NSW Police Commissioner slammed for backflip on trainee disability

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NSW Police Commissioner slammed for backflip on trainee disability

The NSW Administrative Appeals Tribunal has ordered the NSW Police Service to pay a trainee with a mild sight defect $15,000 in damages for disability discrimination.NW

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The NSW Administrative Appeals Tribunal has ordered the NSW Police Service to pay a trainee with a mild sight defect $15,000 in damages for disability discrimination.

The tribunal ordered the damages to the trainee for the distress he suffered on being rejected after successfully completing his first year of training and then being forced to fight the issue for nearly three years before the Police Commissioner finally admitted, just before the hearing, that his actions were in fact discriminatory.

Background

The complainant successfully applied to join the Police Service in August 2000 after satisfying the health and character requirements of the NSW Police Professional Suitability Assessment. He undertook the first step of his training which was 12 months academic training at the Police College in Goulburn. At the end of this year, he was given a second health assessment.

He was told that he would not be able to progress to the second stage of training, as a probationary constable, because his visual acuity was impaired. The complainant suffers from amblyopia, which is the medical term to describe loss of visual acuity without structural abnormality of the visual pathway and which is not correctable by optical means. This means he has a partial, though mild, loss of function in his left eye.

The commissioner initially maintained that his decision to refuse the complainant’s application for employment was quite lawful because he was unable to perform the inherent requirements of the position of a police officer due to his disability.

Just prior to the case going before the tribunal, the commissioner admitted a contravention of s49D(1)(b) of the Anti-Discrimination Act (NSW)and agreed that he had discriminated against the complainant on the grounds of his disability. He also admitted that the complainant had successfully completed all of his training requirements, including a placement at the Newcastle Police Station, and that during this period he was not advised of any difficulties or dissatisfaction with his training results.

Increased distress relevant

The tribunal said that while there seemed to be little point in further complicating discrimination cases by taking the common law concept of aggravated damages into consideration in determining non economic loss, 'the rationale which underlies aggravated damages - increased distress as a result of the manner in which the wrong was committed - is clearly relevant when determining how to calculate that monetary figure'.

It said that in this case the complainant spent nearly a year of his life at the Police Academy preparing to be a police officer. At the end of this 'he was advised [over the telephone] with little ceremony and consideration for his feelings that his chosen career with the NSW Police Service was over'.

Despite various attempts, he was unable to persuade the commissioner to reverse this decision and, finally, 15 months later, he lodged a complaint with the President of the Anti-Discrimination Board.

The commissioner’s initial response was that his actions were lawful and he declined to re-consider. The commissioner maintained this position until four days before the tribunal was scheduled to begin its inquiry when he admitted that his conduct was unlawful:

'In the circumstances [the complainant] is quite entitled to be considerably distressed by the fact that was deprived of the opportunity to graduate with his colleagues from the Police Academy, that he was unable to pursue his chosen career for nearly three years, and that 32 months after he was told that his police career was over, even though he had successfully completed a year’s training, the commissioner has admitted that he was not lawfully entitled to act as he did.'

Conclusion

The tribunal concluded that $15,000 was a fair and reasonable figure to compensate the complainant for the distress he had suffered. It gave the commissioner 42 days to determine the complainant’s application to join the NSW Police Service without reference to the existing standard for visual acuity. If the application was unsuccessful, the tribunal ordered the commissioner to pay a further sum of $20,916 plus interest for economic loss to compensate the complainant for the cost of needlessly undergoing his first year of training.

Johnson v Commissioner of Police, New South Wales Police [2004] NSWADT 198 (10 September 2004)

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