Firth v Coles Supermarkets Australia Pty Ltd

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 Member

Decision:

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

1. 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.

2. 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.

3. 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).

4. 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.

5. 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.

6. 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.