Applicant 201943 v The School - [2021] ACAT 3

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

APPLICANT 201943 v THE SCHOOL (Discrimination) [2021] ACAT 3

DT 43/2019
Catchwords: DISCRIMINATION – interim application – strike out – identification of discrimination – protected attribute – whether applicant was employed by the respondent – admissibility of evidence produced in the process of mediation or conciliation – confidentiality – without prejudice – strike out application accepted – application wholly dismissed pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 32, 55A
Court Procedures Act 2004 s 52B
Discrimination Act 1991 ss 4AA, 8, 11, 68, dictionary
Human Rights Commission Act 2005 ss 53A, 53C
Liquor Act 2010 s 20
Workplace Health and Safety Act 2011 s 7

Cases cited:Australian Capital Territory v Wang [2019] ACAT 65
Cheluvappa v University of Canberra [2018] ACAT 108
Gindy & Chief Minister and ACT Government and Ors [2011] ACAT 67

Tribunal:  Presidential Member H Robinson
Date of Orders:  21 January 2021
Date of Reasons for Decision:         21 January 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 43/2019

BETWEEN:
APPLICANT 201943
Applicant

AND:
THE SCHOOL
Respondent

TRIBUNAL: Presidential Member H Robinson

DATE:21 January 2021

ORDER

The Tribunal orders that:

1.The application be wholly dismissed under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..
Presidential Member H Robinson

REASONS FOR DECISION

1.By way of interim application dated 18 May 2020, the respondent seeks to have this application struck out as being without substance. This is my decision on that interim application.

Background

2.The applicant to the substantive proceeding has many years’ experience as a volunteer cricket coach with a Cricket Club (CC), a sporting club associated with a school (the School), a secondary school operated by the respondent. The applicant claims that the respondent discriminated against him on the grounds of religious conviction and disability when it denied him the opportunity to participate in coaching, either as previously undertaken or at all. He also claims that he has been victimised because he previously made a complaint under the Discrimination Act.

Procedural history and interim application

3.The applicant has been a volunteer cricket coach with the CC since the 2010/11 cricket season. He takes this role very seriously. Relevantly to these proceedings, he believes that engagement with the community through charitable actions, such as coaching cricket, is an essential tenant of his faith.
4.The applicant says that in around 2018 or 2019 his ‘zeal’ as a coach began to ‘bother’ some school staff. He begun to feel excluded from the CC and the School, and representatives of both discouraged him from undertaking the additional activities associated with the club. In early 2019 he made a complaint to the ACT Human Rights Commission (HRC). The complaint was later referred to the Tribunal (DT 4/2019) (the previous proceeding). The matter was settled at mediation and the parties entered into a signed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACAT 3
Decision Date: 21 January 2021

CaseChat Overview and Summary

The case before the ACT Civil and Administrative Tribunal was brought by the applicant, who sought relief on the basis of alleged discrimination. The respondent, The School, opposed the application, arguing that it should be dismissed. The matter was heard by Presidential Member H Robinson, who was tasked with determining the admissibility of evidence and the confidentiality issues surrounding the case. The applicant sought to present evidence gathered during mediation and conciliation processes, which the respondent claimed was confidential and inadmissible. The core issue before the tribunal was whether the applicant could proceed with her discrimination claim without disclosing the protected evidence and whether the applicant had indeed been employed by the respondent, a fact that the respondent denied.

The legal issues addressed by the tribunal included the admissibility of evidence produced in the process of mediation or conciliation and the protection of such evidence under confidentiality agreements. The tribunal had to consider whether the applicant could proceed with her discrimination claim without disclosing the confidential evidence and whether the applicant had indeed been employed by the respondent. The respondent argued that the evidence was protected by confidentiality and without prejudice communications, and thus, should not be admissible. The applicant, on the other hand, contended that the evidence was necessary to establish her case and that she had been employed by the respondent, which was a critical element of her discrimination claim.

Presidential Member H Robinson concluded that the application to proceed with the discrimination claim without disclosing the confidential evidence should be struck out. The tribunal found that the evidence in question was protected by confidentiality and without prejudice communications, and therefore, it could not be admitted. Furthermore, the tribunal determined that the applicant had not provided sufficient evidence to establish that she had been employed by the respondent. Consequently, the tribunal wholly dismissed the application under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008. The applicant’s request to proceed with her discrimination claim without disclosing the confidential evidence was denied, and the application was dismissed in its entirety.

Orders

Orders of the court

ORDER

The Tribunal orders that:

1. The application be wholly dismissed under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.

………………………………..

Presidential Member H Robinson

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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