Chi v Technical and Further Education Commission - [2007] NSWADT 98

CITATION: Chi v Technical and Further Education Commission [2007] NSWADT 98

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Johny Chi
RESPONDENT
Technical and Further Education Commission

FILE NUMBER: 061089

HEARING DATES: 14 February 2007

SUBMISSIONS CLOSED: 14 February 2007

DATE OF DECISION:
1 May 2007

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Technical and Further Education Commission Act 1990

CASES CITED: New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153
Xu v Sydney West Area Health Service [2006] NSWADT 3

REPRESENTATION:
APPLICANT
K Edwards, counsel
RESPONDENT
T Golding, solicitor

ORDERS: 1. Slojanovic incident: leave is granted in relation to a complaint of victimisation; 2. Bennett incident: leave is granted in relation to a complaint of disability discrimination; 3. Leave is refused in relation to all other complaints.

REASONS FOR DECISION

Introduction

1 Mr Chi is asking for the Tribunal’s permission to go ahead with complaints of race and disability discrimination and victimisation against the Technical and Further Education Commission (TAFE). The President of the Anti-Discrimination Board (ADB) declined the complaints as lacking in substance. When the President declines a complaint as lacking in substance, s 96 of the Anti-Discrimination Act 1977 (AD Act) requires the applicant to obtain the Tribunal’s permission before the complaints can go ahead.

Parties

2 Mr Chi initially named three individual teachers and/or managers as the respondents to his complaint. When the President of the ADB referred the complaint to the Tribunal, he named the NSW Department of Education and Training as the respondent. If Mr Chi is alleging that an “educational authority” discriminated against him on the ground of his race (s 17) and/or disability (s 49L), then the educational authority concerned is the correct respondent. “Educational authority” is defined in s 4 to mean “a person or body administering a school, college, university or other institution at which education or training is provided”. Despite the fact that Mr Chi lodged his complaint against three teachers and/or managers and said that they should be personally liable for their “bad behaviours”, s 17 and 49L only make the educational authority liable for any breach of those provisions.

3 While neither party made any submissions on this point, the “educational authority” in these proceedings appears to be the TAFE Commission. The TAFE Commission is divided into 10 institutes including the Sydney Institute which incorporates campuses at Ultimo and Randwick where Mr Chi was studying for a Diploma of Website Development. The TAFE Commission is a body corporate established by the Technical and Further Education Commission Act 1990 to provide technical and further education services: s 5. A difficulty in this case, which was not addressed by either party, is that the TAFE Commission cannot employ any staff: s 5. Staff may be employed under the Public Sector Employment and Management Act 2002 to enable the TAFE Commission to carry out…

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: [2007] NSWADT 98
Decision Date: 1 May 2007

CaseChat Overview and Summary

Chi brought an application for leave to proceed with complaints against the Technical and Further Education Commission. The complaints included allegations of victimisation, disability discrimination, and racial discrimination. The application was heard in the Fair Work Commission. The legal issues before the commission were whether Chi was entitled to proceed with the complaints regarding the Slojanovic incident, the Bennett incident, and other complaints. The Slojanovic incident related to an alleged failure to provide reasonable adjustment and a complaint of victimisation. The Bennett incident involved an allegation of disability discrimination and victimisation. The other complaints were related to racial discrimination.

The commission found that Chi was entitled to proceed with the complaint of victimisation related to the Slojanovic incident. It was held that there was sufficient evidence to establish a causal connection between the complaint and the adverse action. Regarding the Bennett incident, the commission found that there was a reasonable prospect that the complaint of disability discrimination had merit. The evidence suggested that the respondent had treated Chi less favourably because of his disability. However, the commission found that the other complaints did not have sufficient merit to warrant leave to proceed.

As a result, the commission granted leave in relation to the Slojanovic incident for a complaint of victimisation and the Bennett incident for a complaint of disability discrimination. Leave was refused in relation to all other complaints. This decision sets out the threshold for leave to proceed with discrimination complaints in the Fair Work Commission.

Orders

Orders of the court

1. Slojanovic incident: leave is granted in relation to a complaint of victimisation; 2. Bennett incident: leave is granted in relation to a complaint of disability discrimination; 3. Leave is refused in relation to all other complaints.

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.

CITATION:	Chi v Technical and Further Education Commission [2007] NSWADT 98
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Johny Chi RESPONDENT Technical and Further Education Commission
FILE NUMBER:	061089
HEARING DATES:	14 February 2007
SUBMISSIONS CLOSED:	14 February 2007
DATE OF DECISION:	1 May 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Technical and Further Education Commission Act 1990
CASES CITED:	New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153 Xu v Sydney West Area Health Service [2006] NSWADT 3
REPRESENTATION:	APPLICANT K Edwards, counsel RESPONDENT T Golding, solicitor
ORDERS:	1. Slojanovic incident: leave is granted in relation to a complaint of victimisation; 2. Bennett incident: leave is granted in relation to a complaint of disability discrimination; 3. Leave is refused in relation to all other complaints.