Discriminated ‘asthma’ cop awarded $11k for lost promotion

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Discriminated ‘asthma’ cop awarded $11k for lost promotion

A NSW Police constable has been awarded over $11,000 in damages by the Administrative Decisions Tribunal, which found that the state Commissioner had discriminated against him on the grounds of his ‘presumed’ asthma condition and, thus, unnecessarily denied him a promotion opportunity.

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A NSW Police constable has been awarded over $11,000 in damages by the Administrative Decisions Tribunal, which found that the state Commissioner had discriminated against him on the grounds of his ‘presumed’ asthma condition and, thus, unnecessarily denied him a promotion opportunity.
 
In 2007, the constable applied for duties with the State Protection Support Unit (SPSU) in addition to his ordinary officer duties. The constable was already a part of another specialised unit, the Operational Support Unit.
 
As a pre-requisite of acceptance to the SPSU, the constable was required to pass various medical and fitness assessments — including a tear gas exposure test — to the satisfaction of the Police medical officer.
 
However, the medical officer refused to allow the constable on the grounds that he had indicated a childhood history of asthma and this conflicted with the NSW Police Commissioner policy that any officer who has or has disclosed a history of asthma, including childhood asthma, is not permitted to take this test.
 
To prove he did not have asthma, the constable provided the medical officer with a letter from a consultant thoracic physician and a report from the Head of the department of Respiratory Medicine at the Royal Prince Alfred Hospital School of Medicine, both of which found no evidence that the constable suffered asthma. Despite these opinions, the medical officer refused to allow the constable to undertake the test, because he had ‘possibly’ suffered childhood asthma.
 
The constable’s union, the Police Association of NSW, then lodged a complaint with the Anti-Discrimination Board (ADB), which then referred the complaint to the Administrative Decisions Tribunal.
 
No asthma diagnosis, but opportunity denied on presumption
 
The Tribunal (Deputy President Nancy Hennessy and non-judicial members Joachim Schneeweiss and Maurice O’Sullivan) heard that the constable’s relevant history was limited to one occasion at the age of five when he suffered ‘mild’ breathing difficulties after exposure to kerosene flames, with his GP expressing the view that he had a ‘mild’ form of asthma.
 
The Tribunal otherwise heard the constable had undergone regular medical assessments, including assessments related to lung function while he was a member of the Australian national swimming team, but had never been diagnosed as suffering from asthmatic airways condition, had never been medicated for asthma, nor had he ever had an asthma attack.
 
Hoping to settle the matter outside of the hearing, the NSW Police Commissioner filed no evidence as directed but claimed that the constable is presumed to have had, and will continue to have, an impairment of the lungs.
 
Lost opportunity caused hurt, humiliation and distress
 
The Tribunal was satisfied that the NSW Police Commissioner had breached s49D (2)(b) or (d) of the NSW Anti-Discrimination Act 1977, which makes it unlawful to discriminate against an employee on the ground of disability ‘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 by ‘subjecting the employee to any other detriment’.
 
‘The initial and continued refusals constitute a denial of access to opportunities for training, a denial of access to opportunities to earn special allowances associated with holding a position as a part-time operative of the SPSU and a denial of access to opportunities to earn overtime and other work related allowances associated with the performance of work as a part-time operative of SPSU.’
 

‘The [Commissioner] discriminated against [the constable] by treating him less favourably than it would have treated a person who it did not think had a disability in the same circumstances. That treatment was on the ground of [the constable’s] presumed disability.’
 
‘The complaint is substantiated.’
 
NSW Police Commissioner agreed to re-credit the constable for the seven days leave he had to take as a result of the Commissioner’s decision and agreed to allow him to complete the SPSU entry pre-requisites, including the tear gas exposure test at the next available opportunity.
 
Pursuant to s108(2)(a), the Tribunal awarded the constable damages totalling $11,831. This sum covered costs associated with obtaining medical reports for the purpose of substantiating his case; the costs associated with travel and accommodation for the purposes of attending the ADB, the Tribunal and case preparation; lost overtime earnings and allowances associated with denied opportunity to join the SPSU; and compensation for the hurt, humiliation and distress caused by the Commissioner’s breach. 
 
 
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