Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Firth v Coles Supermarkets Australia Pty Ltd [2022] NSWCATAD 156 Hearing dates: 21-24 February and 5 April 2022 Date of orders: 18 May 2022 Decision date: 18 May 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: H J Dixon SC, Senior Member
Prof J Goodman-Delahunty, General MemberDecision: Application dismissed
Catchwords: ANTI-DISCRIMINATION – disability discrimination - s 49B(1)(a), 49D(2)(d) direct and indirect – victimisation – s 50 of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Cases Cited: Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Mercieca v IHG Hotels Management Group (Australia) Pty Ltd and Salter Brothers (Coogee Beach) Pty Ltd [2022] NSWCATAD 63
Purvis v New South Wales (Department of Education and Training) [2003] HCA 62
Texts Cited: None
Category: Principal judgment Parties: Alster Firth (Applicant)
Coles Supermarkets Australia Pty Ltd (Respondent)Representation: Counsel:
J Widjaja (Applicant)
A Gandar (Respondent)
File Number(s): 2020/00253308 Publication restriction: Nil
Reasons for decision
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Mr Alster Firth (the Applicant), commenced employment with Coles Supermarkets Australia Pty Ltd (the Respondent) on or about 25 October 2013 as an Online Delivery Driver, also known as a Customer Service Agent or CSA, and continues to remain in that employment.
-
The Applicant sustained a workplace injury on 20 May 2015. The injury was to the Applicant’s back, a disc desiccation with mild disc bulge.
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It is accepted by the parties in these proceedings that the workplace injury so sustained is a disability within the meaning of s 4 of the Anti-Discrimination Act 1977 (NSW) (the Act).
-
On 14 December 2019 the Applicant made a complaint to the Anti-Discrimination Board of NSW concerning certain incidents that occurred at his workplace and various complaints about the handling of those complaints by the Respondent.
-
Following the unsuccessful resolution of that complaint, and by leave of the Tribunal, the Applicant was permitted to amend the complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 31 August 2020 so as to incorporate additional complaints against the Respondent in respect of incidents during the period 1 August 2017 to 14 July 2020 which were then relied upon by the Applicant in points of claim filed by him dated 3 May 2021.
-
Counsel for the parties have, by agreement, and in a most helpful manner, dissected those complaints to particularise what may be described as “sub-claims” in relation to each of the points of claim as follows:
Sub-claim
Points of Claim paras
Alleged conduct
Alleged basis of claim
1.
3 – 7
Alleged repeated unreasonable behaviour by a colleague, Ms Carol Simon, between August 2017 and 22 November 2017.
Direct discrimination: ss 49B(1)(a) and 49D(2)(d)
2.
11 – 14
Alleged conduct by Ms Simon between 23 November 2017 and 14 December 2018 following a complaint of discrimination to Coles management on 22 and 23 November 2017
Direct discrimination: ss 49B(1)(a) and 49D(2)(d).
Victimisation: s 50.
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- Case
- [2022] NSWCATAD 156
- Decision Date
CaseChat Overview and Summary
The tribunal carefully examined the evidence and applicable law. It found that Firth had not provided sufficient evidence to establish that Coles had directly or indirectly discriminated against him on the basis of his disability. Furthermore, the tribunal concluded that Firth had not demonstrated that any adverse action he experienced was due to his disability. The tribunal dismissed Firth's application on the basis that he had not met the required standard of proof to substantiate his claims of disability discrimination and victimisation. Consequently, Firth's application was dismissed, and the tribunal made no further orders.
Orders
Orders of the court
Application dismissed
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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