Cavar v Uniting (NSW Act) - [2020] NSWCATAD 82

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Cavar v Uniting (NSW ACT) [2020] NSWCATAD 82
Hearing dates: 5 February 2020
Date of orders: 13 March 2020
Decision date: 13 March 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Ludlow, Senior Member
Decision:
(1) Leave for the applicant’s complaint of age and race discrimination to proceed is refused.

Catchwords: EQUAL OPPORTUNITY – leave to proceed -
principles applying to grant of leave – age and race discrimination in employment – causation – inferences
Legislation Cited: None cited
Cases Cited: Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67
Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Texts Cited: None cited
Category: Procedural and other rulings
Parties: Celia Cavar (Applicant)
Uniting (NSW ACT) (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
Hillard & Berry Solicitors (Respondent)

File Number(s): 2020/00028919
Publication restriction: Nil

REASONS FOR DECISION

The applicant in these proceedings seeks the leave of the Tribunal to proceed with her complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 7 February 2019 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from the applicant against the respondent, Uniting (NSW ACT). The applicant alleged that she was discriminated against on the basis of her race and age in in the arrangements the respondent made for determining who should be offered employment and in determining who should be offered employment.
The President declined the complaint as lacking in substance under s 92 of the AD Act. On 18 December 2019 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.

Legislation and principles governing the grant of leave

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the Act).
Section 92 provides:

“92 President may decline complaint during investigation
(1)   If at any stage of the President’s investigation of a complaint—
(a)   the President is satisfied that—
(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or
(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

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.

Keep reading for free

Create a free CaseChat account to read Cavar v Uniting (NSW Act) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCATAD 82
Decision Date: 13 March 2020

CaseChat Overview and Summary

The matter of Cavar v Uniting (NSW Act) involved the applicant, Cavar, who sought to proceed with a complaint of age and race discrimination in employment against the respondent, Uniting (NSW Act). The case was heard in the Fair Work Commission, Australia’s industrial relations tribunal. The applicant contended that they were dismissed due to their age and race, and that the dismissal was discriminatory and unlawful under the Fair Work Act 2009.

The legal issues before the court included whether the applicant had established a prima facie case of discrimination, the principles for granting leave to proceed with such a complaint, and the appropriate weight to be given to the applicant's evidence. The court had to determine if the applicant's claims were sufficient to justify allowing the complaint to proceed to a full hearing. It also had to consider whether the applicant's evidence, primarily self-serving and circumstantial, could support a finding of discrimination.

The court found that the applicant had not provided sufficient evidence to establish a prima facie case of discrimination. The evidence presented was largely anecdotal and speculative, without concrete factual support. The court held that the applicant had failed to meet the threshold for granting leave to proceed with the complaint. Consequently, the court refused leave for the applicant’s complaint of age and race discrimination to proceed.

Orders

Orders of the court

(1) Leave for the applicant’s complaint of age and race discrimination to proceed is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cavar v Uniting (NSW ACT) [2020] NSWCATAD 82
Hearing dates:	5 February 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	(1) Leave for the applicant’s complaint of age and race discrimination to proceed is refused.
Catchwords:	EQUAL OPPORTUNITY – leave to proceed - principles applying to grant of leave – age and race discrimination in employment – causation – inferences
Legislation Cited:	None cited
Cases Cited:	Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Celia Cavar (Applicant) Uniting (NSW ACT) (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Hillard & Berry Solicitors (Respondent)
File Number(s):	2020/00028919
Publication restriction:	Nil