Court victory for drug-tested gay cops
Four gay NSW Police officers were "subjected to unlawful discrimination" when a baseless complaint saw them drug tested because of their sexuality, a tribunal has found.
Christopher Sheehy, Shane Housego, Christian McDonald and Steven Rapisarda were all serving in the force in Sydney's inner west in May 2015 and openly identified as homosexual.
Senior Constable Housego was in a domestic relationship with Senior Constable Rapisarda.
The four men gave evidence before the NSW Civil and Administrative Tribunal in late 2017 of conduct by colleagues that they suggested demonstrated a "homophobic culture" at Newtown Local Area Command under the watch of Superintendent Simon Hardman.
Constable Sheehy told the tribunal common terminology used at the station included "poofter", "homo" and "gay as AIDS".
He said Newtown police would avoid attending the Imperial Hotel in nearby Erskineville because it was known as an LGBTQI-friendly bar.
He said some statements referred to the presence of "trannies" and "guys in arseless chaps".
Sen Constable Rapisarda testified that when other officers talked about victims and offenders, he heard references to "gay c***s", "lezzo" and "faggot".
He said an effeminate man who once came in to report an assault had been crying but later had his voice mimicked and was laughed about.
Sen Constable Rapisarda also gave evidence that Inspector Michael Dykes said things to him such as "hurry up Rapisarda, get your skirt on" and "you big girl" in front of other staff.
All four men claimed they were targeted for investigation, including drug testing, because they are homosexual men.
They claimed the drug investigation exposed them to ridicule, abuse, bullying and harassment, concocted criminal allegations and fabricated evidence against them, and failed to afford them a safe workplace.
Supt Hardman lodged an official complaint with NSW Police in May 2015 after a fifth male officer, also homosexual, returned a positive result for ecstasy and speed from a hair sample.
He said he couldn't justify seeking targeted drug testing of anyone in the group of gay men.
But he had a "genuine concern" they were involved in recreational and illegal drug use due to regular attendance at bars such as "well-known gay venue" Stonewall Hotel on Oxford St.
He said he retained this concern despite conceding it was "even in the absence of evidence".
Their leave days around events such as Mardi Gras were also scrutinised by Supt Hardman.
In the complaint, he said three of the five officers were "notorious for their promiscuity".
"Drug use is thought to be fundamental in such indiscriminate sexual encounters," he said.
The management team handling Supt Hardman's complaint recommended it be investigated.
The other four officers were drug tested in the following months, returning negative results.
A report in December 2015 concluded the allegations against them had not been sustained.
The men each testified about the distress they had experienced upon learning of the complaint.
Counsel for NSW Police did not suggest that Supt Hardman wasn't the author of the complaint and he did not give evidence before the tribunal.
One inspector gave evidence that there is an expectation and obligation on all sworn police officers to come forward with any suspicions they may have about police officer misconduct, as "enshrined" in the force's code of conduct.
The NCAT today ruled the four officers were "presumed to be engaged in drug use by reason of their homosexuality" and found their complaints of unlawful discrimination "substantiated".
"The proposition that the complaint was lodged against the applicants by reason of their homosexuality is at least suggested by Supt Hardman's choice of words, that is "homosexual like-minded Newtown Police" and references to promiscuity, loose morals and reckless behaviours," the judgment states.
The tribunal found the inclusion of all four officers in the complaint and the commander's choice of words inferred he was "motivated, consciously or unconsciously, to make complaints … by reason of their homosexuality".
"We are comfortably satisfied that a heterosexual police officer, even one believed to be "notorious for his promiscuity", would not on that basis have been made the subject of a complaint," the NCAT said.
"We find that Supt Hardman's preparation and submission of the complaint did take place on the ground of the applicants' homosexuality."
However, the tribunal said the evidence had not established the existence of a culture of bullying and harassment towards all or any of the officers on the basis of them being gay.
It said the evidence had referred to "isolated incidents over a number of years" and, while not to be condoned, did not amount to unlawful discrimination on the grounds of homosexuality.
In response to a request from news.com.au for comment, a police spokeswoman today said: "The NSW Police Force is reviewing the decision handed down by the NSW Civil and Administrative Tribunal today and is considering its response".
The case will return to court on December 10 when matters such as awarding damages and any other "remedy" will be addressed.