Thursday, 05 September 2013 10:33

Kuyken & ors v Lay, Chief Commissioner of Police - Jul 2013

This matter involves applications by 16 sworn members of Victoria Police, being heard together.

Each member alleges direct discrimination on the basis of physical features in the area of employment. The specific physical features claimed are long hair and facial hair. Four of the police officers also allege direct discrimination on the basis of sex in the area of employment, and one police officer also alleges direct discrimination on the basis of religion in the area of employment.

The Commission's submissions relate to the interpretation of a number of areas of the Equal Opportunity Act 2010 (EOA 2010), including:

  • the definition of the attribute of physical features
  • the framework for a claim of direct discrimination under the EOA 2010 including the interaction between Parts 2 and 4 of the EOA 2010, particularisation of claims, and the onus and standard of proof
  • the test for direct discrimination (s 8) including issues regarding causation and the meaning of "detriment"
  • the interpretation of the statutory authority exception (s 75)
  • vicarious liability
  • victimisation and
  • remedies and the Tribunal's power to make orders to prevent future breaches of the EOA 2010.

The Tribunal heard these applications together on 23 to 27 September 2013, and the decision of Tribunal Member Julie Grainger was issued on 29 November 2013.

Member Grainger found the applicants had been directly discriminated against on the basis of their physical features in breach of section 18(d) of the Equal Opportunity Act 2010 (EOA), through the promulgation and enforcement of a new "Grooming Standard" in the Victoria Police Manual, which banned police officers wearing long hair and all forms of facial hair except moustaches. However, Member Grainger found that the respondent's conduct was authorised by section 5(2)(c) and section 17 of the Police Regulation Act 1952 (PR Act). As a result, the respondent's conduct was covered by the general exception in section 75 of the EOA. This meant both the introduction and enforcement of new Grooming Standards were authorised by the PR Act, and were not unlawful under section 13(1)(a) of the EOA.

In relation to the four applicants who also claimed discrimination on the basis of sex and religious belief or activity (in relation to long hair) Member Grainger stated that even if the respondent had discriminated against those applicants, that discrimination was permitted under section 75 of the EOA for the same reasons as set out above.

In relation to the applicants' claims of victimisation, Member Grainger found the direction to not attend VCAT hearings in uniform, on duty, or by using police vehicles did not amount to victimisation. Similarly, the applicants were not victimised by the actions of the Chief Commissioner seeking to amend the Police Regulation Act 1952 (which resulted in the introduction of section 5(2)(c)).

In relation to the applicants' claim that the Chief Commissioner failed to properly take into consideration their right to freedom of expression in the Charter, Member Grainger found that the right to freedom of expression was not engaged. Member Grainger therefore did not need to go on to consider whether the right had been properly considered or reasonably limited.

A decision was issued for each applicant in the proceedings, with the primary reasons set out in Mr Kuyken's decision. A copy can be downloaded below.

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