Correy v St Joseph's Hospital Ltd

Set aside by Appeal:

CITATION:	Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Kathryn Correy RESPONDENT St Joseph’s Hospital Ltd
FILE NUMBER:	061003
HEARING DATES:	4-5 September 2006
SUBMISSIONS CLOSED:	16 March 2007
DATE OF DECISION:	10 May 2007
BEFORE:	Britton A - Deputy President; O'Sullivan M - Non Judicial Member;
CATCHWORDS:	Carers' Responsibility Discrimination - in work - Sex Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
CASES CITED:	Bonella v Wollongong City Council [2001] NSWADT 194 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner of Police v Mooney (No.2) [EOD] [2003] NSWADTAP 67 Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3 Illawarra County Council v Federated Municipal Employees’ Union of Australia (1985) 11 IR 18 Jones v Dunkel (1959) 101 CLR 298 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Purvis v New South Wales (2003) 217 CLR 92 Regina v Ronen & Ors [2005] NSWSC 320 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Sivananthan v Commissioner of Police [2001] NSWADT 44 Thomson v Orica Australia [2002] FCA 939 Weissensteiner v The Queen (1993) 178 CLR 217 Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761
REPRESENTATION:	APPLICANT E Brus, barrister RESPONDENT P Newell, barrister
ORDERS:	1. The complaint of discrimination on the ground of responsibilities as a carer is substantiated; 2. The complaint of discrimination on the ground of sex is dismissed; 3. The complaint of victimisation is substantiated; 4. The Respondent to pay the Applicant the sum of $26,121 within 28 days.

1 Shortly before she was due to return from maternity leave, Enrolled Nurse, Kathryn Correy, discovered that she had not been rostered to work in the Palliative Care Unit of St Joseph’s Hospital, Auburn where she wished to work and had been working for close to a decade. Ms Correy contends that the Hospital’s refusal to return her to palliative care constitutes discrimination on the grounds of gender and carer’s responsibility. She also argues that the subsequent decision to roster her to work in a closed psychiatric ward, which she claimed she could not work for health reasons, amounted to victimisation.

2 The Hospital contends that the complaint is misconceived. It argues that neither Ms Correy nor, indeed, any other member of its nursing staff had a ‘right’ to work in any particular ward. Ms Correy’s position, it argues, was that of ‘enrolled nurse’ not, as she contended, ‘enrolled nurse-palliative care’. It claims that the decision not to roster Ms Correy in palliative care had…