Abraham v Thomas

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ABRAHAM v THOMAS (Discrimination) [2020] ACAT 41

DT 13/2019

Catchwords:               DISCRIMINATION – whether the applicant had the protected attributes of disability or immigration status – whether the applicant was discriminated against on the basis of disability or immigration status – whether there was unfavourable treatment – whether there was a causal connection between the unfavourable treatment and the applicant’s protected attribute – damages for unfavourable treatment based on immigration status – claim of immigration based on disability dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 18, 21

Discrimination Act 1991 ss 5AA, 7, 8
Human Rights Commission Act 2005 ss 53CA, 53E

Cases cited:Kovac v The Australian Croatian Club Ltd [2014] ACAT 41

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v New South Wales (2003) 217 CLR 92

Tribunal:  Senior Member D Mulligan

Date of Orders:  15 June 2020

Date of Reasons for Decision:         15 June 2020

AUSTRALIAN CAPITAL TERRITORY          

CIVIL & ADMINISTRATIVE TRIBUNAL           DT 13/2019

BETWEEN:

NINUMOL ABRAHAM

Applicant

AND:

ROSE MARY THOMAS

Respondent

TRIBUNAL:     Senior Member D Mulligan

DATE:15 June 2020

ORDER

The Tribunal orders that:

1.The application under section 8(2) of the Discrimination Act 1991, relating to discrimination on the basis of disability is dismissed.

2.The application under section 8(2) of the Discrimination Act 1991, that the respondent directly discriminated against the applicant by treating the applicant unfavourably, namely requiring the applicant to work hours beyond that contracted without compensation and by requiring the applicant to participate in a cash back scheme, because of a protected attribute, namely her immigration status, is proved.

3.Pursuant to section 53E(2)(b) of the Human Rights Commission Act 2005, the respondent is ordered not to repeat the unfavourable treatment, referred to in order 2, in relation to any future employees:

4.Pursuant to section 53E(2)(c) of the Human Rights Commission Act 2005 the respondent to pay the applicant the sum of $17,940.92.

………………………………..

Senior Member D Mulligan

REASONS FOR DECISION

1.The applicant in this matter, Ms Ninumol Abraham, is originally from Malayland in India.

2.By profession she is a chef specialising in Indian cuisine.

3.In late 2017, the applicant and her family were living in Auckland, New Zealand, where the applicant was working as a chef.

4.In October 2017, the respondent, Ms Rose Thomas, owned a restaurant known as Binnys Kathitto (the restaurant), which was located at 5 Lonsdale Street, Braddon, ACT.

5.The respondent was assisted in running the restaurant by her husband, Mr Binny Babu.

6.On or about October 2017, the respondent and her husband concluded that they needed to employ another chef, one who had specific skills in cooking South Indian cuisines; which especially includes dosa and parotta.

7.By January 2018, Ms Thomas and Mr Babu had decided to employ Ms Abraham.

8.Ms Thomas wrote to the Department of Immigration and Border Protection seeking to sponsor Ms Abraham on a subclass 457 visa.

9.On or about…