Wannabe cop rejected over 'character' issues

Wannabe cop rejected over

By Mike Toten on 16 October 2018 An unsuccessful applicant to the NSW Police Force said he was rejected due to disability discrimination, but the force successfully argued it was because of concerns about his character and honesty during the screening process.

Facts of case


Hani El-Kassir alleged disability discrimination by NSW Police over a 13-year period covering more than one application to join. He claimed to have the disabilities of post-traumatic stress disorder, depression, anxiety and schizophrenia. Only his most recent application in 2016 was considered by the NSW Civil and Administrative Tribunal in this case, although he claimed that the Police Force had taken into account information about disabilities from his previous applications when making its latest decision to reject him.

The Police Force denied having taken any disabilities into account and claimed that it made its decision due to lack of candour about events in his past that could have reflected adversely on his application.

The evidence


The Police Force recruitment involves seven stages, the first of which is to lodge a Professional Suitability Application (PSA). The force then attempts to verify the information on the PSA. It asked Mr El-Kassir to provide further information relating to two public incidents – suspension of his taxi driver licence, and previous applications to other law enforcement agencies.

The following information came to light:
  • He claimed that his taxi licence was suspended after he allowed two passengers back in his cab after one of them had assaulted someone. However, the Police Force discovered that he had also been the subject of complaints to the Ministry of Transport (MOT) by members of the public relating to aggressive driving and verbal abuse. The MOT had found the complaints to be substantiated and his licence was cancelled, not suspended. He then claimed that he had been on incorrectly-prescribed medication at the time.
  • He had failed to declare receiving a “move on” direction from police after an altercation in public. He claimed he did not declare it because he was attacked first and was the victim, but this claim was contrary to the police incident report.
At this stage of the screening process, medical information is not evaluated, even if provided on the PSA. The recruiter claimed that she was not qualified to evaluate it, and therefore did not attempt to do so.

Her report noted the following:
  • concerns about the above non-declarations and limited information provided about the incidents
  • when asked for further information, Mr El-Kassir was evasive and “belligerent and problematic”
  • some omissions and mistakes in completing the PSA
  • she had discovered that he applied to join the Victorian Police in 2012, but was rejected on medical grounds. However, she was aware of a “previous medical condition” only to the limited extent disclosed by Mr El-Kassir on the PSA.
Her report recommended that his application be rejected.

The PSA stated clearly that any information filed by applicants before making their current application could not be relied on. The Police Force claimed that it did not consider any possible disability issues related to any previous applications and its recruiter did not have access to previous applications. It did not obtain further information on the medical reasons for rejection by Victoria Police. The NSW Police Force only considers medical/disability issues at a later stage of its selection process.

Mr El-Kassir failed to prove that the Police Force took information from his previous applications into account.

He also argued that the Police Force had accepted other applicants with past convictions, therefore his disability must have been the reason for his rejection.

Decision


The Police Force rejected Mr El-Kassir’s application because of its concerns about his character and integrity. In relation to the incidents mentioned above, he had lied about them, understated their gravity or attempted to conceal them. The serious incidents and his explanations of them amounted to conduct that the Police Force could regard as inappropriate for a police officer, who needed to be trustworthy and reliable.

If he had wanted any medical/disability issues to be taken into account in evaluating his employment application, he should have frankly admitted the past conduct and provided medical evidence with his application. 

The Police Force had not taken any past or present disability into account in its decision to reject him. The “character” issues provided a clearer and more logical explanation of the decision.

The tribunal rejected his argument relating to accepting other applicants with past convictions but without his disability, stating that he failed to provide evidence that this occurred, and it was unclear whether or not such applicants had declared their convictions up-front.

The bottom line: An employer is entitled to reject applicants because they have been dishonest or evasive in their employment applications. Being of “good character” takes on even greater importance in roles such as police officers, and in this case the Police Force had a code of conduct it could refer to.

Medical information supplied by applicants should only be assessed by people appropriately qualified to do so.

If a previous applicant re-applies, the application should be treated as a new one and the applicant treated equally to new applicants. The employer should seek new information relevant to the job, not rely on information provided with previous applications.

Read the judgment


El-Kassir v Commissioner of Police, NSW Police Force [2018] NSWCATAD 232, 5 October 2018
 

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