[2007] WASAT 55 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : WINTER and COMMISSIONER OF POLICE [2007] WASAT 55 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT) MS E BRICE (SESSIONAL MEMBER) PROF C MULVEY (SESSIONAL MEMBER) HEARD : 18 - 21 SEPTEMBER 2006 DELIVERED : 26 FEBRUARY 2007 FILE NO/S : EOA 117 of 2005 BETWEEN : SCOTT WINTER Applicant AND COMMISSIONER OF POLICE Respondent Catchwords: Equal opportunity Direct discrimination in employment on the grounds of impairment Relevant comparator Estoppel Legislation: Equal Opportunity Act 1984 (WA), s 4, s 5, s 66A, s 66A(1), s 66B, s 66(B)(2)(b), s 66(B)(2)(c), s 89, s 90 Police Act 1892 (WA), s 8 State Administrative Tribunal Act 2004 (WA), s 87 Page 1 [2007] WASAT 55 Result: Impairment discrimination complaint dismissed Category: B Representation: Counsel: Applicant : Ms EP Roche Respondent : Ms CJ Thatcher Solicitors: Applicant : Lisa Roche Respondent : State Solicitor's Office Case(s) referred to in decision(s): Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Dowling v Bowie (1952) 86 CLR 136 Frost and WA Police Service [2005] WASAT 150 Ghockson v Commissioner of Police (Unreported, Equal Opportunity Tribunal; No 92798; 29 November 1995) Jamal v Secretary, Department of Health & Anor (1988) 14 NSWLR 252 Purvis v State of New South Wales (Department of Education and Training)(2003) 217 CLR 92 Williams and Commissioner of Police [2005] WASAT 349 Winter and Commissioner of Police [2006] WASAT 87 Page 2 [2007] WASAT 55 REASONS FOR DECISION OF THE TRIBUNAL: Summary of Tribunal's decision Mr Winter, a former police officer, claimed that the Commissioner of 1 Police discriminated against him on the basis of an impairment, when the Commissioner served him with a s 8 (Police Act 1892 (WA)) notice of dismissal and when the Commissioner subsequently agreed to Mr Winter's medical retirement from the Police Service. The parties accepted that Mr Winter suffered from work related post traumatic stress disorder and that he was therefore impaired for the purposes of the Equal Opportunity Act 1984 (WA). Mr Winter claimed damages, arguing that because of his mental state he did not have the capacity to make the decision to accept medical retirement and that he should have been retained and rehabilitated back into the Police Service when he was medically assessed as fit to resume his duties. Mr Winter made this claim despite medical reports confirming his inability to return to active service and his agreement to settle proceedings in the WA Industrial Relations Commission on that basis. The Tribunal heard evidence from 16 witnesses over four days, 2 including from Mr Winter. The Tribunal did not accept Mr Winter's evidence, finding him not credible and finding his evidence often inconsistent; rather the Tribunal relied on evidence from other witnesses and from documents before it. The Tribunal found that the Commissioner did not discriminate 3 against Mr Winter when he dismissed him and subsequently agreed to his medical retirement. The Tribunal held that the Commissioner was entitled to take into account Mr Winter's disciplinary history, which included: convictions for corruption for falsifying records as a public officer; sending an email that the Commissioner described as containing "offensive and derogatory language" to the Health and Welfare Branch of the Police Service; and an incident in Kalgoorlie where Mr Winter went to the police station and advised another officer that he had come into the station to "throttle and kill" the officer in charge and that because of his illness he had visions of wanting to kill officers at the station in a sniper style shooting. The Commissioner was also entitled to take into account the safety 4 of other officers and the public when considering Mr Winter's position. The Tribunal held that the Commissioner is in a special employment relationship with his officers, in that he must be able to trust his officers and rely on their integrity, honesty, competence and proper performance Page 3 [2007] WASAT 55 and conduct. When that trust is broken, the proper functioning of the Police Service is at risk and the public's assumption of an effective operational Police Service and therefore a safe community is jeopardised. Mr Winter's conduct was sufficient for the Commissioner to 5 conclude that his trust in Mr Winter was broken. The Tribunal held that the relevant conduct for it to consider was the 6 Commissioner's conduct in dismissing Mr Winter or agreeing to his medical retirement. Mr Winter's perception of the Commissioner's conduct or its perceived or real effect on him was not a relevant consideration. The Tribunal did not accept Mr Winter's argument that the Commissioner should excuse his conduct because he was mentally impaired at the time, commenting that to accept such an argument would result in the Commissioner being unable to maintain reasonable standards of behaviour within the Police Service and that it would be inconsistent with the basic principles of the Equal Opportunity Act 1984 (WA) which required the Tribunal to apply a notional comparator when deciding if the Commissioner's conduct was discriminatory. The Tribunal also rejected Mr Winter's contention that he did not 7 have the mental capacity to make the decision to either request or accept medical retirement. The Tribunal also found that there was no evidence to support 8 Mr Winter's contention that there was a conspiracy to get rid of him from the police service. Mr Winter had a history of performance problems and of not accepting decisions or actions of senior officers in authority. Mr Winter seemed unable and unwilling to accept any responsibility for his actions or the consequences of his actions. The Tribunal applied the facts as it found them to the relevant 9 comparator, namely did the Commissioner treat Mr Winter less favourably than he would have treated an officer without Mr Winter's impairment who engaged in the same or similar conduct as Mr Winter. On that basis the Tribunal held that the Commissioner had not 10 discriminated against Mr Winter on the grounds of his impairment and the Tribunal dismissed Mr Winter's application. Background Mr Winter was a member of the Western Australia Police Service 11 (WAPS) from 1989 – 2003. Page 4 [2007] WASAT 55 Initially Mr Winter's work involved traffic and accident inquiries and 12 he subsequently worked in forensic, ballistics and the Commissioner's secretariat. He attended his first fatal accident in 1989 and was referred for psychological counselling then and again in 1994. In the course of his duties, Mr Winter was subjected to a wide range of experiences, often traumatic, that a police officer would expect to experience. In February 1991, Mr Winter received a letter of commendation from the Acting Chief Superintendent (Traffic) for his actions in recovering the body of a person trapped in water under a tractor. In 1998 Mr Winter's father became seriously ill and there were a 13 number of other traumatic family events that contributed to his psychological state, resulting in him being diagnosed with depression in April 1999. The licence incident In September 1998, during his employment at Norseman Police 14 Station, Mr Winter falsely granted additional vehicle classes to his own driver's licence and to the driver's licence of a customer services officer, without either of them passing the necessary tests (the licence incident). This was criminal conduct and Mr Winter was stood down from duty on full pay from 1 April 2000. In July 2000, Mr Winter was convicted of two counts of corruption 15 for falsifying records as a public officer and fined $2500. In late 1999, Mr Winter was transferred to Roebourne as the branch 16 manager of the Roebourne Police and Citizens Youth Club. On 9 August 2000, Mr Winter was served with a loss of confidence 17 notice to show cause why he should not be removed from WAPS under s 8 of the Police Act 1892 (WA) (Police Act). In his response to the notice, Mr Winter made various submissions including that around the time of the licence incident occurring he attended a fatal traffic crash and also experienced a number of stressful situations in his personal life. He submitted that he was suffering from a form of depression that affected his judgment. On 24 November 2000, the then Commissioner of Police, 18 Mr Matthews, wrote a memorandum to Mr Winter, advising that he had decided not to remove him from WAPS and Mr Winter returned to his duties at Roebourne. Whilst acknowledging that Mr Winter's conduct and the consequences of it posed a very difficult situation, the Commissioner Page 5 [2007] WASAT 55 accepted many of the points that Mr Winter made in his response to the show cause notice and the Commissioner took the view that the offences were out of character and "a result of your depressive illness at the time". The Commissioner had also read the sentencing notes from the District Court and commented that they had been helpful in confirming Mr Winter's genuine remorse. Other factors that the Commissioner considered to be in Mr Winter's favour were: • Mr Winter's conduct was "at the low end of the scale of criminality"; • Mr Winter derived no financial benefit from his conduct; and • any benefit Mr Winter obtained had been removed. With respect to a letter from Mr Winter's psychiatrist the 19 Commissioner commented that the psychiatrist had "expressed his opinion that your current supervisory officer would provide additional support and the need for him to monitor your performance so any depressive symptoms can be dealt with immediately". The Commissioner was concerned that the trust he was placing in 20 Mr Winter was not misplaced and in granting Mr Winter an opportunity to redeem himself, commented in the last paragraph of his memorandum "you can consider yourself fortunate not to have been dismissed from the Service. You may be assured that I will not be as forgiving as I have been on this occasion should you engage in any future misconduct". The email incident In April 2001, Mr Winter injured his back and hip in an altercation 21 with an offender. He received treatment for those injuries. In January 2002, Mr Winter was transferred to Kalgoorlie where his 22 duties included attending sudden death and murder scenes and arresting offenders. He remained on light duties whilst attempting to recover from his injuries. On 12 June 2002, Mr Winter commenced on long term sick leave. On 4 October 2002, Mr Winter underwent surgery on his injured hip. In November, he began seeing a registered psychologist in Kalgoorlie. On 25 August 2002, Mr Winter sent an email to the general central 23 address of the Health and Welfare Branch of WAPS (Health and Welfare) Page 6 [2007] WASAT 55 in relation to the payment of his medical accounts (the email incident). In his email, Mr Winter was critical of Health and Welfare stating: "I have found health services to be an aberration in providing support for its members when sick/injured as a direct result of doing my job. Your department is and has been so concerned about money and financial issues that it appears to have lost sight of caring for its members … money, money, money, how can health services not pay for something. JESUS you wouldn't wish to care for the staff that are sick … thinking about this makes me physically ill in the stomach, might I suggest you all lift your game, show a bit more concern for people, you have succeeded in making me feel unwanted and simply a dispensable number, because health and welfare is a load of shit It should be Tight arse bastards incorporated." Senior Sergeant Bryan, the senior welfare officer in charge of 24 welfare at Health and Welfare, brought the matter to the attention of the staff officer to the Deputy Commissioner of Operations and consequently Inspector Bond spoke to Mr Winter about the email. Mr Winter told Inspector Bond that he was under the care of a medical specialist. Inspector Bond decided not to informally counsel Mr Winter at that time, although Mr Winter disputes this, saying that his conversation with Inspector Bond constituted "informal counselling". There was no notation of informal counselling made on Mr Winter's personal file. Post Traumatic Stress disorder diagnosis On 7 October 2002 Health and Welfare received notice from 25 Mr Winter that he suffers from post traumatic stress disorder (PTSD) and that it is a work related injury. On 15 November 2002 Health and Welfare accepted Mr Winter's PTSD as a work related injury. In a report dated 9 December 2002, Dr Twain Russell stated Mr Winter "has symptoms that meet the criteria for depression, anxiety disorder and post-traumatic stress disorder". The McAlpine email On 16 January 2003 Senior Sergeant McAlpine, the officer in charge 26 of the Kalgoorlie Police Station where Mr Winter was stationed, sent an email to Senior Sergeant Bryan (the McAlpine email) advising: "I had one of my good Sergt's conduct a home visit on Sen Const Winter here in Kalgoorlie yesterday. The sergt seemed to Page 7 [2007] WASAT 55 think it was a very good theatrical display by Mr Winter … Mr Winter seems to think that he will personally assess what positions are available down here for him to fill on rehab, and if they don't appease him he simply won't be coming back. The long and the short of it Wayne is that I don't want the boofhead back here at all. I believe his overall attitude towards to [sic] Station is poor and if he does come back to work will continue and as such drag down the rest of the staff. Morale here at the moment is at an all time high, sick leave is down and things ticking along. If push comes to shove I would rather see Mr Winter offered something in Perth that would allow us to recruit against him and he could continue on his merry way studying and taking sick leave until he qualifies at whatever he is studying and moves on." The Kalgoorlie incident In January 2003 Mr Winter received a call from Health and Welfare, 27 querying him about studying whilst on sick leave. On 23 January 2003, whilst still on sick leave, Mr Winter attended 28 the Kalgoorlie Police Station. He says that he went there with the intention of speaking to Senior Sergeant McAlpine regarding his enquiries about Mr Winter studying whilst on sick leave. He says that when he got there, he felt his head spinning and he became nauseous and angry. He then spoke with Acting Senior Sergeant Norbury, who he classed as a friend as they had been at the police academy together, "because he needed to talk to a mate". Mr Winter and Mr Norbury were alone in Mr Norbury's office. Mr Winter was in a distressed and agitated state. Mr Norbury describes what happened in a Major Incident Briefing Note that he completed that evening and in a memorandum completed the next day. Mr Winter told Mr Norbury that he resented Senior Sergeant McAlpine making enquiries about him studying at university whilst on extended sick leave. He advised Mr Norbury that "he came into the station to 'throttle and kill'" Senior Sergeant McAlpine and Mr Winter made a throttling motion with his hands. Mr Norbury says that Mr Winter continued to pace his office "acting incoherent, rubbing his temples and appeared to be trying not to cry. He spoke in a loud voice". Mr Norbury says Mr Winter "went on to describe how he wanted to come back to work but had visions of wanting to kill police officers in the station in a sniper style shooting as a result of suffering from PTSD" (the Kalgoorlie incident). Mr Norbury escorted Mr Winter from the police station and advised him to immediately see his psychologist, which Page 8 [2007] WASAT 55 Mr Winter did. Mr Norbury's view was that Mr Winter's "actions at the time was that it was not genuine". On 27 January 2003, Inspector Maslin and Inspector Cope attended 29 Mr Winter's home to advise him that he was under investigation for the Kalgoorlie incident. On 28 January 2003, Mr Devine, who was Mr Winter's Kalgoorlie 30 psychologist, reported to Health and Welfare that he had concerns that Mr Winter may be "over embellishing" some of his symptoms. We do not have a report from Mr Devine regarding Mr Winter's attendance on 23 January 2003 immediately after the Kalgoorlie incident. Health and Welfare requested that Mr Winter attend a medical 31 appointment on 4 March 2003 with Dr Proud, a consultant psychiatrist. Dr Proud's report of 7 March 2003 stated that Mr Winter was suffering from PTSD and was unfit for work. Dr Proud suggested that Mr Winter's capacity to work be reassessed in six months time. A later report provided by psychiatrist Dr Fellows-Smith, dated 14 May 2003, agreed with the diagnosis of PTSD, recommended that Mr Winter have weekly psychotherapy for 12 months and that he continue with treatment for six months before considering his ongoing rehabilitation. He concluded that "I do not believe that there is a likelihood that he will be able to return to active duties at the Police Service due to his psychological condition". On 15 April 2003, Health and Welfare advised that Mr Winter's 32 medical condition had improved sufficiently for him to be interviewed about the Kalgoorlie incident. On 13 May 2003, Inspector Maslin interviewed Mr Winter with Inspector Cope also in attendance. Inspector Maslin asked questions about the email incident, the allegation that Mr Winter was studying whilst on long term sick leave and the Kalgoorlie incident. Inspector Maslin noted that Mr Winter was co-operating and did not show any signs of distress during the interview. The s 8 process Following the interview, Inspector Maslin submitted a loss of 33 confidence nomination report to Superintendent Tovey in relation to Mr Winter and stated that, although he viewed Mr Winter's conduct as improper, he did not recommend that Mr Winter be removed from office. Superintendent Tovey forwarded the loss of confidence report to the 34 Commander, North-Eastern Region for the attention of Assistant Commissioner Lienert, the Assistant Commissioner (Professional Page 9 [2007] WASAT 55 Standards). Superintendent Tovey sent the report to the Assistant Commissioner with a covering memo recommending that Mr Winter's file be sent to Health and Welfare "for consideration to progressing a (s 8, Police Act) discharge on medical grounds". Assistant Commissioner Lienert appointed then Superintendent Gascoigne as a review officer in relation to the matter and Mr Gascoigne conducted an investigation. Following this investigation, Mr Gascoigne sent a memorandum, dated 10 June 2003, to the Commissioner and recommended that it was open to the Commissioner not to have confidence in Mr Winter and to issue him a loss of confidence notice pursuant to s 8 of the Police Act (the s 8 process). On 26 June 2003 Assistant Commissioner Lienert advised the 35 Commissioner that in his view it was within the Commissioner's managerial discretion to lose confidence in Mr Winter and he forwarded relevant material to the Commissioner, including the summary of the investigation conducted by Mr Gascoigne. On 26 June 2003, the Commissioner issued Mr Winter with a notice 36 of intention to remove in which he indicated that unless Mr Winter could persuade him otherwise he intended to recommend to the Minister for Police that she approve the removal of Mr Winter from WAPS (the s 8 notice). The Commissioner advised that he issued the s 8 notice because he was not satisfied that Mr Winter's conduct and integrity were of a standard expected and required of a member of WAPS and that it is necessary to maintain public confidence in WAPS. Accordingly he had lost confidence in Mr Winter's suitability to remain as a member of WAPS. In accordance with the Police Act, Mr Winter had 21 days to respond 37 to the s 8 notice and show cause why he should not be removed from WAPS. The reasons cited by the Commissioner for the loss of confidence 38 included the email incident (the Commissioner referred to the email as containing "offensive and derogatory language"), the Kalgoorlie incident and the licence incident, and in particular that Mr Winter's conduct with respect to the email incident and the Kalgoorlie incident indicated that he had failed to abide by the conditions set by the Commissioner in his memo of 23 November 2000 when he reinstated Mr Winter to full time duties after the convictions with respect to the licence incident. Page 10 [2007] WASAT 55 Health and Welfare sought a further report from Dr Proud. This 39 report, dated 4 July 2003, states that Mr Winter was still too unwell to return to work (that to do so may result in Mr Winter becoming "potentially dangerously violent" or could precipitate a "homicidal rage") and he suggested that the situation be reviewed in six months time. On 4 July and 15 August 2003 Mr Winter attended Dr Fellows-Smith. On 7 August 2003, Mr Devine provided a further report in which he 40 stated that Mr Winter was still not fit to return to operational police duties and that his health had deteriorated due to the s 8 notice. On 21 August 2003, Mr Winter responded to the s 8 notice by 41 requesting that the Commissioner reconsider removing him for loss of confidence and instead allow him to retire on medical grounds. Mr Winter attached 16 medical reports relating to his physical and mental condition. Mr Winter had previously (on 17 July 2003) advised Health and Welfare that he had received the s 8 notice and wished to be medically retired. The Commissioner declined to rescind the notice and on 42 19 September 2003 he recommended to the Minister for Police and Emergency Services that she remove Mr Winter from office, which she did on 24 October 2003. On 25 September 2003, at Health and Welfare's request, Mr Winter 43 attended an appointment with Dr Komeda, a consultant psychiatrist who issued a report, dated 22 October 2003. On 24 October 2003 the Commissioner dismissed Mr Winter from 44 WAPS. This resulted in WAPS no longer paying Mr Winter's medical expenses nor providing him support through Health and Welfare. Although Dr Komeda's report is dated 22 October 2003, it was addressed to Health and Welfare and it would appear that the Commissioner had not yet seen Dr Komeda's report when he dismissed Mr Winter. WAIRC appeal In December 2003, Mr Winter lodged an appeal against his dismissal 45 with the Western Australian Industrial Relations Commission (WAIRC appeal). The parties attended a conciliation conference at the WAIRC on 46 30 December 2003, at which Mr Winter, through his solicitor, again raised the prospect of retirement on medical grounds. It was agreed at the Page 11 [2007] WASAT 55 conciliation conference that Mr Winter's then solicitor, Ms Adams, would provide two further medical reports to the Commissioner's solicitor who would forward them to the Commissioner for him to reconsider his decision to recommend Mr Winter's dismissal and to allow Mr Winter to retire on medical grounds. Two further medical reports were subsequently presented to the 47 Commissioner for his consideration. The first was from Dr Fellows-Smith and dated 9 December 2003. In that report Dr Fellows-Smith stated that due to the severity of Mr Winter's psychiatric symptoms he would not be able to return to WAPS. The report requested by Health and Welfare from Dr Komeda was the second report. Dr Komeda stated that Mr Winter's PTSD precluded him from returning to operational police duties and that his condition was likely to continue for the foreseeable future. On 12 January 2004 the Commissioner advised Mr Winter that he 48 agreed to Mr Winter's retirement on medical grounds and accordingly, on 14 January 2004, Mr Winter discontinued the WAIRC appeal. Complaint to the Commissioner for Equal Opportunity On 18 March 2004, Mr Winter lodged his complaint of impairment 49 discrimination in the area of employment against the Commissioner with the Commissioner for Equal Opportunity (EOC). The EOC investigated and attempted to conciliate Mr Winter's complaint and by letter dated 21 December 2004 advised Mr Winter that she was dismissing the complaint as lacking in substance in accordance with s 89 of the Equal Opportunity Act 1984 (WA)(the Act). Mr Winter then wrote to the EOC advising her that he wanted her to refer his complaint to this Tribunal under s 90 of the Act, which she did on 29 March 2005. Additional allegations On 20 September 2005, Mr Winter's counsel filed a Further 50 Amended Statement of Issues, Facts and Contentions which included allegations of unlawful discrimination by various police officers beginning in 2000. In particular Mr Winter alleged: • the McAlpine email was "derogatory and offensive and demonstrated a patent disbelief in the veracity of Mr Winter's medical condition"; • that Mr Winter was treated less favourably by Senior Sergeant Bryan reporting him for the email incident and Page 12 [2007] WASAT 55 particularly as Senior Sergeant Bryan did not take similar action in relation to the McAlpine email; • a "continuing pattern of discrimination" by Senior Sergeant McAlpine evidenced by the "curt and cavalier manner" in which Mr Winter was treated by Inspectors Maslin and Cope after the Kalgoorlie incident; • that Ms Martinovich discriminated against him on 6 June 2003 when she acted in an "uncompassionate and hectoring manner towards Mr Winter by emphatically advising him that his pay would be cancelled and he might face disciplinary charges if he were to remain on sick leave and refuse to return to work and … could find any doctor to say he would be capable of working even one morning a week and he refused"; • that Mr Winter was treated less favourably by Ms Martinovich because of the negative perception in Health and Welfare perpetuated by the McAlpine email; and • that Senior Sergeant Turner demeaned Mr Winter in 2000 using "standover tactics, intimidation and threats"; that he discriminated against Mr Winter by not managing and monitoring him properly after his return to work after the licence incident; and that he "blackmailed" Mr Winter by telling him that if he did not claim overtime then he would receive favourable work performance reports from Senior Sergeant Turner. The Commissioner objected to the inclusion of these allegations in 51 these proceedings on the grounds that the Tribunal did not have jurisdiction to hear them as they were either lodged with the EOC out of time and she had declined to accept them under s 83 of the Act, or they were not included in Mr Winter's original complaint lodged with the EOC. The Tribunal heard arguments from counsel for both parties and on 52 31 March 2006 Senior Member Ms Toohey published her decision and reasons (Winter and Commissioner of Police [2006] WASAT 87). Ms Toohey held that the Tribunal did not have jurisdiction to hear those allegations as the Tribunal could not review the EOC's decision to refuse to accept the allegations that were out of time. The Tribunal also had no jurisdiction to hear those allegations not included in the original complaint Page 13 [2007] WASAT 55 lodged with the EOC. Ms Toohey therefore ordered Mr Winter to file a further amended Statement of Issues, Facts and Contentions deleting those allegations. Ms Toohey also held that the Tribunal could hear evidence of any 53 matter it considers relevant to the inquiry before it, including evidence of the circumstances surrounding the allegations outside of the Tribunal's jurisdiction, but that those matters could not "ground a finding of unlawful discrimination within the meaning of the Act" ([52]). On this basis we permitted Mr Winter to put evidence before the 54 Tribunal of those additional allegations and the circumstances surrounding them, providing the evidence was relevant to our inquiry. Mr Winter claimed the evidence he sought to lead was relevant to our inquiry as it would establish a "chain of events" that ultimately led to the unlawful discrimination complained of. Ms Roche, Mr Winter's counsel, argued that Senior Sergeant Turner's alleged conduct towards Mr Winter in Roebourne was ultimately responsible for the deterioration in Mr Winter's condition which then led to the conduct for which he was dismissed and that therefore Senior Sergeant Turner's alleged conduct in 2000 is directly related to the unlawful discrimination alleged in the Further Amended Statement of Issues, Facts and Contentions before this Tribunal. We are of the view that most of the evidence put before us by 55 Mr Winter is irrelevant to the inquiry before us and in particular to the allegations properly before us. A substantial amount of that evidence served to divert much of the hearing away from the issues before us. At most, that evidence went to the development of Mr Winter's psychiatric condition and why it was work related. However, from as early as November 2002, Health and Welfare and the Commissioner had accepted that Mr Winter had an impairment that arose from his work and it was never in issue in these proceedings. The hearing We heard this matter over four days on 18 – 21 September 2006. We 56 had before us the parties' amended Statements of Issues, Facts and Contentions, and several large volumes of documents from the Commissioner and two bundles from Mr Winter. A number of documents were tabled at the hearing. Counsel for each of the parties made oral opening submissions and filed written closing and responsive submissions. Page 14 [2007] WASAT 55 Mr Winter filed a witness statement and gave oral evidence and was 57 cross-examined. Mr Winter summonsed a significant number of witnesses and we heard from all but four of them as follows: Mr Gascoigne, Ms Adams, Senior Sergeant Collidge, Senior Sergeant Turner, Inspector Maslin, Superintendent Cope, Inspector Bond, Superintendent Matson, Superintendent Tovey and Mr Norbury. Mr Winter did not file witness statements for those witnesses as he claimed they were "reluctant" witnesses. Although they were summonsed by the applicant, Ms Volleman, Mr Groenveld, Commander Gronow and Superintendent Porter were not called. The Commissioner called the following witnesses, having previously 58 filed and served witness statements for each of them which constituted their evidence in chief: Senior Sergeant McAlpine, Senior Sergeant Bryan, Ms Martinovich, Assistant Commissioner Lienert and Mr Sefton. We reserved our decision on 3 November 2006 after receiving the 59 written responsive submissions. Unlawful impairment discrimination claim From his Further Amended Statement of Issues, Facts and 60 Contentions, oral and written submissions and other documents, we consider that Mr Winter alleges that the Commissioner and some of his employees unlawfully discriminated against him on the grounds of his impairment, contrary to s 66(B)(2)(b) and (c) of the Act. Mr Winter contends that a chain of events, beginning in 2000 led to this discrimination, which was ultimately manifested in the following ways: 1) by the Commissioner issuing the s 8 notice and ultimately dismissing Mr Winter three months before the date that Dr Proud had recommended Mr Winter be medically reviewed and without waiting for Dr Komeda's report which had been requested by Health and Welfare (or alternatively by having that report and ignoring it); and 2) by the Commissioner retiring Mr Winter on medical grounds because he realised the s 8 notice and the dismissal of Mr Winter would not be sustainable in the WAIRC appeal and he wanted to get rid of Mr Winter by any means rather than rehabilitate him back into active service. Mr Winter says that by issuing the s 8 notice and subsequently 61 dismissing him and then by ultimately retiring him on medical grounds, Page 15 [2007] WASAT 55 the Commissioner deprived him of benefits associated with his employment, namely payment of his medical expenses and the support and services of Health and Welfare. Mr Winter alleges that because of the alleged unlawful discriminatory conduct, including not providing him with all the documents on which the Commissioner relied when deciding to issue the s 8 notice, Mr Winter believed he had no choice but to accept medical retirement at a time when his impairment resulted in him lacking the judgment or cognitive capacity to make such an important decision to request or accept medical retirement. In his written submissions Mr Winter also claims that "the insidious 62 actions of other Police Officers were also instrumental in the ultimate discriminatory conduct perpetrated against the Applicant; most notably the rumour mill querying his studying and casting aspersions on the veracity of his medical condition and most damning the email sent by McAlpine to Health and Welfare that showed an entire disregard for fact and relished the passing on of hearsay and vitriol against the Applicant to the very department that were meant to be managing his rehabilitation". [101] Mr Winter seeks damages for undue exacerbated stress; loss of 63 employment; the Commissioner depriving him of a chance of rehabilitation; undue pain and suffering and loss of benefit of medical treatment. At this point, Mr Winter has not quantified nor particularised his loss. He also seeks the costs of the witness Mr Gascoigne at $100 per day. The Commissioner accepts that Mr Winter was impaired within the 64 meaning of s 4 of the Act but denies that he or any of his officers unlawfully discriminated against Mr Winter on the grounds of his impairment or that he treated Mr Winter in any different way than he would have treated another officer, without Mr Winter's impairment, in the same circumstances. Rather, the Commissioner asserts that he was entitled, because of Mr Winter's cumulative conduct, to issue the s 8 notice and to dismiss him and that the prospect of medical retirement was suggested by Mr Winter and agreed to as part of the settlement of the WAIRC appeal. The Commissioner also asserts that Mr Winter has not demonstrated that he lacked the necessary ability to make the decision to suggest and accept medical retirement but rather that he did so competently with legal advice and relevant support and assistance. Page 16 [2007] WASAT 55 Relevant legislation Section 66A of the Act sets out what constitutes unlawful 65 discrimination on the grounds of impairment: "66A. Discrimination on ground of impairment (1) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if, on the ground of (cid:190) (a) the impairment of the aggrieved person; (b) a characteristic that appertains generally to persons having the same impairment as the aggrieved person; (c) a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or (d) a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment. (1a) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if, on the ground of (cid:190) (a) the impairment of; Page 17 [2007] WASAT 55 (b) a characteristic that appertains generally to persons having the same impairment as; or (c) a characteristic that is generally imputed to persons having the same impairment as, any relative or associate of the aggrieved person, the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment. (2) For the purposes of subsection (1) or (1a), circumstances in which a person treats or would treat another person who has, or has a relative or associate who has, an impairment are not materially different by reason of the fact that different accommodations or services may be required by the person who has an impairment. (3) For the purposes of this Act, a person (in this subsection referred to as the 'discriminator') discriminates against another person (in this subsection referred to as the 'aggrieved person') on the ground of impairment if the discriminator requires the aggrieved person to comply with a (cid:190) requirement or condition (a) with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply." Mr Winter relies on the following subsections of s 66B to ground his 66 allegations of unlawful discrimination: "66B. Discrimination against applicants and employees Page 18 [2007] WASAT 55 (2) It is unlawful for an employer to discriminate against an employee on the ground of the (cid:190) employee's impairment … (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; (c) by dismissing the employee; or" Section 5 of the Act provides: 67 "5. Act done for 2 or more reasons A reference in Part … IVA [which deals with discrimination on the ground of impairment] … to the doing of an act on the ground of [impairment] includes a reference to the doing of an act on the ground of 2 or more matters that include [impairment], whether or not the [impairment] is the dominant or substantial reason for the doing of the act." Section 8 of the Police Act is also relevant: 68 "8. Commissioned and non-commissioned officers, removal of (1) The Governor may, from time to time as he shall see fit, remove any commissioned officer of police, and upon any vacancy for a commissioned officer, by death, removal, disability, or otherwise, the Governor may appoint some other fit person to fill the same; and the Commissioner of Police may, from time to time, as he shall think fit, suspend and, subject to the approval of the Minister, remove any non-commissioned officer or constable; and in case of any vacancy in the Police Force by reason of the death, removal, disability or otherwise of any non-commissioned Page 19 [2007] WASAT 55 officer or constable, the Commissioner of Police may appoint another person to fill such vacancy. (2) The powers of removal referred to in subsection (1) can be exercised only if the Commissioner of Police has complied with section 33L and that removal action has not been revoked under section 33N(1)." What must Mr Winter prove? Mr Winter must prove, on the balance of probabilities, that the 69 Commissioner and some of his officers treated him less favourably than they would have treated an officer in the same, or not materially different, circumstances as Mr Winter but without his impairment. The witnesses As indicated Mr Winter called a substantial number of witnesses by 70 summons. The respondent elected not to call these witnesses as the respondent is entitled to do. There was no real indication to us that many of these witnesses were, as Mr Winter's counsel put it, "reluctant" and that they would not have provided witness statements or attended the hearing if requested to do so by Mr Winter. We comment on each of the witnesses called. Mr Winter We are of the view that Mr Winter was not on the whole a credible 71 witness. His evidence was sometimes inconsistent and was self-serving where it suited him to be. For example, he admitted to subsequently adding notes to some of the written evidence that he had contended constituted his contemporaneous notes (T:16 19.9.06). Much of his evidence was not corroborated by the documents or by other witnesses and was directly challenged by other evidence. Mr Winter gave substantial evidence that he did not make an 72 informed decision when he decided to accept medical retirement. He says he was suicidal and had no judgment; the evidence indicates otherwise. The weight of documentary and oral evidence was that Mr Winter was cogent and that he had the intellectual and cognitive ability to make that decision. Mr Winter says Ms Martinovich bullied him and that he had no other option but to accept medical retirement. But in written advice on 18 July 2003 his solicitor advised him his options including that he could resign without any blemish on his reputation; Ms Martinovich also says Page 20 [2007] WASAT 55 she explained all of his options and believed he understood them. When asked by his counsel if he had "entertained the notion of retirement on medical grounds prior to the s 8 notice", Mr Winter responded: "No". He "honestly didn't know what was involved in medical retirement" (T:74, 75 18.9.06). He indicates that after receiving the s 8 notice his solicitor mentioned or suggested medical retirement. The evidence before us is that medical retirement was discussed with him by officers of Health and Welfare as early as June 2002, a year before the s 8 notice. Mr Winter says that he did not first raise medical retirement. The evidence clearly indicates otherwise. The documentary evidence shows that Mr Winter thought medical retirement was a reasonable outcome. He admitted this in his oral evidence (T:76 18.9.06). Yet he purports to deny that he bears any responsibility for deciding to seek or accept medical retirement. Mr Winter accepted that a police officer must have the highest 73 standards and be above suspicion and reproach yet his actions show that he did not consider that this applied to him. Mr Winter made allegations without detail or any substantiation. He 74 believes that for many years a number of members of WAPS, particularly those in authority above him, were conspiring to make his life difficult or to get rid of him from WAPS. There is no evidence that this is true. Mr Winter did not understand the difference between regret and 75 remorse with respect to the licence incident (T:83 18.9.06). He clearly regretted the impact the incident has had on his career and his life; in particular, he made comments with respect to having to declare it when filling out insurance forms. But at no point did he accept any responsibility for the licence incident and he saw it as a mere error in judgment caused by depression; an "indiscretion" at most (12.8.03 response to s 8 notice). This was despite the fact that he had concealed the incident for over 12 months because he "forgot about it" (T:81 18.9.06). He feels he was dealt with unfairly by being prosecuted for corruption over the licence incident. Mr Winter gave evidence that Assistant Commissioner Lienert had 76 threatened that he was going to make an example of him over the licence incident (T:84 18.9.06). Assistant Commissioner Lienert denies this allegation. Mr Winter displayed a propensity to distort aspects of evidence so 77 that otherwise unfavourable evidence supported his position and to exaggerate or inaccurately state facts so as to support his position. For Page 21 [2007] WASAT 55 example, with respect to the memorandum he received from the Commissioner reinstating him after the licence incident, he refers to the Commissioner describing his conduct as being at the "lowest end". It is not semantics that this down played the Commissioner's view of the offence [T19:19.9.06]. He said that he had received a Commissioner's commendation when in fact it was a letter of commendation from the Acting Chief Superintendent of Traffic. He was often selective when referring to documents and would conveniently not refer to other relevant passages from documents, for example, when referring to the Commissioner's memorandum of 23 November 2000, reinstating him after the convictions for the licence incident, Mr Winter did not refer to the last paragraph which essentially was the pivotal part of the letter. He confused the seriousness of the offence and the then Commissioner's gesture of compassion towards him by reinstating him. Mr Winter concluded from the outcome that the licence incident was not serious; rather it was a serious criminal offence, but both the District Court and the Commissioner showed compassion towards him because of his impairment. As demonstrated in Purvis v State of New South Wales (Department of Education and Training)(2003) 217 CLR 92, this compassion should not diminish the seriousness of the criminal offence. There was serious conflict with respect to Mr Winter and 78 Senior Sergeant Turner's evidence; for example, Mr Winter says Senior Sergeant Turner blackmailed him; Senior Sergeant Turner says they met and discussed his role at PCYC and what was required of a branch manager. There was evidence that Mr Winter did not go to management 79 committee meetings of the Roebourne PCYC. He says he did not because he did not like Senior Sergeant Turner. Mr Winter claims that Senior Sergeant Turner was blocking transfers but cannot provide evidence to support this. He says he was too scared to raise the issue of blackmail (T:88 18.9.06). He did not go to his union with his complaint. He disagrees with Senior Sergeant Turner that there was a series of meetings. He says he could do no more because of his contempt for Senior Sergeant Turner. His attitude towards PCYC meetings displayed a petulant approach. Mr Winter felt that any comments by Senior Sergeant Turner about his work ethic were because Senior Sergeant Turner did not like Mr Winter. Mr Winter failed to see that there were performance issues with his conduct in Roebourne. He may well have fallen out with Senior Sergeant Turner who was his officer in charge because he refused to meet the expected standards. Page 22 [2007] WASAT 55 Mr Winter was very evasive about whether or not he had contacted 80 Health and Welfare prior to sending the email that constituted the email incident. He says he asked the surgeon and physiotherapist to send their accounts to Health and Welfare. However, Mr Winter wanted a gym membership paid for because the gymnasium was the only place in Kalgoorlie where he could get the hydrotherapy that he needed. Mr Winter could not point to any evidence of a request for a gym membership. Mr Winter gave evidence that when Inspector Bond spoke to him 81 about the email incident he made an assumption that he had been "informally counselled". Inspector Bond denies this. The documentary evidence shows that he was not informally counselled. There is no record of informal counselling on Mr Winter's file; there would be if he had been informally counselled. With respect to the licence incident and the email incident Mr Winter 82 claims that he had been dealt with and the Commissioner could not then take that into account in issuing the s 8 notice. Mr Winter thought it "silly" that the email incident could form the basis of later discipline (T:98 18.9.06). Mr Winter fails to see that the Commissioner may take into account, and in fact is duty bound in the public interest to take into account, a pattern of inappropriate conduct over a period of years. With respect to the Kalgoorlie incident, Mr Winter's evidence was 83 inconsistent with the record of his interview with Inspectors Maslin and Cope. Mr Winter claims that he does not know what he said when he went to the Kalgoorlie station on 23 January 2003. Mr Winter does not see his conduct on that day as particularly serious. Mr Winter saw the Kalgoorlie incident as "I can't understand why one would lose your job for seeking help from a mate…. Mateship is one of the core values of being a police officer … because I didn't believe I did anything wrong", although he ultimately concedes that what occurred constituted "improper conduct" (T:91 18.9.06). Mr Winter maintained that he did not want to go back to the 84 Kalgoorlie police station after the Kalgoorlie incident because he was hated by his officer in charge, Senior Sergeant McAlpine and that this was demonstrated by the McAlpine email. However, Mr Winter did not see the McAlpine email until after the WAIRC appeal was concluded a year or more after the Kalgoorlie incident. It cannot therefore have influenced his attitude towards Senior Sergeant McAlpine or his return to the Kalgoorlie station in February 2003. He then says (T:68, 18.9.06) that he liked Page 23 [2007] WASAT 55 Senior Sergeant McAlpine at that point in time. Senior Sergeant McAlpine's evidence is that they had very little contact. Mr Winter displays a propensity to deny responsibility for his 85 conduct and he believes that others are responsible for the consequences that occur to him, because of his own conduct. There was a substantial amount of evidence that Mr Winter displays 86 a problem with those in authority. There are numerous instances where Mr Winter says "I honestly 87 don't feel I engaged in misconduct" (T:74, 18.9.06) or similar. He says "I firmly believe the police department are trying to get rid of officers on long term sick leave"; but there was no evidence given by any other witness or by any document to this effect. To the contrary, senior police officer witnesses denied that it was the case. There was also a substantial amount of evidence with respect to 88 minor mistakes in Mr Gascoigne's report which bore no relevance to subsequent conclusions by those senior to Mr Gascoigne. However, Mr Winter sought to make much of these two mistakes, including confusing a mistake identified by Ms Adams and one subsequently identified it would seem by Ms Roche. Ultimately, the Tribunal pointed out that the apparent mistake by Mr Gascoigne reflected Mr Norbury's record of the Kalgoorlie incident and was a direct quote from it. We do not accept the bulk of Mr Winter's evidence and where there 89 is any difference between his evidence and that of the numerous other witnesses, we prefer the evidence of the other witnesses. Mr Gascoigne Although Mr Gascoigne was able to clarify issues relating to minor 90 mistakes in his report, his evidence is of marginal value to the Tribunal. We accept that he was an honest witness. We also find that there is no indication that his report was done in the slap dash manner indicated by Ms Roche. We acknowledge that he did the report out of hours on his own time due to his other heavy work commitments. Mr Gascoigne made a judgment call with respect to Mr Winter based on all the evidence that he had before him, including medical reports. He was clear that he would have reached the same conclusions without the two mistakes. Ultimately it is not Mr Gascoigne's report that is important but the Commissioner's decision to issue the s 8 notice. Page 24 [2007] WASAT 55 Mr Gascoigne described processes in WAPS and confirmed that the 91 Commissioner is entitled to look at the entire disciplinary history of an officer when making a decision with respect to a loss of confidence notice. However, Mr Gascoigne's report essentially spoke for itself insofar as it is evidence that is directly relevant to these proceedings. Senior Sergeant Turner Senior Sergeant Turner was also a cogent and honest witness. 92 However, his evidence is largely irrelevant to these proceedings. He explained performance problems that he had with Mr Winter but all of his evidence related to the allegations that the Tribunal previously held could not found an allegation under the Act and we therefore find that evidence not relevant to the proper allegations of discrimination alleged by Mr Winter in these proceedings. However, Senior Sergeant Turner's evidence did assist in identifying inconsistencies in Mr Winter's evidence. Ms Adams Ms Adams was Mr Winter's solicitor with respect to the s 8 notice 93 and initially with respect to this claim. At the time she was solicitor for the Police Union. Ms Adams was an excellent witness; credible and honest. Ms Roche asked her questions regarding whether she advised Mr Winter to delay making a claim for discrimination but that was entirely irrelevant to these proceedings. Ms Adams gave evidence that from her quite extensive experience 94 there is necessarily a special understanding and trust between the Commissioner and his officers and the Commissioner is entitled to consider serving a s 8 notice where he concludes that trust is broken. Ms Adams also gave evidence with respect to which documents were 95 provided with the s 8 notice. Mr Winter alleged that the Commissioner's failure to give him three documents resulted in discriminatory conduct. However, Ms Adams' evidence made it clear (and it was supported by documentary evidence) that Inspector Maslin's report was received by her on 8 August 2003. She noted that Inspector Maslin's report was not on file (T:159, 19.9.06) but she concluded that as she had received it she would have provided it to Mr Winter. On the balance of probabilities we find that Mr Winter would have received that report. Further, Ms Adams confirmed that it is usual practice for the Commissioner not to give copies of documents with the s 8 notice but that an officer or their representative is entitled to inspect documents and that this is consistent with the Page 25 [2007] WASAT 55 memorandum of understanding between the Commissioner and the police union. This is what happened in Mr Winter's case. She also confirmed to the Tribunal that in her view Mr Winter had 96 capacity to give instructions and in particular with respect to the decision regarding medical retirement. Inspector Maslin Inspector Maslin was in the Tribunal's view a genuine and sincere 97 witness who displayed a compassionate attitude towards Mr Winter and other impaired officers. His evidence was relevant only with respect to whether he told Mr Winter to "shut up" at the first meeting after the Kalgoorlie incident; on the basis of Inspector Maslin's evidence and experience and his approach to dealing with fellow officers we find that it would have been highly unlikely that he would have done so. Inspector Collidge Again Inspector Collidge was a good witness, compassionate and 98 honest with a common sense approach. However, his evidence was not relevant to these proceedings. Inspector Collidge was adamant that if an officer is convicted in the District Court they should not in any circumstances be in WAPS. He expressed the view that the community expects that police will have an inherent sense of honesty and high standards to get the job done properly and we accept that this is the case. Inspector Collidge was of the view that any disciplinary conduct 99 would stay on an officer's record and should be considered cumulatively when deciding on the consequences of that conduct. He also stated that if an officer is sick they should not necessarily be disciplined for that conduct and we consider that may have some bearing on whether Mr Winter was treated "less favourably". Inspector Cope Inspector Cope's evidence was relevant only with respect to whether 100 or not he said "shut up" at the first interview. He denies the allegation and for the same reasons that we accept Inspector Maslin's evidence regarding this, we accept Inspector Cope's evidence. Inspector Bond Inspector Bond's evidence was that if he had given Mr Winter 101 informal counselling regarding the email incident, it would have been put Page 26 [2007] WASAT 55 on Mr Winter's record. It is not on Mr Winter's record and we therefore accept Inspector Bond's evidence that he did not informally counsel Mr Winter. Superintendent Matson Superintendent Matson's evidence was irrelevant to these 102 proceedings. Superintendent Tovey Superintendent Tovey was a good, credible witness whose evidence 103 was consistent throughout. He gave some evidence that Senior Sergeant McAlpine could be explosive in nature. He also gave evidence that officers are not usually disciplined if they are sick and that a high degree of care is required in dealing with officers' careers; we agree that great care should be taken when an officer's future is at stake. Mr Norbury Mr Norbury was a genuine and credible witness and we accept his 104 evidence. We also accept that his Major Incident Briefing Note was the document he completed first in time after the Kalgoorlie incident and we accept it as the primary source of what occurred on 23 January 2003. We accept that Mr Norbury did everything he could at the time to minimise the potential consequences to Mr Winter of his conduct, but he acted properly in reporting Mr Winter's conduct. We note his interpretation that he felt that Mr Winter had "put on a bit of an act". Senior Sergeant McAlpine Senior Sergeant McAlpine was called by the respondent. He was 105 subjected to persistent cross-examination, and although he sometimes seemed a bit confused and was occasionally inconsistent, we accept the general tenor of his evidence. Senior Sergeant McAlpine testified that Mr Winter went on long term sick leave soon after he started at Kalgoorlie and that they therefore had little to do with each other. He said that after Mr Winter went on sick leave he had no contact with Senior Sergeant McAlpine, as officer in charge of the Kalgoorlie station, nor did Mr Winter attend the station other than on the day of the Kalgoorlie incident. Senior Sergeant McAlpine gave evidence about sending the 106 McAlpine email, which we consider was inappropriately worded and perhaps indicative of his "old fashioned" approach to managing a police Page 27 [2007] WASAT 55 station. He consistently and repeatedly expressed his motivation for sending that email as being because be wanted to free up Mr Winter's position by seeking to have him transferred to Perth where he believed Mr Winter could be better managed by Health and Welfare and so that he could replace him with an active officer to assist with the heavy and demanding workload at Kalgoorlie. But ultimately this and much of Senior Sergeant McAlpine's evidence in cross-examination was not relevant to establishing that the allegations properly before us constituted conduct that amounted to unlawful discrimination on the ground of impairment. Senior Sergeant Bryan We accept Senior Sergeant Bryan's evidence as to process in Health 107 and Welfare and that the attitude of staff in the division towards Mr Winter was not affected by the McAlpine email. Ms Martinovich Ms Martinovich is a clinical psychologist with Health and Welfare. 108 She was a reliable witness and we accept her evidence. She gave evidence that she met with Mr Winter on four occasions between December 2002 and August 2003. Ms Martinovich gave evidence that on at least two occasions Mr Winter advised Health and Welfare that he wished to be medically retired. Ms Martinovich met with Mr Winter on 6 June 2003 when they discussed the options available to Mr Winter. She was unshaken in rigorous cross-examination with respect to the June 2003 meeting with Mr Winter and we accept that her conduct at that meeting was entirely appropriate, in that she explained to Mr Winter all of his options. It is proper that a trained psychologist at Health and Welfare take an officer who has been on long-term sick leave through their options at the point that Ms Martinovich did. We accept that she put all possible scenarios to Mr Winter and that he may well have interpreted her explanations to him as being an attack on his credibility. However, that is Mr Winter's perception and not how we accept Ms Martinovich had conveyed the information to him. Assistant Commissioner Lienert Assistant Commissioner Lienert was a concise and clear witness and 109 we accept his evidence that he would not, and did not, have the conversation with Mr Winter as alleged by Mr Winter. Page 28 [2007] WASAT 55 Mr Sefton Mr Sefton, a legal officer with the State Solicitors Office who was 110 the Commissioner's solicitor for the WAIRC appeal, gave useful evidence regarding those proceedings and in particular that he forwarded the reports by Dr Proud and Dr Komeda to the Commissioner to assist the Commissioner to reconsider his decision to dismiss Mr Winter and to allow Mr Winter to retire on medical grounds. We accept that Mr Sefton acted entirely reasonably in those proceedings and that he advised his client as he says he did and that the Commissioner acted upon that advice with Mr Sefton's assistance. Relevant legal principles Mr Winter bears the onus of proof and must prove his case on the 111 balance of probabilities (Dowling v Bowie (1952) 86 CLR 136; for an example see Williams and Commissioner of Police [2005] WASAT 349 at [34]). It is not necessary for Mr Winter to prove that the Commissioner or 112 his officers intended to discriminate against him (Ghockson v Commissioner of Police (Unreported, Equal Opportunity Tribunal; No 92798; 29 November 1995) and Purvis). It is also not necessary for Mr Winter's impairment to be the sole or 113 even the dominant or substantial ground for the relevant act in order for unlawful discrimination to be proved; it is adequate if the impairment is one of the grounds: see s 5 of the Act. However, the act which amounts to the discrimination must be 114 deliberate; that is, advertent and done with the knowledge of the impairment said to be the ground on which the discriminatory act is performed (Jamal v Secretary, Department of Health & Anor (1988) 14 NSWLR 252 at 265 per Samuels JA). For a finding of unlawful discrimination to be made out it is 115 necessary to establish a causal connection between the ground of discrimination alleged and the decision or act complained about (Purvis). The Act must be construed as a whole with regard had to its 116 objectives (Purvis). The expression "less favourably" in s 66A is to be given its ordinary 117 meaning. It calls for the Tribunal to apply its judgment to the facts found Page 29 [2007] WASAT 55 proved in the particular case: Ghockson v Commissioner of Police at 78911; Williams and Commissioner of Police [38]. Implicit in the notion of the words "less favourably" is the necessity 118 to establish a comparator; for the Tribunal to examine two situations or sets of circumstances, the actual and the hypothesised, so that it can determine by a comparison whether the treatment in the former is "less favourable" than in the latter (Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 per Mahoney JA). The comparator Ms Roche, on behalf of Mr Winter submits that: 119 "It is not possible to conceptualise a suitable comparator group. If, for example, the Tribunal was to ask itself how the Police Service would have treated a person without the applicant's impairment engaging in the same conduct and whether the applicant's treatment was less favourable than would be given to a person without impairment, it would lead to a markedly unjust treatment of the applicant. It would be an unfair and illogical comparator to use." Ms Roche goes on to argue that Mr Winter's impairment caused the 120 conduct that the Commissioner says led to the s 8 notice and subsequent dismissal and it lay behind Mr Winter's decision to accept medical retirement; without the impairment Mr Winter would not have acted in such a way nor made the decision to medically retire. The Commissioner therefore acted unlawfully when he issued the s 8 notice. The Commissioner argues that the Tribunal cannot apply its 121 judgment to the facts unless it relies on a notional comparator. Ms Thatcher, counsel for the Commissioner, proposes that the comparator in this matter is how a police officer who engaged in the same or similar conduct as Mr Winter did, would be treated if the police officer did not have Mr Winter's impairment. Ms Thatcher relies on Purvis for this comparator. Ms Roche argues that Purvis should not and does not apply in this case. We agree with the Commissioner's argument regarding the relevance 122 and nature of the comparator. It is essential in a claim of unlawful discrimination on the grounds of impairment, for there to be a comparator against which the Tribunal can test the conduct that the applicant alleges is discriminatory because it resulted in treatment less favourable than Page 30 [2007] WASAT 55 someone without the impairment would receive. It is illogical to argue that there can be no comparator, as without one, how can the Tribunal determine what is "less favourable" under s 66A(1) of the Act? There must be something against which to compare the conduct and the Act requires that a comparison be made. It follows therefore that it is also illogical to argue that, if Mr Winter were not impaired he would not have committed the three instances of behaviour relied on by the Commissioner to issue the s 8 notice, and that the Commissioner should therefore ignore the behaviour. To do so would result in the Commissioner treating Mr Winter more favourably than he would treat an officer without an impairment. Impairment is not confined to the underlying condition to the 123 exclusion of the resulting behaviour (Purvis); Mr Winter's conduct cannot be divorced from his impairment. An impairment under the Act includes a diminished capacity to control one's behaviour. A person with a mental impairment does not necessarily lack the mental capacity to be guilty of a crime. There might be a reduced charge or penalty because of the impairment but the crime itself remains a crime with the same level of seriousness (Purvis per Gleeson CJ). Mr Winter's conduct that led to the issuing of the s 8 notice included conduct of a criminal kind (the licence incident). Legislation would need to specifically allow the criminal conduct to occur if it were to be excused because of an impairment (Purvis per Callanan J [271]). There is no legislation that excused Mr Winter's criminal conduct that constituted the licence incident. In Purvis at [13], Gleeson CJ held that it is not the applicant's 124 perception of the alleged discriminatory conduct and its effect on the applicant that is relevant to establishing unlawful conduct, for it would be natural for an applicant to think that any conduct which affected them negatively was discriminatory. Rather it is (in this case) the Commissioner's conduct which is relevant and we must decide whether that conduct was discriminatory regardless of Mr Winter's perception of how the conduct affected him. We therefore must measure the Commissioner's conduct against the 125 requirements of the Act, having regard to the objects, scope and purpose of the Act. We need to weigh up whether the Commissioner's reasons for giving the s 8 notice are consistent with the legislative scheme of the Act. To do that we must depend on comparisons. We must assume there is a person or a group of persons with whom it is usual and relevant to draw a comparison which is implicit in describing one person suffering from an impairment as distinct from another. Page 31 [2007] WASAT 55 The utility and relevance of the comparison depends on why it is 126 being made (Purvis Gummow, Hayne and Heydon JJ [201]). In order to treat some persons equally we must treat them differently (Purvis Gummow, Hayne and Heydon JJ [202]) and that is not "discrimination" within the context of the Act. The Tribunal cannot focus on the alleged reason for Mr Winter's conduct, without considering the resulting behaviour; rather, the Commissioner and the Tribunal are entitled to consider Mr Winter's conduct. The hypothetical set of circumstances against which we compare the alleged discriminatory conduct is defined by excluding all features of the impairment. To excuse Mr Winter's conduct that led to the issuing of the s 8 notice because of his impairment would leave the Commissioner in an untenable position so that he would be unable to enforce the basic principles of conduct required of police officers and expected by the public. The Commissioner in these circumstances has to balance his duty to 127 protect other police officers and his obligations to the public with his obligations to Mr Winter. It is not inconsistent with the objectives of the Act for the Commissioner to have made the decision regarding Mr Winter partly in consideration of the safety and welfare of others. We do not accept Mr Winter's arguments with respect to there being 128 no relevant comparator. It would be impossible for us to deal appropriately with this matter if we were to accept that argument. Further we do not accept Mr Winter's contention that because of his impairment he cannot or should not be disciplined by the Commissioner for his behaviour; or that Purvis does not apply to these proceedings. In our view, Purvis provides the defining scope for the exercise of our functions when dealing with an allegation of discrimination on the grounds of impairment. We cannot distinguish it as suggested by Ms Roche, merely because the Tribunal did not cite it or rely on it in Frost and WA Police Service [2005] WASAT 150, which was decided on issues of credibility based on corroborated evidence and which related to an entirely different fact situation, in that Mr Frost was discriminated against and when he returned to work he was not returned to his substantive position within WAPS. The issues Section 8 notice Did the issue of the s 8 notice and subsequent dismissal constitute 129 discrimination within s 66A of the Act? Page 32 [2007] WASAT 55 To answer that question we must ask if the Commissioner treated 130 Mr Winter less favourably than he would have treated an officer without Mr Winter's impairment who engaged in the same or similar conduct as Mr Winter. That is the appropriate comparator. If the Commissioner treated Mr Winter "less favourably" did he do 131 so because of Mr Winter's impairment? That is, was there a causal connection between the Commissioner's conduct and the impairment so that the conduct constituted unlawful discrimination under s 66B(2)(b) or (c)? Medical retirement In changing his mind to allow Mr Winter to medically retire did the 132 Commissioner discriminate against Mr Winter within s 66A of the Act? To answer that question we must ask if the Commissioner treated 133 Mr Winter less favourably than he would have treated an officer without Mr Winter's impairment who engaged in the same or similar conduct as Mr Winter. If the Commissioner treated Mr Winter "less favourably" did he do 134 so because of Mr Winter's impairment? That is, was there a causal connection between the Commissioner's agreement to medical retirement and the impairment so that his agreement constituted unlawful discrimination under s 66B(2)(b) or (c)? Commissioner's employees Did the Commissioner's officers or employees discriminate against 135 Mr Winter? There is no evidence before us of any discrimination by any of the 136 Commissioner's officers or employees. The mistake by Inspector Maslin in his report was not intentional and was not important. All further allegations made by Mr Winter and evidence led with respect to the conduct of other officers cannot ground an allegation of unlawful discrimination, as held by the Tribunal in the preliminary hearing. The applicant's argument Mr Winter argues that he was an effective and valued member of 137 WAPS, who had been commended for his bravery and had received other notices of good service. He states that he developed PTSD as a result of his duties as a police officer and "was then consigned to the scrapheap by Page 33 [2007] WASAT 55 the Commissioner for engaging in aberrant conduct, without any attempt at understanding the reasons for his aberrant conduct being made or any attempt to retrain or rehabilitate him being considered" (applicant's closing submissions, 19 October 2006, page 16). Mr Winter alleges unlawful discrimination for the reasons set out 138 above. The respondent's argument Ms Thatcher, for the Commissioner, argues that any police officer 139 that engaged in the same or similar conduct as Mr Winter would have been treated in the same way as he was. The Commissioner explained in detail the process of removal of an 140 employee from WAPS originating from both a s 8 dismissal notice and medical retirement. He denies any allegation of discriminatory conduct in his decision-making in relation to Mr Winter's removal and argues that the process undertaken with respect to Mr Winter is the usual course of action within WAPS and that Mr Winter was not treated any differently from the way that any other officer or employee would be treated. The Commissioner contends that he had lost confidence in 141 Mr Winter because of his conduct, in particular the licence incident, the email incident and the Kalgoorlie incident. If the Commissioner does not have confidence in the suitability of a member of WAPS to continue as a member, having regard to the member's integrity, honesty, competence, performance or conduct, then, subject to some procedural requirements, and in some cases to the approval of the Minister, the Commissioner argues he is entitled to remove the member from WAPS through the s 8 process. The decision is in the Commissioner's discretion and in Mr Winter's case the Commissioner contends he acted reasonably and properly in issuing the s 8 notice and subsequently agreeing to medical retirement. The estoppel argument The Commissioner asserts that Mr Winter should be estopped from 142 relying on evidence that he could not make a competent decision regarding medical retirement, as the WAIRC appeal was finalised on Mr Winter's representation that he was permanently unfit to perform the functions of a police officer. The Commissioner argues that Mr Winter cannot challenge in this Tribunal a settlement in the WAIRC and rely on that challenge to ground an allegation of unlawful discrimination. Page 34 [2007] WASAT 55 We agree that it would be inconsistent with the proper interests of 143 justice to allow Mr Winter to assert a set of facts in this Tribunal that is contrary to what he asserted and agreed on in the WAIRC. However, in light of our finding that Mr Winter has not brought adequate evidence to support his contention of lack of capacity or choice and has therefore not established that he could not make the relevant decision, the question of estoppel is academic and need not be further considered. Findings On the evidence before us, we find that when the Commissioner 144 issued the s 8 notice and when he subsequently permitted Mr Winter to retire from WAPS on medical grounds, he did not treat Mr Winter less favourably than he would have treated an officer without Mr Winter's impairment who engaged in similar conduct as Mr Winter. The Commissioner was entitled to, and we find that he did, consider 145 Mr Winter's history in WAPS, including the licence incident and the email incident, when he made his decision to issue the s 8 notice after the Kalgoorlie incident. The Commissioner was entitled to be concerned for the safety and welfare of other officers when making his decision. He was also entitled to consider the public interest when making his decision regarding Mr Winter. In this regard the Commissioner is in a special position in that public confidence in WAPS is essential to the proper functioning of the broader community. The public is entitled to rely on the Police Service to ensure a safe and secure community. For the public to do so, police officers must maintain consistently high standards. The relationship of trust that the Commissioner must have with his officers is fundamental to ensuring the proper operation of WAPS. The Commissioner was entitled to conclude that the necessary relationship of trust had been broken by Mr Winter's conduct and that he no longer had faith in his integrity, honesty, competence, performance and conduct. We also find that the process followed by the Commissioner and his 146 officers and staff leading to and after issuing the s 8 notice did not discriminate against Mr Winter because of his impairment; those processes were followed no less favourably in Mr Winter's case than they would have been in the case of another officer without Mr Winter's impairment. There is no evidence to substantiate Mr Winter's claims of a 147 conspiracy against him or a determination by the Commissioner to rid WAPS of officers on long term sick leave. It was, in our view, Mr Winter's conduct that motivated the Commissioner's actions and the Page 35 [2007] WASAT 55 Commissioner was entitled to be motivated by that conduct and to take the action that he took with respect to Mr Winter. The Commissioner's conduct was not inconsistent with the legislative 148 scheme of the Act and was not discriminatory within the terms of the Act as alleged by Mr Winter. Mr Gascoigne's costs Mr Winter seeks payment of Mr Gascoigne's costs to appear as a 149 witness under summons; the Commissioner submits that the applicant should pay any costs that the Tribunal considers should be paid in relation to Mr Gascoigne's appearance to give evidence. The Commissioner argues that the documents produced by Mr Gascoigne to the Tribunal were self-explanatory and that Mr Gascoigne is no longer a member of WAPS and under the control of the Commissioner. The Commissioner did not deem it necessary to call Mr Gascoigne to give evidence. The Commissioner claims that Mr Winter called Mr Gascoigne "for his own forensic purpose", hoping to obtain evidence to support Mr Winter's theory that his removal from WAPS was something other than usual. The Commissioner submits that there is no basis on which he should be responsible for the costs of Mr Gascoigne's appearance. As Mr Gascoigne's evidence added little to the proceedings we do 150 not make any findings as to payment of his costs; they are to be borne by Mr Winter pursuant to any arrangements he had made or makes with Mr Gascoigne. Orders The application is dismissed. 151 I certify that this and the preceding [151] paragraphs comprise the reasons for decision of the State Administrative Tribunal. ___________________________________ JUDGE J ECKERT, DEPUTY PRESIDENT Page 36