Appeal allowed in disability discrimination employment case

Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36 

Summary 

Mr Ryan commenced proceedings against the Commissioner of Police, NSW Police Force (Commissioner) alleging that the Commissioner had engaged in unlawful discrimination on the grounds of disability in contravention of s 15(2)(b) and (d) of the Disability Discrimination Act 1992 (Cth) by revoking his appointment as Leading Senior Constable. 

Mr Ryan’s proceeding was initially dismissed by a single judge in the Federal Court of Australia and Mr Ryan subsequently brought an appeal to the Full Federal Court of Australia. 

The appeal was allowed and the matter was remitted for a hearing. The orders made in the primary proceeding included dismissing Mr Ryan’s application and the costs orders for Mr Ryan to pay 80% of the Commissioner’s costs were set aside on appeal. The Commissioner was ordered to pay Mr Ryan’s costs of the appeal.  

Given the matter was remitted for a rehearing, this matter will likely be the subject of further consideration by the Court. 

Facts 

Mr Ryan had been a member of the NSW Police Force since 1984 and was appointed as a Leading Senior Constable in 2002. In 2009, Mr Ryan suffered physical and mental injuries as a result of a motor vehicle accident whilst on duty. He remained away from work on paid sick leave for 5 years.  

In January 2014, the Commissioner initiated a process to have Mr Ryan medically retired. On 13 November 2014, the commander of the relevant department that Mr Ryan was employed in wrote advising of his decision to revoke Mr Ryan’s appointment as a Leading Senior Constable. 

Between November 2014 and when Mr Ryan’s appointment was revoked in January 2015, Mr Ryan sought that the revocation be suspended and each review was rejected. In around 1 December 2014, Mr Ryan sought that the revocation be suspended pending medical discharge and on 8 December 2014, he was notified that the revocation would not be overturned or suspended. 

On 15 January 2015, the Commissioner revoked Mr Ryan’s appointment as a Leading Senior Constable on the ground of inability to fulfil the inherent requirements of this role. 

Mr Ryan was medically discharged from the NSW Police Force with effect from 17 December 2015. 

The consequence of the revocation of the Leading Senior Constable appointment included an immediate reduction in the level of his sick leave pay entitlements and a subsequent reduction in the level of his pension benefit after Mr Ryan’s discharge. 

Decision 

Mr Ryan alleged that the Commissioner engaged in discriminatory conduct by revoking his position as a Leading Senior Constable in the NSW Police Force which contravened s 15(2) of the Disability Discrimination Act 1992 (Cth) (DD Act). His application was premised on alleged breaches of s 15(2)(b) and (d) of the DD Act. Mr Ryan alleges that he had been subjected to direct or, alternatively, indirect discrimination. 

Disability Discrimination Act 1992 (Cth) 

Section 15(2) of the DD Act provides: 

(2)          It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability: 

(a)          in the terms or conditions of employment that the employer affords the employee; or 

(b)          by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or 

(c)          by dismissing the employee; or 

(d)          by subjecting the employee to any other detriment. 

The Police Act and Police Regulations 

Mr Ryan was taken to be a police officer appointed to that office under the Police Service Act 1990 (NSW) which subsequently became the Police Act 1990 (NSW) in 2002. 

Officers on leave for absences arising from work related injuries are paid sick leave.  Clause 127 of the Police Regulations provided that an officer who is, “absent from duty because of infirmity of body or mind”, is entitled to receive, “full pay for the whole of the period of the absence”, as approved by the Commissioner. 

The role of Leading Senior Constable is not part of the statutory rank and grade structure in the NSW Police Force.  Rather, the position was introduced because of an agreement between the Commissioner and the Police Association of NSW. 

In respect of the issues that the primary judge had to address:  

(1) whether the Commissioner or the State was “an employer or person acting … on behalf of an employer” within the meaning of s 15(2) of the DD Act, the primary judge:  

  • accepted that members of the police force are not employees but are independent office holders exercising original authority in the execution of their duties; and 

  • held that “employment” in the DD Act was not used in its common law sense but rather its ordinary sense, namely, “to refer to a person who is paid for performing work on a regular basis and at the direction of another”, 

such that Mr Ryan was an employee of the Commissioner for the purpose of the DD Act. 

(2) whether Mr Ryan was subjected to discrimination and the application of the DD Act, the primary judge: 

  • rejected the submission that the Leading Senior Constable Guidelines provide that an officer is entitled to maintain their Leading Senior Constable status for the entire time they are on sick leave and upheld the Commissioner’s argument that if the preconditions in cl 1.42 of the Leading Senior Constable Guidelines exist, then revocation of the Leading Senior Constable status is compelled; and 

  • accepted that the appellant was unable to undertake the inherent requirements of his position such that the preconditions in cl 1.42 were satisfied, including why Mr Ryan was unable to undertake the inherent requirements of the Leading Senior Constable appointment. 

Direct Discrimination 

  • considered that Mr Ryan’s application must fail because he had pleaded breach of paragraphs (b) and (d) of s 15(2) of the DD Act when, on proper consideration, neither applied to the revocation of his appointment; 

  • considered that s 15(2)(a) to (d) are each directed to different kinds of conduct or treatment, and that s 15(2)(d) is a residual provision which only applies to matters not otherwise covered by the preceding paragraphs. Her Honour held that if the allegations, properly considered, fall within s 15(2)(a), they do not fall within s 15(2)(b) or (d). Her Honour concluded that the allegations fell within s 15(2)(a); 

  • held that even if cl 1.42 did not compel the result that the Leading Senior Constable status be revoked, or if the claim fell within s 15(2)(b) or (d) instead of (a), Mr Ryan would not have established direct discrimination; and 

  • considered that the question of whether there had been less favourable treatment “because of the disability” did not arise. 

Indirect Discrimination 

  • found that Mr Ryan’s characterisation of the condition was incorrect because that contention assumed that there was a discretion as to whether or not to revoke the Leading Senior Constable status, when properly understood, cl 1.42 of the Leading Senior Constable Guidelines compelled that result.  Her Honour considered that the condition in cl 1.42 was more properly described as being that a police officer be able to be certified to perform pre-injury duties and perform the inherent requirements of the Leading Senior Constable role; 

  • considered that attention must be directed to the terms and conditions attendant upon Mr Ryan by his appointment as a Leading Senior Constable.  Her Honour accepted that, “there is a distinction between something which adheres to the status or the nature of the appointment, as opposed to something which is separately imposed outside the nature of the appointment”.  Her Honour considered that cl 1.42 of the Guidelines is part of the terms and conditions of the appointment and, on that basis, there was no requirement or condition within s 6(1)(a) of the DD Act; and 

  • held that, even if it were assumed that the condition in cl 1.42 of the Leading Senior Constable Guidelines was as alleged by Mr Ryan and it fell within s 6(1)(a), the condition was reasonable.  That conclusion depended, in part, upon her Honour’s construction of the Leading Senior Constable Guidelines, including the absence of a discretion to refuse to revoke a Leading Senior Constable appointment. 

The primary judge rejected Mr Ryan’s claim of unlawful discrimination because the Leading Senior Constable Guidelines compelled the revocation, such that no positive decision was made by the Commissioner. Her Honour appears to have reasoned in the following way: 

  • the Commissioner was bound by the requirement of s 12 of the Industrial Relations Act to comply with the terms of the relevant applicable Award to Leading Senior Constables. 

  • Clause 41.2 of the Award required the Commissioner to comply with the Leading Senior Constable Guidelines. 

  • Clause 1.42 of the Leading Senior Constable Guidelines required the Commissioner (through his delegate, a Commander) to revoke the appellant’s Leading Senior Constable appointment when the preconditions set out in that clause were satisfied. 

  • As the preconditions were satisfied, the Commander was compelled to revoke Mr Ryan’s Leading Senior Constable appointment. 

  • As the result was effectively compelled by law, the Commissioner cannot be taken to have treated Mr Ryan less favourably than a person without the disability would have been treated in circumstances that were not materially different (the relevant circumstances including a requirement to act in accordance with law). 

The Commissioner’s Notice of Contention 

The Commissioner contended that the primary judge erred by finding that the Commissioner or the State was an “employer” and that Mr Ryan was an “employee” within s 15(2) of the DD Act.  The Commissioner submitted that the term “employment” has its ordinary meaning derived from common law and that a police officer is not engaged under a contract of employment and is not an employee. 

Their Honours consider that there were several factors which point to a more expansive meaning of “employer” and “employee” in s 15(2) of the DD Act including: 

the language being consistent with a broader construction.  The definition of “employment” is consistent with “employee” in s 15 of the DD Act having a meaning that is not confined to a person employed under a contract of service and is inclusive. 

Accordingly, the language of s 15(2) of the DD Act is capable of referring to an employee in the sense of a person paid for performing work on a regular basis at the request and direction of another: 

the purpose of s 15 of the DD Act is consistent with the broader interpretation.  It would be anomalous for ss 15(2) and 35 of the DD Act to offer protection to the Commissioner and to the Senior Executive Service of the NSW Police Force as employees under contracts of employment, but to exclude police officers of lower ranks from that protection and that it would have been improbable that this could be the legislative intention. 

s12(8) states that Division 1 of Part 2 (including s 15) of the DD Act is intended to give effect to Australia’s obligations under the Discrimination (Employment and Occupation) Convention 1958 adopted by the General Conference of the International Labour Organisation on 25 June 1958 (the Convention). 

Their Honours agreed with the primary judge’s finding that Mr Ryan was an “employee”. 

The Notice of Appeal 

Grounds 1 and 4(a) 

Ground 1 of the Notice of Appeal alleges that the primary judge erred in finding that there was no decision or positive action taken by the Commissioner to revoke Mr Ryan’s Leading Senior Constable appointment capable of constituting direct discrimination for the purposes of s 5(1) of the DD Act. 

Ground 4(a) of the Notice of Appeal alleges that the primary judge erred in finding that Mr Ryan was not subject to indirect discrimination for the purposes of s 6(1) of the DD Act because the Commissioner had not imposed any requirement which Mr Ryan was to comply with. 

Mr Ryan submits that the primary judge erred in finding that the Leading Senior Constable Guidelines compelled the revocation of his appointment when the preconditions were met. 

Mr Ryan submits, alternatively, that the preconditions under cl 1.42 of the Leading Senior Constable Guidelines were not met because: 

the Leading Senior Constable Guidelines provide that the legitimate use of sick leave cannot provide the basis for an officer to not meet the inherent requirements of the position; and 

Mr Ryan had not been certified as permanently unable to return to pre-injury duties and unable to undertake the inherent requirements of the position. 

Section 15(2) of the DD Act provides, relevantly, that it is unlawful for an employer to “discriminate” against an employee on the ground of the employee’s disability by subjecting the employee to detriment. 

Section 5(1) of the DD Act provides that direct discrimination occurs, relevantly, where, because of the aggrieved person’s disability, the discriminator “treats” the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. 

Section 6(1) provides that indirect discrimination occurs where, relevantly:  

the discriminator “requires” the aggrieved person to comply with a requirement or condition;  

because of a disability, the aggrieved person does not comply with the requirement or condition; and  

the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. 

It may be seen that for there to be a contravention of s 15(2) of the DD Act through direct discrimination, the employer must treat an employee less favourably than a person without the disability would be treated; and for there to be a contravention through indirect discrimination, the employer must require an employee to comply with a requirement or condition. 

The intention of the Industrial Relations Commission in making cl 41.2 of the Award was to leave the Commissioner with a discretion to revoke a Leading Senior Constable appointment seems consistent with industrial reality. It seems unlikely that the Industrial Relations Commission can have intended that the agreement between the Commissioner and the Police Association would require that a Leading Senior Constable appointment must be revoked in agreed circumstances, and that the Commissioner should have no discretion to decline to revoke if that was considered appropriate. That would be inconsistent with the notions of fairness and reasonableness. 

Ground 2 

Ground 2 of the Notice of Appeal alleges that the primary judge erred in finding that the decision to revoke Mr Ryan’s appointment as a Leading Senior Constable did not constitute denying Mr Ryan a benefit associated with employment for the purposes of s 15(2)(b), or subjecting Mr Ryan to a detriment for the purposes of s 15(2)(d) of the DD Act. 

Ground 3 

The third ground of the Notice of Appeal alleges that the primary judge erred in finding that Mr Ryan was not treated less favourably than a person without the disability for the purposes of s 5(1) of the DD Act. 

Ground 4(b) 

Ground 4(b) of the Notice of Appeal alleges that the primary judge erred in finding that Mr Ryan was not subjected to indirect discrimination for the purposes of s 6(1) of the DD Act.  The primary judge found that a requirement or condition imposed by the Commissioner that the revocation of Mr Ryan’s Leading Senior Constable appointment because he was certified as unable to return to pre-injury duties and was unable to fulfil the inherent requirements of the position was reasonable. 

Commentary  

A common and fundamental thread running through the primary judge’s reasons was the finding that cl 1.42 of the Leading Senior Constable Guidelines mandated revocation of a Leading Senior Constable appointment when the preconditions under that clause were satisfied.  That finding stemmed, from her Honour’s misconstruction of cl 41.2 of the Award which gave the Commissioner a discretion to revoke a Leading Senior Constable appointment and led to the misconstruction of cl 1.42 of the Leading Senior Constable Guidelines. 

The full case can be read here.  

Saranya Ayyar is a Senior Associate and Nathan Hedges is a Graduate at Law at Wotton and Kearney. 

MichelleBennett