VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H124/2018	
CATCHWORDS	
Equal Opportunity Act 2010 (Vic) – claims of direct and indirect discrimination on the basis of disability and of personal association with a person having an attribute protected by the Act - whether employer failed to make reasonable adjustments for a disability – whether disability proved – whether employee requested reasonable adjustments for a disability – whether employer knew of disability and of claimed need for adjustments – whether claim based on personal association made out – other person not identified as having a disability Equal Opportunity Act 2010 (Vic) ss 4, 6, 8, 9, 18,  20  
	
APPLICANT	Travis Mulder	
FIRST RESPONDENT	Victoria Police 	
SECOND RESPONDENT	Robert May	
THIRD RESPONDENT	Martin Fleming	
FOURTH RESPONDENT	Janelle Klomp	
FIFTH RESPONDENT	Richard Watkins	
WHERE HELD	Melbourne 	
BEFORE	Senior Member B. Steele 	
HEARING TYPE	Hearing	
DATEs OF HEARING	11 - 15, 18 November 2019	
DATE OF ORDER and written reasons	6 April 2020	
CITATION	Mulder v Victoria Police (Human Rights) [2020] VCAT 428	

Order
The claim under the Equal Opportunity Act 2010 is dismissed. 

B. Steele
Senior Member			

APPEARANCES:		
For Applicant	In person	
For Respondents	Ms S. Fitzgerald of counsel	

Reasons
background
1	While working as a police officer in 2006, Travis Mulder, the Applicant, was involved in an incident which had far-reaching effects on him. Because of the events flowing from that incident, including alleged behaviour of officers at Box Hill Police Station, he says, he suffered a psychological injury. Mr Mulder claims that in breach of the Equal Opportunity Act 2010 (the Act) the Respondents discriminated against him based on his injury, including failing to make reasonable adjustments to his work to accommodate the injury. 
2	In 2013, the Applicant made a WorkCover claim for medical expenses relating to his claimed psychological injury. In 2014, he took leave to be at home with his pregnant wife and later with their very prematurely born child. In September that year, when he was due to return to work, the Applicant was directed to work under the management of the Box Hill Police Station. The Applicant did not return to work and is no longer a member of Victoria Police.
The Equal Opportunity Act 2010
3	The Act prohibits discrimination based on various attributes a person may have. Section 6 of the Act lists those attributes. One of them is disability. Mr Mulder’s claim is based on disability.
4	Another of the protected attributes listed in section 6 is “personal association” with a person who has a protected attribute. Mr Mulder also claims he was discriminated against because of his association with another police officer who was involved in the 2006 incident, James Fotinatos. 
5	Discrimination as defined in the Act can be direct or indirect. Direct discrimination occurs when someone treats another person unfavourably because of a protected attribute.
6	Indirect discrimination occurs when someone, for example an employer, imposes a requirement condition or practice which disadvantages persons with a protected attribute. Typically, this is seen to occur when the requirement condition or practice appears to treat all employees subjected to it equally but affects the employee with the protected attribute disadvantageously. However, if the requirement condition or practice is reasonable then it is not discriminatory. 
7	Section 18 says an employer must not discriminate against an employee (on the basis of a protected attribute) by, amongst other things, subjecting them to “any detriment”. The definition of “detriment” in section 4 of the Act says that it includes “humiliation and denigration”. 
8	Section 20 provides that an employer must make reasonable adjustments for an employee’s disability.
9	Mr Mulder’s claim is based on those provisions and I will consider them in detail when assessing the evidence. 
events underlying The Applicant’s claim
10	In 2006, when working at Burwood Police Station, the Applicant attended a family dispute, with Mr Fotinatos, of Box Hill Police Station. A man was arrested and charged. Later, the charges were withdrawn, but an Intervention Order was granted against the man.
11	The man who had been arrested complained against the arresting officers – the Applicant and Mr Fotinatos. The complaint was investigated by the Police Ethical Standards Division, according to the Applicant’s statement.
12	The Applicant considered the investigation was unfair and reached wrong conclusions. He said the investigator never spoke to the relevant supervisors. He said it was improper that the investigator was from Box Hill Police Station when senior officers from that station had been involved in decision-making about the arrest. From that time on, the Applicant considered that his employer treated him differently and he suffered a psychological injury. 
13	The Respondents produced no evidence about these issues. They said they did not necessarily agree with the Applicant’s understanding of the events. They said it was for the Applicant to prove his disability but there was no need to debate about what led to it. 
14	In December 2010, the man who had been arrested in 2006 issued proceedings for malicious prosecution against the Applicant and Mr Fotinatos. 
15	The Applicant said in his witness statement that Mr Fotinatos, who was still at Box Hill Police Station, told him of rumours circulating about their role in the arrest. The Applicant said that in 2011, Mr Fotinatos told him he was struggling to cope with “bullying” and “harassment” from his supervisors at Box Hill Police Station who had had direct involvement in the 2006 incident.
16	The Applicant said that the treatment of Mr Fotinatos at Box Hill Police Station led him to fear he would receive similar treatment when in 2011, because of industrial action, he and the other officers at Burwood Police Station were required to work from Box Hill Police Station for a time. 
17	Victoria Police funded the defence of the Applicant and his colleague in the civil trial in 2012. It settled early, before any evidence had been given. Victoria Police compensated the man who had been arrested. 
18	In 2013, the Applicant made a WorkCover claim for the medical costs associated with his psychological injury. From April 2014, he was on leave owing to his wife’s difficult pregnancy and the premature birth of their child. He was due to return to work around the end of August 2014. At this time, Victoria Police changed the arrangements at Burwood Police Station so that it became a “shop front”, managed by Box Hill Police Station. The Applicant was directed to return to work under that arrangement. He did not do so.
The Applicant’s claim
19	The Applicant was not represented by a lawyer. Understandably, his evidence and documents were not tailored to the relevant sections of the Act. After his particulars of claim were filed in May 2019, the Respondents filed a defence summarising the claim as they understood it. The Applicant made some adjustments to that summary in a document filed on 11 September 2019 and the Respondents reproduced that as amended in their particulars of defence dated 26 September 2019.
20	From that, the Applicant’s claim can be summarised as follows:
a	Indirect discrimination claim: The Applicant claims that the direction in 2014 that he work under the management of Box Hill Police Station was indirect discrimination against him, on the basis of his disability, a psychological injury, because the direction subjected him to detriment in breach of section 18(d) of the Act.
b	Direct discrimination claim: The Applicant claims that the direction to work from Box Hill Police Station was also direct discrimination against him; he claims the direction was given because he had made a WorkCover claim in 2013 about the effects of the 2006 incident.
c	Failure to make reasonable adjustments claim: The Applicant claims that after the 2013 WorkCover claim, the Respondents failed to make reasonable adjustments for his psychological injury, in breach of section 20 of the Act.
d	Discrimination based on association claim: The Applicant claims the Respondents directly discriminated against him on the basis of his association with Mr Fotinatos by subjecting him to detriment (bullying and targeting) because of that association and by failing to make reasonable adjustments for his injury. Such treatment if proved would breach section 18(d) and section 20 of the Act.
THE HEARING
21	The Applicant gave evidence and was cross-examined. He called as witnesses James Fotinatos, Stephen Dimsey (a former colleague), Senior Sergeant Stuart Cockerell and Luke Oliver of the Police Association.
22	Each of the four individual Respondents gave evidence and was cross-examined. The Respondents also called Angela Tu, injury management consultant at Victoria Police and Dr Melissa Sullivan, police medical officer. 
23	The hearing took place over six days. Evidence was given about many related issues, but I have confined these reasons for decision to the matters directly relevant to the Applicant’s claims that he was discriminated against in breach of the Act. 
Evidence of Disability
24	The question of what disability the Applicant had and how it affected his capacity to work under the Box Hill Police Station management was central to his claims. 
25	In 2013, when the Applicant made a WorkCover claim for medical expenses, reports were provided by his doctor and a psychologist to whom the doctor had referred him. The Applicant relied on these reports in this proceeding
26	On 19 September 2019, the Applicant filed those two expert reports: one from Dr Robert Murdoch dated 24 November 2014 and one from Graham Little dated 10 December 2014. At the hearing, neither of those experts was available for cross-examination. This was unusual and might affect the Applicant’s ability to prove his case, so I set out how this occurred. 
27	At a directions hearing on 14 May 2019, the Applicant was directed to file and serve any expert reports. The directions required that any expert report comply with VCAT Practice Note 2.
28	On 29 August 2019, specific directions were given that even if an expert report was an old report it must be made to comply as far as possible with the form required by VCAT Practice Note 2. 
29	The Applicant did not fully comply. He filed copies of emails which (he said at the hearing) he had received from Dr Murdoch and Mr Little, setting out their qualifications and experience in summary form. He provided no other material in support of the reports.
30	On the second day of the hearing, the Applicant revealed he had not arranged for his expert witnesses to attend in person. He was hoping they could appear by telephone or video link because one was a busy general practitioner and the other had a problem with his eyes. He mentioned it would have been expensive to arrange for them to attend in person. Video conferencing was not available.
31	The Respondents’ counsel submitted leave should not be granted for these witnesses to appear by telephone, because she wanted to hand them various documents and seek their comment. 
32	I offered the Applicant the opportunity to formally apply for his witnesses to attend by telephone, pointing out that he should arrange for them to have access to a full set of the documents in the Tribunal Book which had been prepared by the Respondents. 
33	Mr Mulder said he would not apply for the witnesses to attend by telephone and I explained that it was likely I would not be able to give much weight to their evidence. The Applicant said he understood and would not apply for them to attend by telephone, but still wished to rely on the expert reports.
34	Although the Respondents objected to the reports being admitted in evidence at all, I admitted them and said I would later hear submissions about what weight if any I should give them. 
35	The Applicant gave some basic evidence about the reports and was briefly cross-examined. 
36	In summary Dr Murdoch’s report, dated 24 November 2014, was as follows:
a	Dr Murdoch had seen the Applicant six times, beginning on 9 April 2014 when he presented as preoccupied and depressed “as a result of his perception of how he had been treated by his employer”. The report summarised the incident in 2006, subsequent litigation, settlement, and the Applicant’s feelings he had been unsupported by his employer, statement of a profound effect on him and his family and career.
b	Dr Murdoch referred the Applicant to Mr Little (psychologist) for assessment and treatment, saw him again on 2 May 2014, noted the psychologist described post-traumatic stress disorder, prescribed antidepressant medication and saw him again on 16 September 2014, when he was worried that he would be forced to return to the Box Hill Police Station command and Dr Murdoch said “I believed this would be injurious to his health”.
c	On 29 September 2014, the Applicant saw Dr Murdoch’s colleague Dr Jane Froster who provided a certificate “due to his mental state”.
d	Dr Murdoch said he diagnosed post-traumatic stress disorder, the prognosis had improved at the time of writing, but the Applicant was “incapacitated for his pre-injury duties if this were to involve falling under the Box Hill command”.
37	Mr Little’s report was dated 10 December 2014. It did not say how many times the writer had interviewed or treated the Applicant but mentioned at least two occasions. The Applicant said it was four or five occasions. The main points in the report were as follows:
a	A description of symptoms which Mr Little considered were associated with post-traumatic stress disorder resulting from various traumatic events the Applicant had encountered in his police work.
b	An opinion that the symptoms were exacerbated by the treatment the Applicant had received from his work supervisors at Victoria Police following the incident in 2006 and what the Applicant considered to be false allegations against him.
c	An opinion that the Applicant had the capacity for his pre-injury duties but only at a place other than Box Hill Police Station, because the Applicant feared that there he would be “managed by the perpetrators of his perceived sustained intimidation, harassment and victimisation”.
d	An opinion that if the Applicant were to work at Box Hill Police Station at that time:
…he would suffer an immediate and profound exacerbation and/or deterioration of his posttraumatic stress disorder and his depressive/anxiety condition.
38	The Applicant’s evidence was that the reports had been requested by his lawyers in his WorkCover claim. He had made an appointment with each of the writers the week before the hearing and asked them to email a CV, which each of them had done. 
39	The Respondents’ counsel made extensive submissions about the reports and the issues she would have raised in cross-examination. In summary, she said:
a	Dr Murdoch is a general practitioner, not a psychiatrist and did not seem to have any special expertise in mental health.
b	Dr Murdoch did not refer the Applicant to a psychiatrist and his referral to the psychologist Mr Little did not mention a diagnosis of any serious psychiatric issues.
c	Mr Little apparently diagnosed the Applicant with post-traumatic stress disorder after only one session with him.
d	It appeared from Dr Murdoch’s report that he did not form a medical opinion about that the Applicant was unable to work under Box Hill Police Station command until he saw him on 22 September 2014. That was after the date of the alleged discriminatory direction on 15 September 2014 and after the alleged failure to make reasonable adjustments when the Applicant made his WorkCover claim in May 2013.
e	Mr Little said that from April 2014 the Applicant was unable to perform his duties, but in fact the Applicant at that time was on carer’s leave. Counsel submitted this mistake of fact may have affected Mr Little’s diagnosis and in turn Dr Murdoch’s view of the Applicant’s need for adjustments in the workplace.
f	The Respondents would have put to Dr Murdoch and Mr Little that there had been a long industrial dispute affecting Burwood Police Station and that police members there had used sick leave as a tool in the past. Counsel submitted that the experts may have accepted that the Applicant’s reasons for not wanting to work at Box Hill Police Station were not entirely medical. 
g	The Respondents also would have asked Dr Murdoch and Mr Little whether the fact that the Applicant’s aversion to working at Box Hill Police Station was a long-standing personal preference would have affected their diagnoses.
h	The Respondents pointed out that Dr Murdoch and Mr Little knew none of the surrounding circumstances and might have adjusted their evidence had they known more about the events.
i	The Respondents also said they would have asked whether it made a difference that the Applicant was being asked only to start and finish the day at Box Hill Police Station. They might, counsel suggested, have agreed this was a reasonable adjustment and different to working entirely under Box Hill Police Station management.
j	Counsel for the Respondents said she would have suggested to these two witnesses that starting and finishing at Box Hill Police Station was not very different to the way the Applicant was working before he went on leave and they might have agreed that he would be able to work from Box Hill Police Station in that restricted way.
40	The Respondents submitted that because all this had not been put to Dr Murdoch and Mr Little, I should give their reports no weight. I was not persuaded of that.
41	Some matters outlined above which the Respondents’ counsel would have put to the witnesses were not established by the evidence. I would not necessarily have found that Burwood police members had used sick leave as a tool in an industrial dispute, or that the Applicant had a long-standing personal aversion to working at Box Hill Police Station independent of his concerns about how he had been treated by Box Hill police members in relation to the 2006 incident, the ensuing investigation and the 2012 civil claim against him. 
42	Nor was it clear to me that the Applicant had been asked in September 2014 only to start and finish the day at Box Hill Police Station. He was also rostered to work van shifts and night shifts when as I understood his uncontested evidence the Burwood “shop front” would not be open at all and the shifts would be managed from Box Hill Police Station. Further, his managers would have been based at Box Hill Police Station. 
43	While there were serious questions to ask of Dr Murdoch and Mr Little, I am not persuaded they would have changed their opinions that Mr Mulder had a psychological injury which made him unable to work at Box Hill Police Station. 
44	It may be that questioning would have undermined the credibility of the reports, for example in regard to Mr Little’s misapprehension that the Applicant was on sick leave from April 2014. 
45	It would be unfair to the Respondents to accept unreservedly the evidence in the written opinions of Dr Murdoch and Mr Little. On the other hand, I cannot ignore that the reports support the Applicant’s contention that by the end of 2014, he had a psychological injury which falls within the definition of “disability” under the Act. 
46	On the other hand, perhaps the Applicant’s lack of resources made it too difficult for him to arrange their attendance for cross-examination. Perhaps his lack of legal expertise meant he did not understand the significance of their opinions for his case. The Respondents submitted that in the absence of evidence of a disability or its characteristics and requirements, I could not find there had been any discrimination. 
47	The medical opinions at issue here were not the only evidence of disability. The Applicant’s WorkCover claim made in 2013 succeeded to some extent although there was no evidence before me of how that finally occurred. Further, in December 2015, the police medical officer reported that the Applicant had “no current work capacity” which is also at least arguably an acknowledgement of a disability.
48	Taking all that into account, I put to one side the lack of proper expert evidence of the Applicant’s disability. For the purpose of examining the other evidence, I assume that he did have a psychological injury as a result of events up to the time he made his WorkCover claim in 2013. I also assume that this disability required an adjustment to his work conditions – namely that he not be required to work under Box Hill Police Station management. The medical evidence of his disability and its effects on him was ultimately less important than the other obstacles to proving a breach of the Act. 
Indirect discrimination claim - September 2014
49	I turn now to the Applicant’s claim that the direction in September 2014 that he was to work under the management of Box Hill Police Station indirectly discriminated against him.
50	Section 9 of the Act relevantly provides:
(1)	Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice— 
(a)	that has, or is likely to have, the effect of disadvantaging persons with an attribute; and 
(b)	that is not reasonable. 
(2)	The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable. ….
(4)	In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.
51	The Respondents’ submissions raised several questions about how section 9 could apply to the direction that Mr Mulder work from or under the management of Box Hill Police Station. They said previous cases indicated the Tribunal should be satisfied of the following elements: that the Applicant had the relevant disability; that the requirement on its face treated the Applicant the same as others (which they contested); what the requirement was; that the requirement was real and not artificially constructed from say a single response to a request; that the requirement was actually imposed on the Applicant to his detriment; and that the requirement disadvantaged “persons with” the relevant disability. 
52	I was satisfied on the basis of the Applicant’s evidence that the First, Second, Third and Fifth Respondents imposed or proposed to impose on him a requirement that he work under Box Hill Police Station management. 
53	I was not satisfied that this requirement disadvantaged “persons with” the relevant disability. 
54	In Petrou v Bupa Aged Care Australia Pty Ltd, Judge Harbison VP said:
...it is still necessary for any complainant to prove that the requirement has, or is likely to have, the effect of disadvantaging persons with an attribute. 
This is because the Act says so. That use of the plural “persons” is important. The form of words is “the effect of disadvantaging persons with an attribute”. The section does not say in subsection 9(1)(a) “that has, or is likely to have, the effect of disadvantaging the Applicant who has an attribute”. I take the fact that this section is not cast in individual terms but is instead cast in terms of identifying a group of persons with an attribute who are or are likely to be disadvantaged by the requirement, to be an essential feature of the claim of indirect discrimination. 
My obligation to interpret the words of the Act in accordance with its objectives, and consistently with the Charter of Human Rights and Responsibilities does not change this conclusion. There is no room for any favourable interpretation in the wording of the section. The word “persons” is not ambiguous. It clearly refers not just to the Applicant, but to at least one other person…
Further, this interpretation is consistent with the objective of the Equal Opportunity Act 2010 itself. Its objective includes recognition that the equal application of the same rule to different groups can have poor results or outcomes. The objective also refers to the need to encourage the identification and elimination of systemic causes of discrimination…
Given all of the matters to which I have referred, the use of the plural “persons” has a clear meaning which should be applied.
In the context of this case then, Mrs Petrou must prove that the requirement that bed poles be not used disadvantages persons with multiple sclerosis, not just that it disadvantages her as an individual.
55	I accept that interpretation, which indicates that section 9 of the Act applies to systemic discrimination, not to single persons disadvantaged by the imposition of a requirement condition or practice. Applying that interpretation to the present case, there was no evidence that the requirement to work out of Box Hill Police Station would disadvantage other persons with the same attribute as the Applicant. 
56	Even assuming the Applicant’s psychological injury made him unable to work under the management of Box Hill Police Station, his situation does not fall within that interpretation of section 9. The inability to work under the management of Box Hill Police Station is a symptom or effect of the Applicant’s particular psychological injury. He is not one of a group of persons with the same attribute who are likely to be disadvantaged by the direction to work under the management of Box Hill Police Station. He is one person likely to be disadvantaged by the direction because of his particular circumstances, not because of his attribute of having a disability which is a psychological injury.
57	Accordingly, without considering all the other objections raised by the Respondents, I am satisfied the Applicant’s claim that he was subjected to indirect discrimination cannot succeed and it is dismissed.
Direct discrimination claim - September 2014
58	The Applicant did not press this direct discrimination claim at the hearing. Inspector Robert May gave evidence and was cross-examined by the Applicant. It was Inspector May who made the decision in 2014 that Burwood police officers would work under the management of Box Hill Police Station. Senior Sergeant Fleming, the Third Respondent, who had day to day management at Burwood Police Station at the relevant time, also gave evidence and was cross-examined.
59	The Applicant did not ask either of them whether in 2014 they had directed him to work at Box Hill Police Station because of the WorkCover claim. 
60	Further, in the Applicant’s witness statement (filed 19 July 2019), he did not mention that allegation. He said he was “targeted by supervisors from the Box Hill and Nunawading Police Stations as a direct result of my complaints”. He said that this happened over the eight months from May 2013 when he made his WorkCover claim. However, reading the statement, it is clear that when he refers to his complaints, he means his complaints about targeting by Box Hill Police Station management, not the complaints in his WorkCover claim. For the sake of completeness I note also that he made no allegation that the “targeting” was based on a disability.
61	The Applicant did not refer to this aspect of his claim in his final submissions. His complaint there was that the Respondents did not take his WorkCover claim into account when they directed him to work at or under the management of Box Hill Police Station in September 2014. He said: 
At no stage was the injury claim ever considered by the Respondents to be an issue when the direction was made to place the Applicant under Box Hill management.
62	Thus, although Mr Mulder said in his pre-hearing documents that this direct discrimination was a part of his claim, he did not produce evidence in support of it. 
63	At the hearing, the Applicant pursued his claim that the Respondents should have refrained from giving the direction that he work at or from Box Hill Police Station because his disability made him unable to work under the management there. 
64	The claim of direct discrimination claim based on the making of WorkCover claim was not pursued, could not succeed and is dismissed.
Claim for failure to make reasonable adjustments
65	The Applicant claimed that the Respondents should not have directed him to work under the management of Box Hill Police Station, or should have offered him a different work situation, because of his psychological injury flowing from the 2006 incident and the effects on him. In terms of the Act, he claimed that the Respondents failed to make reasonable adjustments for his disability. 
66	Section 20 of the Act relevantly provides as follows:
(1)	This section applies to a person with a disability who— 
(a)	is offered employment or is an employee; and 
(b)	requires adjustments in order to perform the genuine and reasonable requirements of the employment. 
(2)	The employer must make reasonable adjustments unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made. 
(3)	In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including— …
67	Section 20 only applies if the person in question has a disability. Section 4 provides the following definition:
"disability" means— 
(a)	total or partial loss of a bodily function; or 
(b)	the presence in the body of organisms that may cause disease; or 
(c)	total or partial loss of a part of the body; or 
(d)	malfunction of a part of the body, including— 
(i)	a mental or psychological disease or disorder; 
(ii)	a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder; or 
(e)	malformation or disfigurement of a part of the body— 
and includes a disability that may exist in the future (including because of a genetic predisposition to that disability) and, to avoid doubt, behaviour that is a symptom or manifestation of a disability”.
68	As the Respondents submitted, the only relevant category above is “mental or psychological disease or disorder”. Unlike some categories of disability, such as loss of a part of the body, which might be obvious to any observer, a mental or psychological disease or disorder must be assessed by a trained observer, such as a doctor or psychologist. That was the Respondents’ submission and I accept it. Non-professionals may be able to correctly observe that someone has symptoms consistent with a mental or psychological problem, but without professional assessment we cannot be sure of the cause, diagnosis or treatment. 
69	Further, the question of what reasonable adjustments are required to accommodate an employee with such a disability also requires professional advice. 
70	As I have said, I assume for present purposes that the Applicant did have a psychological injury and that it required an adjustment to his work conditions – namely that he not be required to work under Box Hill Police Station management. 
71	Even with those assumptions, the most important issue remains - whether, when the Respondents directed the Applicant to work under the management of Box Hill Police Station, they knew or should reasonably have known that he had  a disability which required specific adjustments so that he could continue to do his job. Perhaps they should have concluded from his WorkCover claim that he had a disability. Then the next question to ask is when, if ever, they could have known what adjustments were required because of it. 
72	In September 2014, the Applicant was due to return to work following some months of carer’s leave and paternity leave. The Respondents (the First and Second Respondents, with the Third Respondent passing on instructions) directed him to work under the management of Box Hill Police Station. He refused and in fact never returned to work after that. 
73	The Applicant must prove that the Respondents failed to make reasonable adjustments for his disability. It would not be enough for him to prove that he had the disability or even that his medical advisers correctly concluded that he could not safely work under Box Hill Police Station management. It would not be enough for him to prove he was bullied or treated badly by personnel at Box Hill Police Station as a response to his complaints about the 2006 incident and the events which followed it. It would not be enough for him to prove he had complained to senior officers about the alleged bullying. 
74	Those matters if proved might point to a failure of management within Victoria Police to deal with legitimate issues raised by the Applicant. Those matters do not amount to a failure to make reasonable adjustments in breach of section 20 of the Act, or any other breach of the Act. 
75	The Applicant had to prove that his employers knew he had a disability and knew (or reasonably should have known) what adjustments were required to accommodate his disability and allow him to do his job. 
76	When VCAT has applied section 20 of the Act in other cases, it has considered it necessary for an applicant to establish that adjustments were requested and were truly required by the disability. See for example Harrison v Department of Education and Training, Walker v Heathcote Health and Muller v Toll Transport Pty Ltd (No 2). In Muller, the Tribunal denied relief to an employee who had not told her employer what adjustments she needed. The Tribunal said:
…an employee needs to articulate what he or she needs and expects from an employer by way of adjustment so as to enable him or her to perform the genuine and reasonable requirement of the particular job.
77	If the employee has not done that, they must at least demonstrate that the employer had that information by some other means. I turn now to consider the evidence about what information was given, by the Applicant himself or others, to the Respondents. 
78	As noted, the Applicant produced two medical reports, one from Dr Murdoch, dated 24 November 2014 and the other from his psychologist, Mr Little, dated 10 December 2014. Each report said the Applicant could not work at Box Hill Police Station because working under the management there would aggravate his trauma. The Applicant agreed when cross-examined that he did not send those medical reports to Victoria Police at any time and that he could not say whether they were ever sent to Victoria Police. The reports were dated well after the occasion in September 2014 when the Applicant was due to return to work and did not. 
79	Mr Mulder also agreed when cross-examined that his WorkCover claim form in 2013 did not say that his claimed injury made him unable to work at Box Hill Police Station. I was referred to the claim form and found that it did not mention any inability to work at Box Hill Police Station. Apart from formal matters such as names and dates, the only detail recorded there was as follows:
During the course of my employment as a police officer I sustained psychological injury… On the 12.2.2006 I attended a domestic dispute which in turn developed into an incident within the force causing me to suffer severe anxiety and depression. This issue was from ’06 to now.
80	In answer to the question about where he was working when injured, the form said: “Burwood and Box Hill police stations”. The form made clear that he had taken no time off work.
81	The Applicant agreed when cross-examined that the certificate of capacity later issued for 29 September 2014 was the first time a doctor had informed Victoria Police that because of his injury Mr Mulder was unable to work at Box Hill Police Station. There was no evidence before me that the Respondents had received that information in any other way.
82	The Applicant also agreed when asked in cross-examination that after this certification that he could not work at Box Hill Police Station, he was not given any further direction to return to work at Box Hill Police Station. I note there was no evidence that any such further direction was given to him. 
Applicant’s evidence about 2011
83	The Applicant said that in 2011 when Burwood Police Station was briefly closed because industrial action meant it could not be operated, he made clear his reasons for not wanting to work under the Box Hill Police Station management. 
84	The Applicant said he told Inspector May at a meeting on 20 October 2011 that he could not work at the Box Hill Police Station and explained the issues as to why he could not work there.
85	The Applicant was asked about this and he was adamant that in the meeting on 20 October 2011, he had made clear that he opposed working at Box Hill Police Station because of the civil litigation pending and impacting on him. He maintained this evidence despite it being put to him that Inspector May said he had not done so.
Inspector May’s evidence about 2011
86	Inspector May, the Second Respondent, made two statements, dated 25 September 2019 and 8 November 2019. He related that he was the local area commander from 2008 to 2019.
87	He said that on 20 October 2011, when Burwood Police Station was to be temporarily closed, he met with Acting Senior Sergeant Cockerell, then officer in charge at Burwood Police Station and the Applicant. This was because the senior sergeant told him the Applicant proposed taking sick leave as he did not want to work at Box Hill Police Station. The inspector’s statement said Senior Sergeant Cockerell was “unable to provide specific reasons why the Applicant did not want to work at Box Hill”.
88	Inspector May recollected that the Applicant was concerned how the change of workplace and of shifts would affect “his lifestyle”. He added: “the Applicant did not make any complaints of bullying or raise concerns about specific supervisors or officers with me in this meeting”.
89	When cross-examined, the inspector maintained that he had no recollection of the civil suit having been mentioned that day, even though it was mentioned in Acting Senior Sergeant Cockerell’s notes of the meeting.
Senior Sergeant Cockerell’s evidence 
90	Senior Sergeant Cockerell was officer in charge at Burwood Police Station in 2011. He provided a statement, gave evidence at the hearing and was cross-examined. He said he had no recollection of the Applicant saying the workplace at Box Hill Police Station was unsafe for him,or that his objection to working there was related to the civil suit against him or to anything following from that. He maintained that evidence when cross-examined.
91	When the Applicant was cross-examined about this, he said amongst other things: “we spoke about the civil suit… he knew about that and that was my issue.” He added “whether I felt comfortable about talking about Box Hill managers with him, um I don’t – I can’t recall”. 
92	Senior Sergeant Cockerell said he was aware that another member was on sick leave and that that member was a party to the same civil action as the Applicant, but he was not aware then or subsequently that the management at Box Hill Police Station was the cause of any stress or sick leave for Mr Fotinatos. 
93	When cross-examined, the senior sergeant maintained: “I in my mind can’t form that direct link, that not working at Box Hill relates to being sued civilly.” 
94	Senior Sergeant Cockerell acknowledged that his notes of the meeting recorded that the civil suit was mentioned in that meeting, which is different to Inspector May’s notes. He added however that it was not at the forefront of the discussion and would he thought have been part of a discussion of the Applicant’s welfare generally.
95	The evidence does not establish that Inspector May or anyone else was informed at that time that the reason the Applicant did not want to work at Box Hill Police Station was his perception that the management there were treating him or Mr Fotinatos badly or unfairly because of the 2006 incident and events which flowed from it. 
96	Senior Sergeant Cockerell recalled being told of the Applicant’s concerns about the civil suit, but the evidence did not establish that he was told it was the reason the Applicant did not want to work under the management at Box Hill Police Station.
97	Even if the evidence did show that the Applicant made clear that the civil suit (and associated circumstances) was the reason he did not want to work at Box Hill Police Station, it would not assist the Applicant’s claim in this proceeding. His claim is that the Respondents failed to make adjustments for his disability. The Applicant gave no evidence that in 2011 he told anyone that the fallout from the 2006 incident was making him ill. 
2014 direction to work from Box Hill Police Station 
The Applicant’s evidence  
98	The Applicant claimed that in directing him to work under the Box Hill Police Station management in 2014, the Respondents failed to make reasonable adjustments for his disability. 
99	To succeed in this claim, the Applicant had to show that the Respondents knew (or at the very least should have known) when they directed him to work under the management of Box Hill Police Station that he had a disability which made him unable to safely work under that management.
100	He said that leading up to his return from leave in 2014, he told Senior Sergeant Fleming in a phone conversation that: 
I would not be working at the Box Hill police station due to issues that I have had with their management and my current WorkCover claim that was being disputed. 
I will return to that evidence in considering the evidence of Inspector May and Senior Sergeant Fleming. 
101	The Applicant recorded two telephone calls he had with police officers around the time he was to return to work. One was with James Cooper (who was not called as a witness) and the other with Senior Sergeant Fleming. He transcribed both those calls and the transcript was produced. 
102	The Applicant agreed when asked that he did not say in either of those phone calls anything to the effect of “my doctor says I cannot work at Box Hill” and that he did nothing to make either Mr Cooper or Senior Sergeant Fleming aware he had a medical reason for not working at Box Hill Police Station.
The Second Respondent Inspector May   
103	Inspector May said that Mr Mulder had never raised with him any concerns about suffering from stress related to the 2006 incident or bullying as a result of that incident or any disability at all. 
104	The inspector also said  that the reasons for changing arrangements at Burwood Police Station in 2014 (so that it became a “shop front” police station) were related to the opening of a new police station at nearby Forest Hill and the lack of staff to resource Burwood Police Station full time.
105	He said Senior Sergeant Fleming told him on 16 September 2014 that Mr Mulder refused to work at Box Hill Police Station. When cross-examined, Inspector May said the senior sergeant did not mention anything to do with the Applicant’s WorkCover claim. The inspector recollected that the Applicant had been on carer’s leave and the discussion about working at Box Hill Police Station arose when he was about to return from that leave.
106	Inspector May agreed he knew of the WorkCover claim made in 2013 and had provided a statement about it in July 2013. In the statement, he acknowledged the reason for the claim was psychological injury. It said in part:
He alleges [the psychological injury] came about as a result of the incident of 2006 and the issues stemming from that including the civil matter and an alleged lack of support provided to him by his employer.
107	The statement went on to say that the inspector disagreed there had been a lack of support and expressed his opinion that another contributing factor was the resistance of some police officers including the Applicant to working inconvenient shifts at Burwood Police Station. 
108	This showed Inspector May knew in July 2013 of the Applicant’s claimed injury and had turned his mind to the reasons for it. However, it did not indicate that the inspector knew that the Applicant was particularly opposed to working under the management at Box Hill Police Station or that there was any medical reason for that opposition.
109	The inspector said that in 2014 he decided that Mr Mulder and another officer who was also opposed to working at Box Hill Police Station would be able to work at Burwood Police Station if they first called at Box Hill Police Station to collect their equipment. He said this was done to “appease” them.
110	The Applicant asked him whether the WorkCover claim was taken into account in this decision. The inspector answered that the arrangement for him to work from Box Hill Police Station but spend most of the day at Burwood Police Station was made for his benefit.
111	No evidence indicated that Inspector May knew or could have known that the Applicant’s WorkCover claim was about a disability making him unable to work under the Box Hill Police Station management.
112	It is unfortunate no one made the connection between the Applicant’s WorkCover claim and his unwillingness to work under the management at Box Hill Police Station. However, since Inspector May did not know at the relevant time that the Applicant had or claimed to have a disability which made him unable to work under Box Hill Police Station management, he cannot be said to have failed to make a reasonable adjustment for that disability.
The Third Respondent – Senior Sergeant Fleming 
113	Senior Sergeant Fleming provided a statement and was cross-examined. He was the senior sergeant in charge at Burwood Police Station from 15 July 2012 to 13 September 2014. He detailed how, in 2012, the Applicant told him of the civil litigation in which he was involved and explained he had become aware of its outcomes. 
114	The senior sergeant agreed when asked that when in 2012 the Applicant told him of the upcoming civil litigation and his concerns, he was surprised that there was no support in place for the Applicant and spoke to “welfare” about it and to “civil litigation or legal services” as well. His recollection was that he also sent an email to Inspector May.
115	Then, he said, Mr Mulder did not express to him any further concerns after the settlement of the civil suit, until May 2013, when he made a WorkCover claim. 
116	Senior Sergeant Fleming said he was aware from discussions over his time at Burwood Police Station that the Applicant had “perceived there to be issues with some of the longer serving supervisors from the Nunawading and Box Hill police stations”. He said the Applicant expressed concerns that they were attempting to over manage his performance because of their misconception that Burwood was an underperforming police station.
117	 Senior Sergeant Fleming said he followed up on this and stated “it is my recollection that on each occasion… I was always satisfied that… all the calls were in the course of the supervisor’s ordinary duties.” The Applicant disagreed with this evidence when it was put to him, saying “that’s not what he said to me”.
118	Neither of these slightly different versions of what occurred indicates that the Applicant gave the Respondents information about his psychological injury or how it was affecting his capacity to work under the Box Hill Police Station management. 
119	Senior Sergeant Fleming said that he asked Mr Mulder when he made the May 2013 WorkCover claim whether it was about the Box Hill Police Station supervisors and the Applicant told him that it was not about any current issues . The Applicant did not cross-examine him about that evidence and I had no reason to doubt it. 
120	The WorkCover claim form completed in 2013 did not say that Mr Mulder’s psychological injury made him unable to work at Box Hill Police Station. Even assuming it is true that the injury had that effect, there is no evidence that the claim form or any other document provided to the Respondents before the direction was given in September 2014 alerted them to that fact. 
121	Senior Sergeant Fleming said that the Applicant was on carer’s and paternity leave from 7 April 2014 to 29 August 2014. He was due to return to work after that.
122	I was not able to conclude from any of the evidence that Senior Sergeant Fleming knew or should have known at that point that the Applicant had a disability which required that he not be sent to work under the management of Box Hill Police Station. 
123	On 16 September 2014, the senior sergeant spoke on the phone to the Applicant about returning to work and the fact he would be working under Box Hill Police Station management. He said the arrangements were for the Applicant to collect his equipment at Box Hill Police Station then go to Burwood Police Station. He would also have some shifts on the police van. The Applicant had taped that call and the senior sergeant produced a transcript of it. He agreed that the transcript of the call was an accurate record. 
124	I have listened to the recording. The Applicant indicated at the hearing that he made clear in the call that the reason he was not returning to work under Box Hill Police Station management was related to his disability. He may have intended to do that, or even been convinced he had done it, but viewed objectively the call does not convey that information. 
125	Senior Sergeant Fleming agreed that the Applicant had mentioned his WorkCover claim in the call but said he did not recall focussing on it. He also said that although he had received the claim back in 2013, he did not in September 2014 know what had happened in relation to it. 
126	Looking at the transcript, at 3.03 (which I presume is the time from the start of the call) the Applicant says “my issue is working at Box Hill…under that mana ..obviously my WorkCover issue umm comes under that umm you know.” 
127	A little later Senior Sergeant Fleming asks him “is that the staff and things” and the Applicant says, “I’ve spoken to you about this before, yeah it’s err you know the super the supervision there the supervision at Box Hill and Nunawading”. Later he says, “I don’t want to talk about specific people, but you know that I’ve had issues with err specific management at Box Hill and Nunawading”. Later he says, “I cannot work at those police stations”. 
128	After careful consideration, I could not conclude that the Applicant said anything in that conversation to indicate that the reason he did not want to work under Box Hill Police Station management was that working with them exacerbated a psychological injury.
129	In the conversation, the Applicant refers to previous conversations with Senior Sergeant Fleming about Box Hill Police Station management. There was no evidence that in any such conversation the Applicant had said that working under Box Hill Police Station management exacerbated a psychological injury. He had, according to the senior sergeant’s evidence, spoken of concerns that he was overmanaged, but had not said it was the cause of or related to a psychological injury.
130	Further, the Applicant had told the senior sergeant in 2013 that the WorkCover claim was not about any “current issues”. That worked against any suggestion that the senior sergeant should have understood the Applicant’s mention of his WorkCover claim as meaning that Box Hill Police Station management was either a cause of his injury or an aggravating factor for that injury. 
131	In cross-examination, Senior Sergeant Fleming made clear that he knew the 2013 WorkCover claim was about a psychological injury. However, that does not show he was told that the Applicant’s injury made him unable to work at Box Hill Police Station or under its management. The mention later in the conversation (at 7.31) that the Applicant would consider “other options” for a place to work does not shed light on the reason he would not work at Box Hill Police Station. There was no mention that the reason for not working at or under the management of Box Hill Police Station was medical or psychological injury.
132	Senior Sergeant Fleming said that “on or around” 29 September 2014, a certificate of capacity signed by the Applicant’s doctor was provided to Box Hill Police Station for the Applicant. A copy was attached to the witness statement of Janelle Klomp, injury management consultant, as set out below. That was the first time any medical evidence had been provided to the Respondents to say that the Applicant was unable to work at Box Hill Police Station because of an illness or injury. 
133	Perhaps, as the Applicant seemed to assume, the Respondents should have understood that his opposition to working at or under the management of Box Hill Police Station was something more than a mere personal preference for an easier life. I need not decide whether the evidence supports such a conclusion. The evidence does not however support the conclusion that the Respondents, in directing the Applicant to work under Box Hill Police Station management, failed to make reasonable adjustments for a disability. They had not been informed that the Applicant had a disability which made him unable to work safely under the Box Hill Police Station management.
134	An employee who requires reasonable adjustments to his working conditions cannot assume the employer knows what adjustments are required and why. It is not enough that Mr Mulder let it be known that he would not work under Box Hill Police Station management or that he was open to working elsewhere. That did not inform his employer or managers that he needed an adjustment (to the place where he was to work) because of a disability. No evidence before me showed the Respondents had that information.
135	Accordingly, the claim that in directing the Applicant to work under Box Hill Police Station management the Second and Third Respondents discriminated against him by failing to make reasonable adjustments for his disability must fail.
The Fifth Respondent – Superintendent Watkins
136	The Applicant also claimed that the Fifth Respondent, Superintendent Richard Watkins, discriminated against the Applicant when he did not overturn the September 2014 direction. A failure to overturn the direction wold not have been not a breach of the Act unless the superintendent knew that the Applicant required an adjustment because of a disability.  
137	He said he had approved an arrangement for the Applicant to work at Burwood Police Station after collecting his equipment from Box Hill Police Station each day. He said that on 9 September 2014 he received a telephone call from Chris Kennedy of the Police Association saying that the Applicant did not want to work “at Box Hill Police Station” and that he had agreed to that, stipulating however that the Applicant was to collect his firearm from Box Hill Police Station.
138	He agreed when cross examined that under that arrangement the Applicant would have been administratively supervised from Box Hill Police Station. He also said when asked about the roster that it would have been negotiable so that the Applicant did not have to work shifts at Box Hill Police Station.
139	Superintendent Watkins in his statement said he had not contacted the Applicant directly because he understood the Applicant did not want contact from Victoria Police personnel. He said he had some communications with the Police Association about the Applicant but could not recall why those never progressed very far. 
140	The Applicant called Luke Oliver of the Police Association, who had been involved in representing the Applicant in September 2014. Mr Oliver shed little light on why his discussions about arranging for the Applicant to return to work had not proceeded. He appeared to understand that the Applicant did not “feel safe” to work under Box Hill Police Station management but there was no evidence he conveyed that knowledge to the Respondents. 
141	There was no evidence Superintendent Watkins knew that the Applicant’s position was that because of his psychological injury he could not work under the management of Box Hill Police Station. Neither was there any evidence that the superintendent was asked to make an adjustment to work requirements to accommodate the Applicant’s psychological injury. Accordingly, his failure to overturn the direction that the Applicant work under Box Hill Police Station management was not a failure to make reasonable adjustments for a disability.
142	Since the evidence does not establish that giving or maintaining the direction to the applicant to return to work under Box Hill Station management in September 2014 was a breach of the Act by any member of Victoria Police, it follows that the First Respondent has not breached the Act either. 
Events after 16 September 2014
143	The Applicant also claimed that the First Respondent Victoria Police, the Fifth Respondent Superintendent Watkins and the Fourth Respondent Ms Klomp subsequently failed to make reasonable adjustments for his disability so that he could return to work.
144	Ms Klomp made a statement dated 26 September 2019 and was cross-examined about it. In her statement, she said she was at the relevant time an injury management consultant with Victoria Police. Ms Klomp said that about 13 October 2014, Senior Sergeant Fleming told her the Applicant had been certified fully unfit for duty. Ms Klomp in fact altered her statement to say that at the hearing. Previously it had said “not fit to perform work tasks at Box Hill police station”.
145	Ms Klomp said she made the change to be more consistent with her file notes made at the time, which were attached to her statement. I was satisfied that the notes said “certified unfit for duties”.
146	Further, the Applicant’s various certificates of capacity, attached to Ms Klomp’s statement, were consistent with this. The certificate dated 9 October 2014 certified that from 29 September to 13 October 2014, the Applicant was “unfit for any duties”, although in the “work restrictions” column, it added: “not fit to perform any work tasks at Box Hill Police Station”. The 13 subsequent certificates covering the period to 2 December 201, carried the same note. After that it did not appear. There were further certificates covering the period to 17 October 2017. 
147	Ms Klomp said that Senior Sergeant Fleming told her that on the Applicant’s return to work he was to man the shop front of the Burwood Police Station on day shifts and perform other duties approximately three shifts per fortnight, possibly a Burwood car shift. She added: 
As Senior Sergeant Fleming’s proposed adjustments were in line with the requirements of the Applicant’s certificate of Capacity, I considered that I did not need to engage in return to work planning at that time. 
148	In cross-examination, she said she understood this explanation fitted with the requirements on the certificate, namely, that the Applicant would not be working at Box Hill Police Station. I had no reason to doubt Ms Klomp’s evidence. It indicated that even at this point the Respondents were not made aware that the adjustment the Applicant required to be able to work at his job was that he not be working under the management at Box Hill Police Station. 
149	Accordingly, I could not find that Ms Klomp had failed to make reasonable adjustments to allow the Applicant to return to work. For the Applicant, it was not enough that he would be physically at Burwood Police Station most of the time. His position was that he was medically unable to work under Box Hill Police Station management. As I understand the evidence, that was never made clear to the Respondents. 
150	Regarding the Fifth Respondent, Superintendent Watkins, I note his evidence to which I have already referred. He did not communicate directly with the Applicant. He had some discussions with the Police Association about the Applicant not working at Box Hill Police Station, but those did not make clear to him that the Applicant, because of his psychological injury, was unable to work under the Box Hill Police Station management.
151	In hindsight, the outcomes would have been better if the Applicant had been clearer or someone had managed to understand his position. However, the fact that did not occur was not a breach of the Act. The Applicant’s requirements were not sufficiently obvious to make clear that he needed an adjustment to accommodate a disability and he did not tell the Respondents what he needed and why.
152	Ms Tu, injury management consultant with Victoria Police gave evidence about her involvement with the Applicant after she was notified of his 2015 WorkCover claim on 7 April 2015. 
153	Ms Tu said she contacted the Applicant immediately and left a telephone message. She said Senior Sergeant Fleming told her on 9 April 2015 that he had not spoken to the Applicant because the Applicant had requested he receive no contact from Box Hill Police Station management. When she spoke to the Applicant on 10 April 2015, he told her he did not want to discuss return to work at that time and preferred email contact.
154	Ms Tu said she spoke to Superintendent Watkins and he agreed that if the Applicant was only able to work outside Eastern Division then she should try to find work for him in another Division. Ms Tu emailed the Applicant seeking to speak about this with him and he again said he preferred email contact. On 28 April 2015, she emailed him seeking to progress return to work discussions at an alternative location but she received no reply. 
155	The Applicant mentioned in cross-examination of Ms Tu that he was puzzled that Ms Tu did not understand anything about his 2013 claim. That did not change the fact that Ms Tu made attempts to engage the Applicant in return to work options consistent with the recommendations of his doctor, and that she received no response.
156	Ms Tu explained that she received a report dated 2 June 2015 from the police medical officer that the Applicant had no current work capacity and would be reviewed in September 2015, by which time her involvement had ceased. 
157	I accepted Ms Tu’s uncontradicted evidence. I was satisfied that through her the First Respondent had made reasonable attempts to organise a place for the Applicant to work other than the place where his doctor said he was unable to work. 
158	The Respondents also called Dr Sullivan, police medical officer. Dr Sullivan was not the doctor who signed the final advice of the police medical officer dated 1 December 2015. That advice was signed by Dr Neil Tran who is no longer an employee of Victoria Police.
159	The advice certified the Applicant as “unfit for any duties”.
160	There was some discussion at the hearing of the fact that the Applicant (perhaps as part of an FOI application) had obtained a copy of this advice with an attachment which is not normally completed for a person who is certified unfit for any duties. However, I was satisfied that this had been completed or issued by mistake and was not part of the advice given by Dr Tran. 
161	The Applicant’s questions of Dr Sullivan raised the issue that he considered he should not have been referred to the police medical officer. However, the Applicant did not suggest that this advice from Dr Tran discriminated against him on the basis of his disability and that was not the tenor of the evidence.
162	In all, I could not find that the Respondents had breached the Equal Opportunity Act 2010 in their dealings with the Applicant following September 2014 and the claim that they failed to make reasonable adjustments for his disability is dismissed.
Discrimination based on association
163	In his final submissions, the Applicant emphasised his claim that he was discriminated against because of his association with James Fotinatos. He said he was targeted as a result of this association with his colleague from Box Hill Police Station who had attended the incident with him in 2006 and also been the subject of the civil claim in 2012. 
164	The Applicant said that, like him, Mr Fotinatos had suffered psychological injury because of “targeting” from the Box Hill Police Station management. The Applicant called Mr Fotinatos as a witness. Mr Fotinatos provided statements dated 14 May 2018 and 12 October 2018 and a later statement in reply (which was undated).
165	Mr Fotinatos’ evidence was that following the 2006 incident he was the target of ongoing harassment and bullying from the management at Box Hill Police Station and that this led to him suffering a psychological injury which has had a profound effect on him. 
166	He provided details about his injury. The Respondents suggested I should not accept this as being evidence that he had a disability, since no evidence was available from his doctors. However, there was no need for me to make a finding about whether Mr Fotinatos had a disability. 
167	The Applicant’s claim was that the Respondents had discriminated against him on the basis of his association with Mr Fotinatos, identified as a person with a protected attribute.
168	Section 6 of the Act sets out the protected attributes under the words “the following are the attributes on the basis of which discrimination is prohibited…” and the last of them is:
(q)	personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
169	Thus, the Applicant needed to show that the alleged discrimination against him because of his personal association with Mr Fotinatos was based on Mr Fotinatos being identified as having a disability, or some other protected attribute. The Applicant’s pre-hearing documents did not set out this claim clearly, but no other protected attribute was suggested as the “personal association” basis.
170	There was no evidence that any of the Respondents identified Mr Fotinatos as having a disability, although some may have been aware that he was on sick leave or stress leave. 
171	The Applicant said he was afraid of receiving, and in his view did receive, the same “bullying” and “targeting” treatment as Mr Fotinatos had received from the Box Hill Police Station management. That treatment, in the evidence of each of them, they saw as flowing from the 2006 incident and subsequent litigation. Neither of them gave evidence suggesting that Mr Fotinatos was discriminated against because of a disability (or any other protected attribute) or that Mr Mulder was discriminated against because Mr Fotinatos had a disability (or any other protected attribute). 
172	The Applicant may be correct in his view that he and Mr Fotinatos were treated badly when they were not at fault. That is not for me to decide. My task is to determine whether the evidence shows that the Respondents discriminated against the Applicant in breach of the Equal Opportunity Act 2010. I could not draw that conclusion from any of the evidence before me. This remaining aspect of the claim is also dismissed.
Conclusion
173	The entire claim under the Equal Opportunity Act 2010 is therefore dismissed. 

B. Steele
Senior Member