Lipman v Commissioner of Police [2015] NSWCATAD 250

ANTI-DISCRIMINATION – Carers responsibilities – Discrimination in employment – Promotional opportunity advertised on full-time basis – Position accepted on full-time basis prior to negotiations for part-time work agreement – Offer of part-time work agreement required employee to work more hours than carers responsibilities allowed her to work - Whether a term of an employee’s prospective employment is a term or condition of employment afforded to her – Whether employee’s access to promotional opportunities limited or denied by requirement that she work more hours than she was able to work

DIRECT DISCRIMINATION – Less favourable treatment - Identification of hypothetical comparator – Whether comparator is officer with no carer’s responsibilities who requires a part-time work agreement – Whether characteristics extension may be taken into account for purpose of comparison

INDIRECT DISCRIMINATION – Whether systemic discrimination formed part of applicant’s complaint to Anti-Discrimination Board – Consequences of applicant’s failure to plead substantive provision to support her claim of indirect discrimination – Whether parties conducted case on different basis from pleadings – Whether respondent required applicant to comply with a requirement or condition

JUDICIAL NOTICE – Circumstances in which tribunal is entitled to take judicial notice of a fact – Whether tribunal entitled to take judicial notice of the proposition that the need to be absent from employment to provide care is a characteristic appertaining to a person with carer’s responsibilities

VICTIMISATION – Whether employee subjected to a detriment -- Whether part-time work offer was a sham – Whether any detriment to which the applicant was subjected was imposed on her on the grounds of her discrimination complaints