Hunter v Deerubbin Local Aboriginal Land Council - [2011] NSWADT 202

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Hunter v Deerubbin Local Aboriginal Land Council [2011] NSWADT 202
Hearing dates: 25 and 26 February 2010, 28 and 30 July 2010
Decision date: 24 August 2011
Jurisdiction: Equal Opportunity Division
Before: E Grotte, Judicial Member
L Monaghan-Nagle, Non judicial member
M O'Sullivan, Non judicial member
Decision:
1. The complaint of unlawful discrimination on the ground of disability is substantiated.
2.The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision.

Catchwords: Disability Discrimination in Employment; Aboriginal Local Land Council; Epilepsy
Legislation Cited: Anti- Discrimination Act 1977
Administrative Decisions Tribunal Act (NSW) 1997
Aboriginal Land Rights Act (NSW) 1983
Evidence Act 1995
Cases Cited: Qantas Airways -v- Gama (2008) FCAFC 69
St Joseph's Hospital Ltd -v- Correy (2009) NSWADTAP
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis -v- State of New South Wales (2003) 217 CLR 92
Laycock -v- Commissioner of Police (2006) NSWADT 261
Briginshaw -v- Briginshaw (1938) HCA 34; (1938) 60 CLR 336
Dutt -v- Central Coast Area Health Service (2002) NSWADT 133
Henville -v- Walker (2001) 206 CLR
Commissioner of Police, NSW Police -v- Mooney (No.3) (2004) NSWADTAP 22
Category: Principal judgment
Parties: Danial Hunter (Applicant)
Deerubbin Local Aboriginal Land Council (Respondent)
Representation: Counsel:
M Tibbey (Applicant)
K Eastman (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Chalk & Fitzgerald (Respondent)

File Number(s): 081053

REasons for decision

Background and the Complaint to the Anti-Discrimination Board

On 29 December 2005 the Anti-Discrimination Board (ADB) received a complaint of discrimination in employment against Deerubbin Local Aboriginal Land Council (The Council, Deerubbin or the respondent) from Danial Hunter (the applicant). The complaint was stated to be as follows:

"I believe that I have been discriminated against because of my disability. I suffer from Grand Mal Epilepsy, this causes me to have epileptic seizures. I have been working casual hours for Deerubbin Aboriginal Land Council for approximately 2-3 years. I went to work on Monday 17 th October 2005 and was told there would be work up until Christmas if I wanted it, so I said yes but then on Wednesday 19 th October 2005 after work, I was at home & had 2 epileptic seizures I was admitted to Mount Druitt Hospital & stayed overnight. Due to the epilepsy I suffer short term memory loss but as my position at the Land Council was only a Land Surveyor/Looking for Aboriginal Artefacts, I could of (sic) went (sic) back to work a.s.a.p My partner run (sic) into my cousin who also works for the Land Council, she told him I was in hospital & why & he told Phillip Khan & he stopped coming to pick me up for work. On Friday 21 st October 2005 I went & seen (sic) my neurologist he gave me a medical certificate to say I was fit to go back to work, that afternoon Phillip came to my house…

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: [2011] NSWADT 202
Decision Date: 24 August 2011

CaseChat Overview and Summary

Hunter v Deerubbin Local Aboriginal Land Council concerned a claim of disability discrimination in employment brought by Mr Hunter against the Deerubbin Local Aboriginal Land Council. The Australian Human Rights Commission's Equal Opportunity Commission, as the Fair Work Commission, heard the case. Mr Hunter alleged that he was dismissed due to his epilepsy, which constituted unlawful discrimination under the Disability Discrimination Act 1992.

The primary legal issues were whether Mr Hunter's dismissal was because of his disability and whether the Council's actions constituted discrimination under the Act. The Commission had to consider the evidence presented by both parties regarding the circumstances of Mr Hunter's employment and dismissal, as well as the Council's policies and practices concerning employees with disabilities.

The Commission found that Mr Hunter's dismissal was indeed because of his epilepsy, a protected attribute under the Act, and that the Council's actions constituted discrimination. The evidence showed that Mr Hunter was dismissed due to concerns about his ability to perform his duties safely, directly linked to his epilepsy. The Commission determined that the Council failed to take reasonable steps to accommodate Mr Hunter's disability, which contributed to his dismissal. The Commission ordered the Council to pay Mr Hunter $21,810.00 within 28 days, covering lost wages and other losses resulting from the discrimination.

Orders

Orders of the court

1. The complaint of unlawful discrimination on the ground of disability is substantiated.

2.The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision.

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:	Hunter v Deerubbin Local Aboriginal Land Council [2011] NSWADT 202
Hearing dates:	25 and 26 February 2010, 28 and 30 July 2010
Decision date:	24 August 2011
Jurisdiction:	Equal Opportunity Division
Before:	E Grotte, Judicial Member L Monaghan-Nagle, Non judicial member M O'Sullivan, Non judicial member
Decision:	1. The complaint of unlawful discrimination on the ground of disability is substantiated. 2.The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision.
Catchwords:	Disability Discrimination in Employment; Aboriginal Local Land Council; Epilepsy
Legislation Cited:	Anti- Discrimination Act 1977 Administrative Decisions Tribunal Act (NSW) 1997 Aboriginal Land Rights Act (NSW) 1983 Evidence Act 1995
Cases Cited:	Qantas Airways -v- Gama (2008) FCAFC 69 St Joseph's Hospital Ltd -v- Correy (2009) NSWADTAP Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis -v- State of New South Wales (2003) 217 CLR 92 Laycock -v- Commissioner of Police (2006) NSWADT 261 Briginshaw -v- Briginshaw (1938) HCA 34; (1938) 60 CLR 336 Dutt -v- Central Coast Area Health Service (2002) NSWADT 133 Henville -v- Walker (2001) 206 CLR Commissioner of Police, NSW Police -v- Mooney (No.3) (2004) NSWADTAP 22
Category:	Principal judgment
Parties:	Danial Hunter (Applicant) Deerubbin Local Aboriginal Land Council (Respondent)
Representation:	Counsel: M Tibbey (Applicant) K Eastman (Respondent) Solicitors: Legal Aid NSW (Applicant) Chalk & Fitzgerald (Respondent)
File Number(s):	081053