Fletcher v TNT Australia Pty Ltd - [2011] NSWADT 175

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Fletcher v TNT Australia Pty Ltd [2011] NSWADT 175
Hearing dates: 5 July 2011
Decision date: 19 July 2011
Jurisdiction: Equal Opportunity Division
Before: Magistrate N Hennessy, Deputy President
Decision:
Leave is refused for the Applicant's complaint of race discrimination against the Respondent to proceed

Catchwords: LEAVE - complaint of race discrimination in employment declined as lacking in substance by President of Anti-Discrimination Board - whether fair and just for it to proceed
Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17
Jones and Anor v Ekermawi [2009] NSWCA 388
Martin v McKensey (No 2) [2003] NSWADT 126
O'Callaghan v Loder [1983] 3 NSWLR 89
Category: Interlocutory applications
Parties: Robin Fletcher (Applicant)
TNT Australia Pty Ltd (Respondent)
Representation: Mr R Fletcher (Applicant - in person)
Ms L Brown (Respondent - agent)

File Number(s): 111040

REasons for decision

Background

EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): The issue in these proceedings is whether the Tribunal should give Mr Fletcher permission for his complaint of race discrimination, under the Anti-Discrimination Act 1977 ( AD Act ) to proceed. The complaint, which is against his former employer TNT Australia Pty Limited, was declined by the President of the Anti-Discrimination Board.

Leave to proceed necessary

The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint is frivolous, vexatious, misconceived or lacking in substance. In this case I have decided to refuse leave for each of the complaints to proceed.

Background

Mr Fletcher is from Brazil. He started working with the Respondent as a dockhand in 2005 and resigned in August 2010. The period covered by the complaint is 21 July 2009 to 21 July 2010. I have not taken into account several allegations which relate to events prior to that period including that Mr Fletcher was underpaid and that the Compliance Manager spelt his name incorrectly in a letter sent to him. Because the complaint is against Mr Fletcher's former employer, I have disregarded any complaint about the conduct of union officials or anyone else who was not employed by the Respondent at the relevant time.

Denial of payment for parental leave

When he inquired about his entitlement to paid paternity leave, Mr Fletcher says that he was initially told that he was entitled to one weeks' paid leave. However, after submitting the relevant form, he was told that he was not entitled…

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.

Continue reading Fletcher v TNT Australia Pty Ltd

Details

AGLC: Fletcher v TNT Australia Pty Ltd [2011] NSWADT 175
Case: [2011] NSWADT 175
Decision Date: 19 July 2011

CaseChat Overview and Summary

The case of Fletcher v TNT Australia Pty Ltd involves a complaint by the Applicant, Fletcher, against the Respondent, TNT Australia Pty Ltd, regarding an alleged incident of race discrimination in the workplace. Fletcher sought to have the complaint heard by the Anti-Discrimination Board, but the President of the Board declined to grant leave for the complaint to proceed. The Applicant then appealed the President's decision to the Civil and Administrative Tribunal, seeking leave for the complaint to proceed on the basis that the President's decision was incorrect and should be overturned.

The primary legal issue before the Tribunal was whether the President's decision not to grant leave for the complaint to proceed was fair and just. This required the Tribunal to consider whether the complaint had sufficient substance to warrant a hearing before the Board. The Tribunal needed to determine whether the facts alleged by Fletcher were sufficient to establish a prima facie case of race discrimination under the Anti-Discrimination Act.

The Tribunal found that the President's decision was fair and just and refused leave for the complaint to proceed. The Tribunal held that the complaint lacked sufficient substance as it did not establish a plausible case of race discrimination. The Tribunal noted that the facts alleged did not provide a clear and coherent account of the alleged discriminatory conduct, and the evidence was insufficient to support the claim. The Tribunal concluded that the complaint was not worthy of further investigation and did not warrant a hearing before the Board. As such, the Tribunal upheld the President's decision and refused leave for the complaint to proceed.

In summary, the Tribunal found that the President's decision not to grant leave for the complaint to proceed was fair and just, and the complaint lacked sufficient substance to warrant a hearing before the Board. The Tribunal refused leave for the complaint to proceed.

Orders

Orders of the court

Leave is refused for the Applicant's complaint of race discrimination against the Respondent to proceed

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.

Medium Neutral Citation:	Fletcher v TNT Australia Pty Ltd [2011] NSWADT 175
Hearing dates:	5 July 2011
Decision date:	19 July 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave is refused for the Applicant's complaint of race discrimination against the Respondent to proceed
Catchwords:	LEAVE - complaint of race discrimination in employment declined as lacking in substance by President of Anti-Discrimination Board - whether fair and just for it to proceed
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 Jones and Anor v Ekermawi [2009] NSWCA 388 Martin v McKensey (No 2) [2003] NSWADT 126 O'Callaghan v Loder [1983] 3 NSWLR 89
Category:	Interlocutory applications
Parties:	Robin Fletcher (Applicant) TNT Australia Pty Ltd (Respondent)
Representation:	Mr R Fletcher (Applicant - in person) Ms L Brown (Respondent - agent)
File Number(s):	111040