint of the applicant of being one that he was denied confirmation of appointment of the rank of Constable, and was directed to perform restricted duties since he suffered a hypoglycaemic episode at work. It is on this basis that the applicant contends he has been the subject of direct discrimination. The respondent rejected this contention.

137 The respondent further submitted that the applicant has sought to retreat from labelling any episodes of ill health as being related to his diabetes. The submission made at the outset of the respondent’s submissions was that this "raises fundamental issues of either the applicant lacking insight as to his condition or the necessary honesty or frankness that is required of him as a Police Officer".

138 The respondent submitted that the actions taken by the respondent were actions entitled to be taken pursuant to discretionary administrative powers under the Police Act and regulations. It was submitted that the applicant could not, through these proceedings, seek to overturn those discretionary administrative decisions of the respondent by way of de facto administrative review.

139 Additionally the respondent submitted that the applicant had not discharged the onus of proving a breach of Section 49D(2) of the Act. The respondent also took comfort in the "Statutory Authority" exception contained in s 54 of the Anti- Discrimination Act. That section is set out at paragraph 116 above and effectively it provides that anything done by a person, if it was necessary for the person to do it in order to comply with the requirement of any other act or regulation is not rendered unlawful by the Act. The respondent submits that all of his actions where made necessary by his obligations under the Police Act, and regulations, and under s 8 of the Occupational Health and Safety Act 2000 ("OH&S Act"). The respondent went on to submit that it had a firm view held on reasonable grounds that it would not be in the interest of the applicant, members of the public and or officers of the New South Wales Police Force for the applicant to be placed in an operational role. To substantiate this submission, the respondent noted that the applicant’s "capacity .... not to acknowledge that the cause of his ill health was related to his Diabetic condition" was either a lack of insight or a lack of honesty and it gave rise to a concern that he would not be able to manage his condition in an appropriate manner as a front line Police Officer and that in particular the SES incident showed that despite his good "hypoglycaemic awareness" he has been prepared to put other people at risk.

140 The respondent’s submissions were in effect that the respondent should not be forced to confirm the applicant as a constable and to place him as front line Police Officer in circumstances where the respondent doubts the applicant’s ability to recognise and deal appropriately with the symptoms of a hypoglycaemic event, or alternatively, the respondent is of the view that the applicant is not willing or able to tell the truth about when such an event occurred.

141 As to the matters raised in the applicant’s submissions, the respondent submitted that the respondent had not denied the applicant a promotion. The interplay of s 80 of the Police Act and the relevant regulations have the effect that a probationary constable may be dismissed at any time without reason and the probation is effectively the amount of time the Police Commissioner directs. Clause 13 of the Regulations provides for confirmation of appointment to the rank of constable and that confirmation of appointment is subject to, amongst other things satisfactory fitness report. Clause 14 requires that the appointment is not to be confirmed unless the probationary constable is fit to discharge satisfactorily the duties of a constable.

142 The respondent contrasts this with cl 15 of the Regulations which deals with promotion to the grade of Senior Constable. A Probationary Constable can not be promoted to Senior Constable.

143 The respondent submitted that there was no denial of the promotion to the rank of Constable. It was submitted, rather, that the applicant has not met the requirements which would lead to confirmation as Constable.

144 The respondent went on to deal with the question of whether the applicant had been "treated less favourably". It was submitted that the proper comparators where those persons without his disability in the same or similar circumstances. The decision of Purvis v. State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [222] to [224] per Gummow, Hayne and Heydon JJ, and Callinan at [273] was replied upon.

145 The respondent took issue with the comparators set out in the Schedule entitled "Comparable Employees Mark Butcher for the Period 16 December, 2005 to 6 August, 2009". The respondent submitted that as no proper comparator had been identified the applicant necessarily fails in establishing the first element of the test for direct disability discrimination in s 49D (1)(a) of the Act. Nor can the applicant, it was submitted utilise a hypothetical comparator, as no evidence was sought to be lead in relation either to an actual employee or giving an explanation why an actual employee could not be utilized (see Boehringer Ingelheim Pty Ltd v. Reddrop (1984) 2 NSWLR 13 at 19).

146 The respondent then submitted that the applicant failed the causation test. The applicant, it was submitted, was not placed on restricted duties because he was a Type 1 Diabetic. He was placed on restricted duties and was not confirmed as Constable because of:

a)Concerns that he was not managing his condition in a manner that was appropriate;

b)An apprehension that there may be continued hypoglycaemic episodes because of that failure;

c)Concerns as to his insight; and

d)Concerns as to his integrity issues.

147 The respondent then went through in some detail the facts in particular focusing on the incidents including the SES incident and the gun room incident seeking to substantiate the allegations the lack of integrity and or ability to manage the condition in which the applicant suffers.

148 The respondent’s submission relating to the s 54 defence relied on "otherwise discriminatory acts being made lawful where the act is required by another Act." It was accepted by the respondent that the onus of proving that conduct lies on the respondent (See s 109 of the Act). The respondent effectively needed to show that, statutorily, he had no option but to act as he did in order to comply with his obligations under that other Act (see Waters v. the Public Transport Corporation (1991) 173 CLR 393 at [173]). The primary statutory provision relied upon is the OH&S Act. The submission was whether from an objective point of view the engagement of the applicant on unrestricted duties as a front line police officer would constitute a risk to the safety of persons within the meaning of that Act. The respondent relied upon decisions such as Kitt v. Tourism Commission (1987) EOC at 192-196), and State Transit Authority v. Sloey [1999] NSWSC 47. In addition, the respondent submitted that he was required to consider his legal responsibilities to the applicant and not place him in position of danger.

149 The respondent asked the Tribunal to accept that the objective evidence is such that the applicant is not managing his condition sufficiently to be able to acknowledge when he has the onset of a hypoglycaemic event. In those circumstances the respondent can not place him on active duties let alone confirm him as a Constable (see New South Wales Bar Association v. Howen (No 2) [2008] NSWADT 252 at [70] to [83].

150 The respondent submitted that the applicant should not be entitled to any of the orders which he seeks. Additionally the respondent submitted that the claim for damages is based upon general and scanty material and the requirement to make a decision on probabilities is not open to the Tribunal in this case. The respondent submits that the Application should be dismissed and seeks to be heard on the question of costs.

151 Finally the respondent contends that the table of comparative employees, while there are areas of no dispute as to particular issues such as the times when the Police Officers in that table graduated when they were confirmed and when they did their Police Training, is misleading because each of the officers worked in different areas and have different circumstances as to overtime and the like. The respondent contended however that the Tribunal does not need to have regard to this given that there is no evidence that these officers are actually comparators.

Applicant’s Submissions in Reply
152 The submissions in reply dealt mainly with the issue of the comparators. The council for the applicant noted the statements in transcript on 5 August, 2009 (T8) relating to the comparable employees schedule. It was proposed on that day by the applicant that there would be informal production under a Notice to Produce and a Schedule "attached to the submissions indicating how they have been used and how calculations have been required". The counsel for the Responded indicated that "there was no objection to that occurring".

153 The submissions in reply also dealt with the attacks on the applicant’s credibility and his inability to, as it is alleged, manage his condition. The applicant then went on to deal with the manner in which the Tribunal should treat the evidence of the applicant writing the word "Hypo Mild" on the original of exhibit C page 184 despite former evidence that he had never thought that this was a hypoglycaemic episode. The applicant’s submission then indicated that the SES incident occurred outside the time period and was not something that occurred while the applicant was acting in his official duties as a police officer.

154 The applicant closely analysed the transcript and the evidence of various witnesses relating to each of these episodes and asked the Tribunal to find that the gun room incident was not a hypoglycaemic attack.

155 In relation to the defence under s54 of the Act, the applicant referred to the decision in State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v. Cahill (No 2) [2009] NSWIR Comm 189 and the decision of the High Court in Kirk v. Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v. WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 (Kirk is a decision which was given after the substantive submissions in this matter closed and thus the applicant dealt with this case by reference to the High Court transcript of argument).

156 The applicant dealt with the OH&S requirements by noting that while there was a risk of hypoglycaemia for the applicant, it was not a "real risk" (see Thiess Pty Ltd v. Inspector Stephen Jones (Work Cover Authority of New South Wales) [2009] NSWIR Comm 77-21. The question of the risk assessment which was completed by the respondent, it was submitted by the applicant, was of little weight or relevance given that there were inadequacies in the methodology and there was no input from a specialist endocrinologist to permit any individualised assessment of the applicant. It was submitted by the applicant that the assessment by Dr Chalkley as to whether Mr Butcher was fit for general duties should be sufficient for the s 54 defence to fail.

157 It was submitted that the relevant questions asked of Dr Chalkley were those in conformity with the analysis in Vickers v. the Ambulance Service of New South Wales [2006] FMCA 1232. The applicant also relied upon the decision in Lavery at the Tribunal level at paragraph [126].

158 Finally the applicant submitted that the wide powers of the Tribunal to order damages should be exercised in this case and that the material is sufficient for the Tribunal to find that the applicant has suffered the relevant damages.

Supplementary submissions by the respondent in reply
159 The respondent replied to the submissions in reply by the applicant and dealt further with the questions of the appropriate comparator. The respondent again dealt with the decision of the High Court in Purvis and in particular the majority judgment of their Honours Justices Gummow, Hayne and Heydon at paragraphs [213] to [235]. The section is set out at length but paragraphs [224] to [231] are set out in bold on the basis that they are the parts of the judgment specifically and vigorously relied upon. The thrust of the submission was that the circumstances of the treatment must be determined before the Court can consider the question of causation. The circumstances of the treatment for the purposes of this comparison is a question of fact that will turn on the fact of each particular case. In support of that submission the text Australian Anti-Discrimination Law; Text, Cases and Materials by Rees Lindsay and Rice (2008) was referred to. The respondent went on to seek to distinguish Lavery on the basis of the facts set out therein.

160 On the basis of the analysis undertaken in the submissions, the respondent contended that none of the employees referred to by the applicant are comparators. There was no evidence that any of those persons had been on restricted duties and then had been permitted to return to work as front line police officers on the unilateral clearance of their treating Doctor. This is the "critical factual finding" which is urged upon the Tribunal by the respondent.

161 The respondent submitted that this case is not about discrimination, but about the differing views of two medical practitioners. The supplementary submissions then go on to develop the question of whether a failure to confirm appointment as a Constable is a term or condition of employment – the respondent urges that it is not. It is submitted that there was no blanket policy which was applied to the applicant which excluded him from being confirmed as a Constable. It is common ground that other persons with Type 1 diabetes are serving and Front Line Police Officers for example Van Kooij against Fire and Emergency Services Authority WA [2009] WASAT 221 at [322] to [338], which confirms that there are serving officers in operational roles with a similar disability to the applicant elsewhere. The respondent submitted that the requirement by the respondent to have the applicant’s fitness assess after an extended period on restrictive duties was a requirement of being a probationary constable, and a requirement as confirmation as a constable. Accordingly there was no contravention of s 49D(2)(a); similarly there was no contravention of s 492B or s 49D(1)(a) for the above reasons. As employment as a Probationary Constable is conditional employment in the specific circumstances applying it is submitted that sub-ss 49D(2)(a), (b) and (d) are not applicable.

Supplementary Submissions by Applicant in Further Reply
162 The final set of submissions was that of the applicant in further reply. These submissions dealt with the question of appropriate comparator and the applicability of the decision in Lavery. The submission about differing views of differing medical practitioners was sought to be refuted by the applicant on the basis the only medical practitioners with specialised knowledge relevant to the case was Dr Chalkley. It was submitted that the proper comparator was not a restricted duties Police Officer but in any event if it where the likely rarity of such a creature would overcome any problems in using a hypothetical comparator.

163 As to the question of Probationary Constables and the affects of that Probationary employment, the applicant refers to Kerr v. the Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721. It is submitted that the arguments raised by the respondent were rejected in Kerr, a decision binding upon this tribunal. The final set of submissions then went on to deal with an explanation of the Schedule of Economic Loss and the Comparators.

General Observations on Submissions by the Parties
164 It is fair to say that the parties have attacked the task of written submissions with uncommon vigour. It is impossible in these written reasons for decision to deal with each argument which has been raised in appropriate detail. The transcript of the argument has been read, the written submissions have been summarised as far as possible, and the arguments, both oral and written, have all been taken into account.

165 We now come to assess the manner in which the Tribunal approaches the determination of these proceedings.

The treatment of the applicant by the respondent
166 There are two parts to this issue. The first relates to the question of the nature of the role of Probationary Constable, and the second relates to the denial or limitation of benefits alleged by the applicant.

167 The argument on behalf of the respondent is that the appointment as probationary constable took place pursuant to s 80(2) of the Police Act. A probationary constable may be dismissed without reasons at any time; s 80(3). The period of probation is one year, or such longer or shorter period as the Police Commissioner may determine. There is, accordingly, no enforceable right to confirmation to the rank of Constable.

168 Clause 13 of the Police Regulation deals with the requirements for confirmation of appointment on the basis of fitness (clause 15) which includes health (cl 10).

169 The argument was that there was no denial of a promotion to the rank of constable. The question of whether a probationary constable was a member of the Police Force was dealt with in Kerr v. Commissioner of Police and Crown Employees Appeal Board (supra). The Court of Appeal, in that case, held that a probationary constable is a member of the Police Force. Moffitt P said (at 726):-

"It has long been the practice in this state for persons entering the police force to become a probationary constable, as a necessary step to becoming a police constable. ... (and at 727) ... it is impossible to think that a probationary police constable is some type of police officer in suspense, not subject to the authorities and responsibilities of a police officer and not bound by the police rules, and not entitled to any of the benefits of services provided for in the Police Regulation Act for members of the police force".

170 The respondent countered with the comments of Boland J in Alexander v. Commissioner of Police [2009] NSWIR Comm 3, in which it was noted that the police officer was "on trial" during the probationary period and the offer of employment was conditional. It was said that this meant that there was no permanent employment as a Constable until the appointment is confirmed. While this may certainly be true, it does not mean that the failure to confirm is not a "detriment" suffered by the applicant on dismissal or being placed into probationary limbo. The respondent did acknowledge that the position put by him could fall into the terms of s 49D(1) of the Act, in that it could be an arrangement by the employer as to who is offered employment. However, the Tribunal is of the view that the applicant is certainly employed by the police force already, and that to say that the prospects of confirmation are, in effect, illusory, is to ignore the very clear terms of reg 13.

171 While Kerr is not so much on point as the applicant would contend, it is certainly the case that the movement from probationary constable to confirmed constable (as is provided for implicitly in s 80 of the Police Act and more explicitly within the Regulations), certainly a failure to confirm a probationary appointment could be seen as a failure to advance the applicant. Certainly the expectation of someone such as Mr Butcher who is appointed on probation is not that he would remain on probation for the foreseeable future; rather, the mention of "one year" in regulation 12 of the Police Regulations would set up an expectation of the average time which probationary constables may serve. Granted, the Commissioner has a power to direct a longer period, but he may not cut the minimum period any shorter than six months.

172 Regulation 14(3) provides:-

"If on the day on which the Commissioner would otherwise confirm his or her appointment the probationary constable is medically unfit but satisfies all other requirements, the Commissioner may confirm the appointment on and from the day the probationary constable is certified medically fit by a medical practitioner."

173 The evidence in this case indicates that Mr Butcher would, but for his diabetes (in which term we include the manifestation of the diabetes by way of the hypoglycaemic event on 17 January 2006), most likely have been confirmed as a constable. Had he not had the 2006 event, it is unlikely that the questions of integrity or awareness of his condition would have arisen, and we find that he would likely have been confirmed in his appointment. The evidence of Superintendant Goodwin, although given after the fact, attests to his general suitability for confirmation as a constable, and the quality of his work prior to the hypoglycaemic event leaves us in no doubt as to his suitability before that time.

174 The crux of "treatment" in the context of direct discrimination is that the respondent must have "done something" to the applicant. The failure to act (ie, to confirm an appointment) is as telling as, in other cases, a dismissal might be. It does not sit well with the respondent to say "I have done nothing – I have merely not confirmed the appointment". Rather, the Commissioner has "done" two things:-

a)put the applicant on restricted duties after the 17 January 2006 event; and

b)directed, in accordance with regulation 12(b) (or the prior equivalent) that the applicant serve a longer period of probation than one year. That direction may not have been explicit but the statutory power to extend the probationary period is found in reg 12(b) (or the prior equivalent) and a failure to confirm or dismiss must be taken to be a direction to extend the probation.

175 Accordingly, we are of the view that the status of Mr Butcher as a probationary constable, and the failure of the Police Commissioner to confirm him as a Constable, is sufficient to satisfy a "denial of access ... to opportunities for promotion ... or ... any other benefits associated with employment" at the very least. Similarly, the restricted duties directive is also something "done" to the applicant by the respondent in that he was removed from frontline policing and given duties which restricted him to the kind of work set out in paragraph 38 above. Those restricted duties were continued after the applicant’s specialist treating endocrinologist certified him as suitable for a return to full duties.

"Less favourable treatment"
176 The next question is whether the treatment of the applicant – that is, the failure to confirm him as probationary constable and/or to keep him on restricted duties - is "less favourable treatment". The terminology "less favourable treatment" uses directly comparative language; thus the doctrine of the "comparator". The High Court has said that the "comparator" in a direct discrimination case such as this must be a person who does not have the same attribute as the attribute of the complainant which is claimed to be the ground of discrimination (see Purvis, at [222] per Gummow, Hayne and Heydon JJ). Rees, Lindsay and Rice say that "in a sex discrimination complaint by a woman the "comparator" must be a man, and in a race discrimination complaint by an Indigenous Australian the comparator must be someone who is not an Indigenous person" (at [4.2.15]).

177 The dispute in this case is, who is the comparator? The question of identification of a proper comparator is a question of fact. Identification of the comparator is separate from the question of identifying the "treatment", which is also a question of fact. It is a step on the way towards, and yet a separate component, of a finding as to "less favourable treatment". Until a comparator, real or hypothetical is identified, the differential test of "less favourable treatment" can have no meaning. It is only after these steps are taken that the Tribunal can assess the next step, which is whether, if there is "less favourable treatment, it was on the ground of the applicant’s disability.

178 The applicant says that the proper comparators are police officers who commenced training at (in the case of Employees 2 and 3) or not long after (Employee 1) the same time as he did. Those persons do not have diabetes. The applicant says that the proper approach is for the comparators to be people without the disability suffered by the applicant.

179 The respondent, on the other hand, focuses on that part of the definition of comparator that requires the comparator to be a person "without the disability in circumstances that are the same or are not materially different". The submission is that there are significant material differences between the suggested comparators and the particular difference is that they have not been (it appears from the very scanty evidence) persons "who have been on restricted duties following a health episode at work and thereafter failed to satisfy the respondent’s medical officer as to the treatment of his/her condition". (Respondent’s Supplementary Submissions, par 3.2(d))

180 The respondent points to the following factors:-

a)the hypoglycaemic episode on 17 January 2006;

b)the placement on restricted duties shortly thereafter;

c)the first certification of fitness coming from Dr Chalkley in May 2006;

to base his analysis that it was the failure to satisfy the respondent’s medical officer, rather than the actual disability itself, which triggered the treatment of the applicant.

181 The submission that the applicant failed to satisfy the respondent’s medical officer is a submission which, given the passage of time, has less force. Dr Ying recommended a BSL of less than 10% for a year; Dr Kirby wanted to see a reading of 8.0 "or close thereto" (meaning 8.1 or under ) for four consecutive HbA1c readings. Mr Butcher has satisfied each of those doctors’ requirements.

182 Purvis dictates that

"[214] the comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability "in circumstances that are the same or are not materially different" ... [222] It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. ... [224] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled." (per Gummow, Hayne and Heydon JJ).

183 The comparator, then, would be a person without the disability of diabetes, but not necessarily one who had been placed on restricted duties. It would be:-

a)a probationary constable;

b)who did not suffer from diabetes;

c)who was otherwise suitable for confirmation as a constable.

184 The comparators suggested by the applicant appear, by concession or available inference, to fit the factors (although they are persons who were once probationary constables and have now been confirmed). There is very little other evidence about them.

185 Even if we are wrong about the proposed comparators being the actual people named in the schedule to the applicant’s submissions, it appears that this may be a case where a hypothetical comparator could be used. There is clear difficulty in finding an appropriate comparator – see Haines v. Leves (1987) 8 NSWLR 442 at 474. If we are wrong about the circumstances (see paragraph 184 above) and the correct comparator is a probationary constable who has been placed on restricted duties due to a health issue, then this is a case in which a hypothetical comparator can be used.

186 The question then arises, was the treatment given to the applicant "less favourable treatment" than was given to the comparators, actual or hypothetical?

187 The placing of the applicant on restricted duties, followed by the failure to return him to frontline policing even after his compliance with the two sets of medical directives (that of Dr Ying and that of Dr Kirby), along with the failure to confirm him as constable, appear to be incidences of "less favourable treatment" by the respondent. The applicant has remained a probationary constable for a significant period and during that time he has been unable to access the higher pay, opportunities for overtime and external work, and opportunities for training and frontline police work that he would have had as a confirmed constable.

188 Accordingly, the Tribunal is of the view that, despite the paucity of evidence as to the circumstances surrounding the comparators, it is clear that the treatment of the applicant – who has diabetes – and the actual comparators – who do not – has been different. That it is "less favourable" is clear.

189 If a hypothetical comparator with the attributes listed in par 184 is used, then Dr Kirby’s application to Mr Butcher of an approach that he would never be suitable for frontline duties because he was an insulin dependent diabetic would give the same result. He has been subject to "less favourable treatment" than would someone who, say, had been taken off frontline duties while a probationary constable and then never returned or confirmed.

What was the cause of the treatment?
190 The "causation" test is expressed by the majority in Purvis (supra) at [236] where their Honours said:-

"... the central question will always be – why was the agreed person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of"."

191 Gleeson CJ put the test slightly differently and said (at [13] and [14] that the focus should be on the "true basis" for the treatment of a person.

192 The respondent submitted that the applicant was placed on restrictive duties and not returned to frontline policing, not because he was a type 1 diabetic, but because of concerns that he was not managing his condition properly, fears that he may have future hypoglycaemic episodes, and concerns as to his insight into his condition and the integrity issues which arose out of his reporting of his ill-health.

193 The applicant says that the less favourable treatment was because he was a diabetic, and points to what he says is a long history of Dr Kirby’s antipathy towards him. Letters such as those of 4 September 2006 (Annexure N, p 34, of Dr Kirby’s affidavit) in which Dr Kirby said, "At present I am recommending restrictions on the grounds that we do not have a clear picture of his actual tendency for hypoglycaemia because of his premeditated actions in attempting to cover this [ie, his running his blood sugar at high levels] up". The applicant submits that Dr Kirby regarded his hypoglycaemic episode of January 2006 as being in effect evidence of an insurmountable obstacle to Mr Butcher being suitable for confirmation as a constable or returned to frontline policing duties.

194 Certainly, looking at the evidence as events have evolved through to 2010, it is clear that any concerns that the respondent may have had in early 2006 as to Mr Butcher’s ability to manage his blood sugar at a safe level while avoiding hypoglycaemic events should have been allayed. And given the findings of this Tribunal as to Mr Butcher’s honesty and attempts to do his best to provide his recollections to the Tribunal, perhaps the "integrity" issue too will fade away. But that is not the test. The question is whether the "less favourable treatment" given to Mr Butcher by the respondent was "on the ground of" his disability.

195 There is very little evidence about whether there was a blanket policy against the employment of type 1 diabetics as frontline police officers, but what little evidence there is points against that (see, in comparison, the policies relating to particular disabilities in Lavery (supra), Vickers v. the Ambulance Service of NSW (supra) and Holdaway v. Qantas Airways Ltd (1992) EOC 92-395. The evidence is that there are, indeed, type-1 diabetics in the police force and no evidence that they should be put on restricted duties.

196 Rather, the placing on restricted duties arose principally out of the respondent’s concern that the applicant was not able to manage his blood sugar levels appropriately – whether that appropriateness was because of the long-term health effects that may arise out of those blood sugar levels, or the risk of hypoglycaemic incidents such as that of January 2006. To submit the applicant to less favourable treatment on the basis that he had demonstrated that he had not been managing his blood sugar properly and actually did suffer a hypoglycaemic attack is not "less favourable treatment" "on the ground of" his disability; much like the minor student in Purvis, the respondent is required to have regard to other persons and to the safety of the applicant himself in making such a decision. The decision to place him on restricted duties was one taken well within the operational discretions of the respondent and with its occupational health and safety views in mind.

197 Accordingly, the Tribunal is of the view that no unlawful discrimination took place in the decision in early 2006 with the decision to place Mr Butcher on restricted duties.

198 After that, the position changes somewhat. Mr Butcher was assessed on 19 January 2006 and returned on restricted duties. It was noted in that assessment (annexure K, p 27 to Dr Kirby’s affidavit) that Mr Butcher was eligible as at December 2005 for confirmation to the rank of constable.

199 Dr Thomas’ formal recommendation on 6 February 2006 was that Mr Butcher remain on restricted duties (as set out in paragraph 40 above) until he provided a clearance from Dr Chalkley in specific terms. He received this clearance on 30 May 2006 (although it did not refer specifically to Mr Butcher’s knowledge of identifying hypoglycaemic episodes, and it referred to "normal police duties" rather than the specifics required by the recommendation. Dr Chalkley attested to Mr Butcher’s management skills and knowledge of insulin management in his letter of 13 February 2007 and had done so prior to that; it is clear from the entirety of the evidence that if Dr Thomas had asked Dr Chalkley on or shortly after 30 May 2006 that Dr Chalkley would have given the same opinion at that time). Dr Kirby replied to this letter on 31 July 2006, setting out the history, and noting that "In summary this officer is insulin dependent which would generally present an unacceptable risk for him to be in front line policing ... the one episode of documented hypoglycaemia was incompatible with frontline policing". This letter appears to demonstrate a hardening of Dr Kirby’s views to a point where the applicant, on the ground of his insulin dependence , was unsuitable for frontline police duties.

200 The following correspondence between Drs Kirby and Chalkley, and Dr Kirby’s evidence in the witness box, demonstrate that Dr Kirby took an unmoveable position on Mr Butcher, whatever his views as to other diabetic police officers may have been. In particular, Dr Kirby’s reluctance to accept that Mr Butcher has complied with the "under 8.0 for one year or close to that" despite the facts demonstrates that he has a firm view that Mr Butcher, on the ground of his diabetes, is unsuitable for frontline policing.

201 The unwavering nature of Dr Kirby’s view is shown in the risk assessment relating to Mr Butcher. His assessment of almost any risk relating to Mr Butcher as having extreme or catastrophic consequences, lacks credibility given the satisfactory service of Mr Butcher so far and the glowing report of Superintendent Goodwin (noting, however, that Superintendent Goodwin did not offer a view on whether Mr Butcher should be confirmed as a constable or not). Dr Kirby’s early questioning – on no sound basis – of Mr Butcher’s integrity and his fixed approach to Mr Butcher’s suitability despite Dr Chalkley’s more informed views speaks of some degree of bias against Mr Butcher.

202 It is the view of the Tribunal that this approach of Dr Kirby which was adopted by the commissioner satisfies the definition of direct disability discrimination on the basis of the applicant’s diabetes in:-

a)failing to return him to front line policing duties once he had been cleared by Dr Chalkley after 30 May 2006 (s 49D(1)(c)); and

b)failing to consider Mr Butcher for confirmation to Constable after 30 May 2006 (s 49D(2)(b)).

The relevant date after 30 May 2006 would be 31 July 2006 when Dr Kirby had the opportunity to review Dr Chalkley’s response and formulate a reply.

"Inherent Requirements defence".
203 The respondent raises the defence available to him in s 49D(4)(a) which provides that discrimination on the ground of a person’s disability is not unlawful if , having taken into account the person’s qualifications, training, and (as Mr Butcher was already employed by the respondent) his performance as an employee, he would be unable to carry out the inherent requirements of a frontline police officer.

204 We do not understand the respondent to be raising the defence in 49D(2) which relates to "unjustifiable hardship" on the employer on the basis of services or facilities required by Mr Butcher. The evidence is clear that the requirements would be minimal and restricted to allowing Mr Butcher to self-test for blood sugar, to eat when required (say, a muesli bar or a can of soft drink) and to carry his medication and testing pack.

205 The "inherent requirements" are set out in Exhibit D at page 88 – a document headed "Advice on the Functional Requirements for the diploma of Policing Practice and Operational Policing Duties". The "old" inherent requirements are set out at pp 89-91 of that Exhibit. It was put to us that there was no substantial change between the two.

206 The "inherent requirements" include physical ones ("walk long distances while performing beat duty or stand for lengthy periods while on traffic duty", and "cope with the climatic variables associated with outdoor duties"), requirements of judgment, of managing crowds and crime victims, and have sufficient physical capabilities to perform these roles (see, in the "old" requirements, specifics as to vision). It was submitted that Mr Butcher would be unable to carry these out in circumstances where he was suffering even from mild hypoglycaemia. The respondent pointed to a number of these in oral submissions and also referred to the risk of his retinopathy causing vision problems in the future.

207 The evidence is that Mr Butcher was well able to carry out the inherent duties of a police officer – at least at the level of probationary constable – prior to January 2006. He was able to control his blood sugar level –albeit at a higher than appropriate range – to restrict the risk of hypoglycaemic attacks. His level of hypoglycaemic attacks has been low since starting on Lantus and the episodes which he has had since then have not occurred during the period of "under 8.0 for one year".

208 It is the Tribunal’s view that there is no evidence that Mr Butcher is not able to fulfil the inherent duties of a police offer. Dr Chalkley’s view is that the risk of a severe hypoglycaemic event is low. No risk can be completely excluded – police officers without diabetes may suffer similar symptoms to someone suffering a hypoglycaemic event by reason of, perhaps, an acute viral illness or perhaps even a stroke. These are not risks which can be removed completely from consideration and these, too, would have "catastrophic" or "major" results should they happen exactly at a particularly intense moment in policing.

209 If the appropriate arrangements are made for him to be able to check his glucose levels and treat himself accordingly (either with insulin or with food/drink) then there is no reason to suspect that he would be unable to fulfil his duties as set out in the "inherent requirements" documents. It is difficult to see how this defence can be maintained now that Mr Butcher has fulfilled Dr Kirby’s requirements of "under 8.0 for one year".

Section 54 defence
210 Section 54 provides that an otherwise discriminatory act will be lawful where that act is necessary to comply with the requirement of any other Act. The onus to prove this lies on the respondent – see s 109 of the Act. In order to succeed, the respondent needs to prove that he has "no option but to act as he did in order to comply with his obligations in another Act" – see Waters v. Public Transport Corporation (1991) 173 CLR 393 at [173] per Dawson and Toohey JJ.

211 The respondent contends that he was entitled to the benefit of this defence on the basis of his duties under the OH&S Act. In particular, the Commissioner is required to consider whether, from an objective point of view, the placing of the applicant on unrestricted duties would constitute a risk to the safety of others; see sub-ss 8(1) and (2) of the OH&S Act.

212 In support of that contention, the respondent referred to Kitt v. Tourism Commission (supra) and State Transit Authority v. Slooey (supra). In the latter case, the STA required that bus drivers who had suffered coronary arterial disease be certified unfit to drive for 12 months after coronary artery graft surgery. Justice Barr considered whether such a certification was "necessary" under ss 15 and 16 of the OH&S Act (those sections dealing with risk to the public). Those sections, like s 8, set up offences of strict liability and no mens rea is required. At paragraph [53], Barr J said:-

"Although it was entitled to point to the heavy duty resting upon it because of ss 15 and 16 ... I think that in order to establish the defence of necessity it had to do more than prove that Mr Sloey fell into a category of drivers who epidemiologically presented an increased risk of symptoms. in my opinion STA had to show that it was necessary to certify Mr Sloey himself unfit to drive a bus. That is to say, STA was obliged to consider the risks that Mr Sloey presented as an individual".

213 Barr J then went on to cite Kitt v. Tourism Commission (supra) as authority for this proposition. In Kitt, the applicant had epilepsy, and worked as a caves guide, and the Tribunal held that the question was determined not by what the employer believed, or whether that belief was held on reasonable grounds, but whether, "from an objective point of view, Mr Kitt’s employment constituted a risk to the safety of other persons".

214 The respondent also relied upon the decision of Laycock v. Commissioner of Police, NSW Police [2006] NSWADT 261 in which a police officer with a back injury was found unable to fulfil the requirements of his duties. That decision, however, is not directly on point, as the principal finding of the Tribunal was that the applicant had not been the subject of unlawful discrimination and therefore no question of s 54 arose.

215 In our view, bearing in mind the exhortations in Purvis and in Z v. the Commonwealth [1999] HCA 63; [1999] 200 CLR 177, for employers to consider their legal responsibilities to others, this too is subject to individual consideration of the particular circumstances. The respondent asserted that Mr Butcher’s case differs from that of Vickers in important factual bases, including that "Dr Kirby has not expressed the view in respect of the Applicant that all type 1 diabetics should be excluded from employment with the NSW Police Force". While there were serving officers in the police force with type 1 diabetes, Dr Kirby’s view (as expressed in the letter of 31 July 2006 quoted in paragraph 200 above) was that insulin dependence "generally" poses an unacceptable risk and that view was maintained, despite Mr Butcher meeting the requirements for HbA1c levels with no hypoglycaemic events, set by Dr Kirby himself. This implacable view was imported into the "risk management tool" which was prepared inter alia by Dr Kirby and informed his views as to the likelihood, and the level, of particular risks.

216 The respondent also viewed Mr Butcher’s "lack of insight" and "diabetes management" as insufficient for him to serve as a police officer and giving rise to difficulties in complying with s 8 of the OH&S Act. In the Tribunal’s view, the respondent must fail in its s 54 defence to the extent that it relies upon Mr Butcher’s "lack of insight". He impressed the Tribunal as a person who, on the contrary, had thought a great deal about the management of his diabetes and the way it could impact upon his duties as a police officer. He was under the regular care of Dr Chalkley who, too, is well aware of the requirements for Mr Butcher in his chosen career. We are also of the view that it is not a sustainable argument that Mr Butcher’s diabetes is "not well controlled" when faced with the past year’s HbA1c results.

217 We are of the same view when it comes to the respondent’s concerns about Mr Butcher telling the truth about aspects of his diabetes. This view of Mr Butcher as untruthful first seems to have raised its head in Dr Kirby’s letter of 14 June 2006 in which he said that Mr Butcher had undertaken "premeditated actions in attempting to cover this up". Dr Kirby said he "believe[d] this case has integrity, as well as medical issues to sort out". This view seems to have trickled into the official view of Mr Butcher without, we can say, much justification.

218 Given that the Tribunal has found that the applicant was a witness of truth, and that in effect any medical issues have been "sorted out" by the maintenance of his HbA1c levels over the past year with no hypoglycaemic incidents, these defences are not made out.

219 Accordingly, the Tribunal does not consider that the risks pointed to by the respondent are such that it should have the benefit of the s 54 defence. The respondent is in a position to manage the risk by taking steps such as allowing the applicant to carry his glucometer, insulin and carbohydrates, and by educating those serving with Mr Butcher so that they have a level of understanding of the kind of problems which may arise should there be a hypoglycaemic incident. However, having said that, the Tribunal is satisfied that Mr Butcher’s awareness and control of his diabetes is such that any risk of an adverse event would be minimal.

Orders
220 The respondent raised a number of issues with the form of any orders which were to be made, should the applicant be successful, and bearing in mind the need for the applicant to satisfy the requirements of the Police Regulation in order, in particular, to be confirmed as a constable, the orders need to be carefully framed.

221 The powers of the Tribunal to make orders was found in (then) s 108 of the ADT Act. That section (as it applies to these proceedings), provides the Tribunal with the following powers with respect to complaints

(1) In proceedings relating to a complaint, the Tribunal may:

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

(2)If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

.....

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

(3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.

(4) The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.

(5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.

.....

(7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

222 Section 108 was amended with effect from 1 January 2009 and the amended provision does not apply to applications and proceedings that were made on or commenced but not finally determined before that date. (ADT Act, Schedule 5, Part 11, Clause 43(2) (i)). As these proceedings were commenced prior to that date, the maximum award that can be made is $40,000.

223 The applicant has, by reason of the unlawful discrimination, been denied the opportunity to work longer hours, overtime and "user pays" events.

224 The sums set out in the "Schedule of Comparative Employees" were agreed to be correct so far as they reflected the pay rates available to other officers who were confirmed as constables at a time when the applicant would most likely, but for his diabetes, been so confirmed; while the respondent takes issue with their applicability he does not take issue with the numbers. Accordingly, the parties should agree on the average sums of those three officers and provide an agreed figure on the basis of those earnings from 31 July 2006 until the date of the orders, as long as that figure comes below the statutory limit. The Tribunal does not consider that "user pays" events are, on the evidence, a proper loss to be taken into account in that they are opportunities provided by persons other than the respondent and it is impossible to predict what kind of "user pays" events the applicant may be able to attend.

225 The applicant seeks general damages. In Commissioner of Police, NSW Police v Mooney (No.3) [2004] NSWADTAP 22 the Appeal Panel said (at [48]):-

48 When determining what may constitute the "loss" for which a successful applicant in a discrimination case may be compensated by an order for the payment of damages, the Tribunal should apply what is referred to in tort law as the compensatory principle. Whilst Spigelman CJ pointed out in Harriton v Stephens [2004] NSWCA 93 at [7] that the principle is capable of being stated in different terms, which sometimes produces different outcomes when it is applied, it is common to refer the explanation of the principle by Mason CJ, Dawson, Toohey and Gaudron JJ in Haines v Bendall [1991] HCA 15; (1990) 172 CLR 60 at 63:

"The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed..."

226 We are of the view that the compensation which the applicant has suffered extends beyond the mere loss of income. He has been frustrated and "demeaned" by the backroom jobs he has been asked to undertake for a number of years. He has suffered through the lack of training and other opportunities denied him and while he has called no psychological or other evidence going to his frame of mind, he is not required to do so to establish loss of this kind. Damages of this kind where no physical injury has been suffered are generally not large. A sum of $10,000 seems appropriate to compensate the applicant for being frustrated and demeaned by his lack of opportunity.

227 The Tribunal:

a)Finds the complaint that the applicant has been discriminated against on the grounds of his disability, being diabetes, in contravention of s 49D(1)(a) and 49D(2)(b) substantiated in that:-

i) the respondent failed to return the applicant to unrestricted duties on or after 31 July 2006; and

ii) the respondent failed to give the applicant an opportunity to be considered for confirmation as Constable pursuant to reg 13 of the Police Regulations 2008 or alternatively reg 14 of the Police Regulations 2000;

b)Enjoins the respondent from continuing to extend the probation of the applicant given the factual findings of the Tribunal;

c)Orders the respondent to pay general damages to the applicant in the sum of $10,000;

d)Orders the respondent to pay damages to the applicant in a sum to be agreed or, failing agreement, to be argued before the Tribunal on a date to be fixed, such sum to reflect:-

i)loss of income arising out of loss of increments;

ii)loss of income arising out of the loss of the opportunity to undertake overtime, shift allowances, and other work related payments arising from normal policing duties;

iii)loss of superannuation benefits arising from the above losses;

iv)interest as and from 31 July 2006.

e)Directs the parties to agree on a timetable, or to provide the Tribunal with alternative timetables, as to submissions should they wish to argue the question of costs.