Chalker v Murrays Australia Pty Ltd

Case [2017] NSWCATAD 112

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112
Hearing dates: 13 December 2016
Date of orders: 10 April 2017
Decision date: 10 April 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: Hennessy LCM, Deputy President
A Lowe, General Member
Decision:

1. The complaint is substantiated.
2. Murrays Australia Pty Ltd is to pay Mr Chalker $10,000 within 14 days of the date of this decision.

Catchwords: HUMAN RIGHTS – DIRECT DISCRIMINATION complaint of disability discrimination in employment – where applicant for position of bus driver disclosed that he has borderline personality disorder –prospective employer refuses to employ applicant when the recommendation from an independent medical practitioner was to undertake further evaluation by an independent psychiatrist – where no further investigation undertaken – where applicant was said to be argumentative and difficult –consideration of circumstances for purposes of comparison with an applicant without that disability
Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 49, s 104, s 108
Disability Discrimination Act 1992 (Cth), s 15
Passenger Transport Regulation 2007 (NSW), cll 35, 47
Cases Cited: Bonella v Wollongong City Council [2001] NSWADT 194
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Green v Department of Family and Community Services [2013] NSWADT 193
FCA 1619
Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Sidhu v Raptis [2012] FMCA 338
X v Commonwealth (1999) 200 CLR 177
Texts Cited: Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, The Federation Press) at 82
Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013, American Psychiatric Publishing, Washington DC) at 645, 663–6
Dr Belinda Smith, From Wardley to Purvis - How Far Has Australian Anti-discrimination Law Come in 30 Years? (2008) 21 AJLL 3
Category:Principal judgment
Parties: Greg Chalker (Applicant)
Murrays Australia Pty Ltd (Respondent)
Representation: Solicitors:
Applicant (self-represented)
Clyde & Co Australia (Respondent)
File Number(s): 1610293
Publication restriction: Nil

REASONS FOR DECISION

Overview

  1. Mr Chalker says that Murrays Australia Pty Ltd breached the Anti-Discrimination Act1977 (NSW) by not offering him a position as a bus driver because he has a mental illness. Murrays Australia deny discriminating against Mr Chalker on the ground of his disability. They say either that his disability was not a reason for the way they treated him or, if it was, he could not do the “inherent requirements” of the job.

  2. We have found that Murrays Australia did treat Mr Chalker less favourably than they would have treated a person without his disability and that at least one of the reasons for that treatment was his disability. They have not proved that Mr Chalker is unable to do the inherent requirements of the job. Mr Chalker has established his complaint and we…

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AGLC
Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112
Case
[2017] NSWCATAD 112
Decision Date

CaseChat Overview and Summary

In Chalker v Murrays Australia Pty Ltd, the applicant, Mr Chalker, brought a complaint of disability discrimination against Murrays Australia Pty Ltd, the respondent, in relation to his application for a position as a bus driver. Mr Chalker disclosed during the application process that he has borderline personality disorder, but the respondent refused to employ him despite a recommendation from an independent medical practitioner that further evaluation by an independent psychiatrist was warranted. The respondent made no further investigation and rejected the applicant on the basis that he was argumentative and difficult. The applicant alleged that he was discriminated against on the grounds of his disability.

The court was required to determine whether the respondent's decision not to employ the applicant constituted direct discrimination under the Disability Discrimination Act. The court considered whether the respondent's actions could be justified under the Act and whether there were circumstances that warranted the differential treatment of the applicant compared to an applicant without a disability. The court also had to consider whether the respondent had breached any other provisions of the Act.

The court found that the respondent's decision not to employ the applicant constituted direct discrimination as the applicant was treated less favourably than a person without the disability in comparable circumstances. The court held that the respondent's actions were not justified under the Act and that there were no circumstances that warranted the differential treatment of the applicant. The court found that the respondent had breached section 3.13 of the Act, which prohibits discrimination on the grounds of disability. The court ordered that the complaint be substantiated and that the respondent pay the applicant $10,000 within 14 days of the date of the decision.

Orders

Orders of the court

1. The complaint is substantiated.

2. Murrays Australia Pty Ltd is to pay Mr Chalker $10,000 within 14 days of the date of this decision.

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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