Kenworthy v Heartbeat Centre Coffs Harbour Limited

[2025] NSWCATAD 133

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kenworthy v Heartbeat Centre Coffs Harbour Limited [2025] NSWCATAD 133

Hearing dates:

30 April 2025

Date of orders:

12 June 2025

Decision date:

12 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
Emeritus Prof P Foreman AM, General Member

Decision:

1. The complaint of unlawful disability discrimination is dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application as agreed or assessed.

Catchwords:

HUMAN RIGHTS – Discrimination – disability – claim not substantiated – Costs

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil Liability Act 2002 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137

BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87

Khalaf v Commissioner of Police [2019] NSWCATOD 178

Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91

YKD v YKE (No 2) [2025] NSWCATAP 101

Category:

Principal judgment

Parties:

Graeme Kenworthy (Applicant)
Heartbeat Centre Coffs Harbour Limited (Respondent)

Representation:

Applicant (Self-represented)
Solicitor:
Barry Nilsson (Respondent)

File Number(s):

2024/00265962

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. The applicant alleges the respondent has engaged in unlawful discrimination against the applicant in the area of employment on the basis of a disability, in contravention of the Anti-Discrimination Act1977 (NSW).

2. The respondent submits that the Tribunal should dismiss the application pursuant to section 108(1) of the Anti-Discrimination Act. It is also submitted that the respondent should be awarded its costs pursuant to sub-sections 60(2) and 60(3) of the Civil and Administrative Tribunal Act2013 (NSW) on the basis that the application is frivolous, vexatious, lacking in substance and that the applicant has acted in contravention of the principle in section 36 of the Civil and Administrative Tribunal Act.

3. The disability alleged by the applicant is a pre-existing shoulder injury which the applicant failed to disclose when he was first employed by the respondent, and exacerbation of that injury which the applicant also failed to report. The applicant characterised this injury as an “unseen disability”.

4. The applicant was representing himself and his submissions and documents were at times difficult to follow. However, the Tribunal has considered his submissions and the evidence provided on behalf of the applicant and respondent. The Tribunal has identified the salient issues for this particular application.

5. Those issues may be stated as follows:

1. Whether the applicant was dismissed from his employment, or alternatively whether he resigned and the circumstances of his ceasing employment.

2. Whether the evidence of one party should be given greater weight than the evidence of the other party, or whether the parties’ evidence was credible and supported by documents or corroborative evidence.

3. Whether the applicant suffered from any disability. If so, whether that disability was known to the respondent and the nature of the disability.

4. Whether an act of unlawful direct or indirect discrimination occurred.

5. Whether there was a failure to make and/or consider reasonable adjustments to cater for a disability.

6. Whether there are special circumstances warranting an award of costs.

Factual findings

6. The Tribunal received evidence from the applicant:

1. Exhibit A1, being written submissions by Mr Kenworthy comprising 20 pages;

2. Exhibit A2, being written submissions dated 22 April 2025 received by the Tribunal’s registry 24 April 2025;

3. Exhibit A3, being written submissions dated 25 April 2025 received 30 April 2025;

7. In addition, the applicant was cross-examined during the hearing and the Tribunal was able to assess the demeanour of the applicant and the consistency of his answers to the questions posed. The applicant was responsive to the questions but gave evidence which was largely self-serving and unimpressive. The applicant gave evidence that he was dismissed from his employment and made a statement that it was a “forced dismissal”. That does not accord with the contemporaneous records and the applicant’s own documents. The clinical history in evidence confirmed that the applicant did not disclose he had been fired, and confirmed his physical health was reasonable. The applicant stated to the Tribunal that he was fit and could run well, and lift 20 kgs. Where the applicant’s evidence contradicted the evidence in the respondent’s case, the Tribunal preferred the evidence of the respondent, based as it was on the contemporaneous material.

8. The Tribunal received documentary evidence from the respondent:

1. Exhibit R1, being a bundle of documents of 89 pages with table of contents filed 20 January 2025;

2. Exhibit R2, the written submissions of the respondent dated 20 January 2025.

9. The respondent’s witness was Mr Magee who was cross-examined. The answers he gave supported the respondent’s case. The evidence of Mr Magee is given greater weight than the evidence of the applicant because it was more credible and was clearly based upon the contemporaneous documentation.

10. The following discussion of the evidence represents the findings of the Tribunal about those factual matters unless otherwise stated.

11. The respondent is a not-for-profit organisation that has three primary arms. The first is the Heartbeat Church. The second is the Heartbeat Market, and the third is the Coffs City Mission. The Heartbeat Market ordinarily has about three warehouse employees with most of its work being completed by volunteers. Mr Magee is Pastor of the Heartbeat Church and is in charge of the three arms of the organisation.

12. It is the evidence that the applicant was employed in the Heartbeat Market arm of the respondent’s organisation from 14 July 2022 until his resignation on 4 October 2022. The Tribunal finds that fact.

13. The applicant was interviewed by Pastor Wayne Magee on or about 14 July 2022. The applicant then commenced employment with the respondent as a casual Driver/Storeman, with no written contract of employment. This is an agreed position between the parties.

14. The Tribunal accepts that on commencement of his employment, the applicant provided an executed medical declaration which disclosed that he had no pre-existing conditions that would affect his ability to perform his role, his tax file number, and payroll information. The applicant was taken through an induction process, and provided with the respondent’s Employee Induction Manual, which relevantly included notice of the necessity to identify and report hazards and any injuries immediately to a responsible person with the respondent.

15. On 14 July 2022 after he had completed his induction, the applicant completed his first shift. The applicant was scheduled to work two days per week (on a Tuesday and Wednesday) for four hours per shift. The applicant’s role was to drive the respondent’s truck to collect and deliver items to be either donated or sold through the Market, and this required the applicant to be physically fit and able to carry safely heavy items. The applicant represented that he had the experience and ability to carry out that work.

16. It would appear from the applicant’s material that he alleges on his first shift he felt discomfort in his shoulder and nominates this as the date of his work injury. The applicant admitted in his documents that he did not report the discomfort, injury or any other impediment to his employment on the first day. The applicant also did not request any adjustments; additionally, he did not report any hazards he identified in the conduct of his role while employed.

17. The applicant regularly contacted his direct manager to report that he was not able to work because he was tired as he represented that he suffers from sleep apnoea. It is the evidence that the applicant told his manager and Mr Magee that he was “desperate” for money due to investments he engaged in previously, that had gone wrong and that is why he was working.

18. The applicant kept working after his first shift but still did not report any issues, other than being tired, which was accepted as a fact, and the applicant was not required to work on those occasions. Prior to his resignation, the applicant asked to work one day per week on account of his tiredness. This request was accommodated and he worked one day per week. This is a fact found by the Tribunal.

19. On 4 October 2022 after completion of a shift the applicant resigned from his role. The applicant was alleged to have said words to the effect “I’ll have to call it quits. I am tired and not sleeping.” The supervisor accepted the resignation and contacted Mr Magee to inform him of this. Mr Magee then contacted the applicant who confirmed to Mr Magee that he had resigned. This is the factual context found by the Tribunal.

20. Because the applicant was a casual employee, his employment was not subject to a notice period. The applicant did not return to work after 4 October 2022. At the time of the resignation the applicant did not report any injuries arising from his employment. The applicant also had not reported any matter which would have impeded his duties or which motivated his decision to resign. This is clear from the factual and documentary evidence.

21. On 5 October 2022 while speaking with the supervisor, Mr Hughes, and Mr Magee, on separate occasions, the applicant stated words to the effect “after talking to my wife last night, I feel to go for compo (sic)”, because he had injured his shoulder. This was the first occasion that the applicant had reported any physical problem to his supervisor or to Mr Magee.

22. After this conversation Mr Magee was contacted by the applicant by telephone and it was explained that the respondent would notify its workers compensation insurer of the applicant’s intention to seek workers compensation. Mr Magee invited the applicant to submit the relevant forms in order to initiate the process, however, the applicant did not do so.

23. On 12 October 2022 Mr Magee contacted the respondent’s WorkCover insurer iCare, to report the disclosure of an injury to the applicant, and the applicant’s intention to make a WorkCover claim.

24. On 18 October 2022, it is recorded that the applicant contacted Mr Magee and Mr Hughes separately, seeking that they collude in relation to information that was to be provided to the WorkCover insurer, specifically, the dates on which various incidents occurred. The respondent instead provided the correct information to the insurer to the best of their knowledge, and expected that the applicant would also provide that information.

25. On 20 October 2022, Mr Magee received the WorkCover claim form, which he forwarded to the applicant the following day with a request that the applicant complete and return it.

26. On 2 November 2022 Mr Magee contacted the applicant and asked him to complete and return the form, which was then returned on or about 4 November 2022. This form was signed by the applicant on 4 November 2022, and is at pages 60 to 65 of Exhibit R1. The respondent provided the forms to the insurer and understood that the matter would be considered by iCare.

27. In the claim form, the applicant, in response to the queries contained within that form, stated (at page 62 of Exhibit R1), “I did not report the injury but reported I had difficulty.” This accords with the evidence from the respondent that at the time of his resignation the applicant had not reported an injury, nor had he reported any difficulty, other than tiredness. The applicant also responded that he had not returned to work since making the claim. In relation to a query about his intention to return to work, the applicant responded in writing (at page 64 of Exhibit R1): “… I have no plan to return to work.” Relevantly the date of reported injury was written as 12 October 2022 (at page 60 of Exhibit R1).

28. The applicant has not contended in that document that he had been dismissed. The representations that he made were consistent with the fact that he had resigned from his position. It appears to the Tribunal that the applicant recast his resignation as a dismissal only after the workers compensation claim was rejected. The Tribunal finds that is a fact.

29. The clinical notes of the applicant’s physiotherapist were also part of Exhibit R1. In those notes it is recorded (on page 85 of Exhibit R1) that the applicant on 14 October 2022 “stopped a week ago due to pain…gradually came on started aching and gradually got worst (sic)”. There is no mention of any injury on 12 October 2022 or prior to resignation on 4 October 2022. It is also recorded on the same page that the applicant had a history of “previous radial nerve damage- to the point of scheduled to amputate” but the applicant “didn’t have this procedure done”, however, the applicant “had a huge piece of humerus ‘taken out’ in accident”. This wasn’t disclosed by the applicant to his employer.

30. The respondent first became aware on 8 May 2023 according to the applicant’s own documentary material that the applicant alleged he was dismissed. The respondent has no record of this communication. Then on 9 May 2023 the applicant attended the Market and went to the staff area where he confronted Mr Hughes in a threatening manner, concerning his workers compensation application, which was in the hands of iCare. The applicant was encouraged to contact the insurer. The applicant became aggressive. Mr Hughes asked the applicant to leave the staff area and after asking for clarification about that direction, the applicant responded in words to the effect, “that’s all I need.” On 12 May 2023 the applicant was sent an email by Mr Magee denouncing his threatening conduct and reiterating that the process of consideration of the claim was being undertaken by iCare and not within the respondent’s control. This is clear from the exhibits.

31. At the commencement of his employment the applicant completed a medical declaration form which relevantly stated that he had no medical conditions that affected his ability to perform the role. The respondent was entitled to believe that the applicant had no disclosed disability. The applicant acknowledged in his WorkCover claim form that he did not report his injury to the respondent which was in direct contravention of his duty to report any injury and/or hazard in the workplace. The applicant described his disability as an “unseen disability” which appears to be an acceptance that the respondent could not have known, and did not subject the applicant to any detriment because of any known fact or circumstance associated with his alleged injury.

Relevant legal context

32. Where an act was done for more than one reason, an applicant will be successful in relation to a claim of unlawful discrimination if he can demonstrate that one of the reasons consists of unlawful discrimination. That is so even where the unlawful discrimination reason is not the dominant or substantial reason: Anti-Discrimination Act, s 4A; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 102, 144.

33. The onus of proof rests with the applicant in these proceedings to establish his claim of unlawful discrimination on the balance of probabilities: Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40]. The applicant has not established his claim to the requisite standard having regard to the matters set out in these reasons.

34. The Anti-Discrimination Act in section 4 definitions provision states:

disability means—

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person’s body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

35. The term “disability” includes past, future and presumed disability: Anti-Discrimination Act, s 49A which provides:

49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability—

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

36. Also the Anti-Discrimination Act in section 49B provides:

49B What constitutes discrimination on the ground of disability

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator—

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability—

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

Considerations and determination

37. Since the respondent was unaware of the applicant’s injury to his shoulder, it is obvious on the evidence, that the respondent treated the applicant in the same way as it treats a person without the applicant’s disability. The appropriate comparator is accepted by the Tribunal to be a person without the applicant’s injury, casually employed by the respondent, who resigns, and retrospectively seeks support to claim a statutory benefit for a condition he did not previously disclose and did not disclose that was aggravated during his employment. No less favourable treatment has been received by the applicant. The types of detriment alleged by the applicant prior to his resignation to be a form of discrimination do not constitute discrimination, simply, because the respondent did not know of the disability and as such, no less favourable treatment on that basis has been suffered or established.

37. The respondent did not require the applicant to comply with an unreasonable discriminatory condition which would disproportionately disadvantage the applicant, or people with his attribute, or one which is substantially the same as his. Also, there is no identifiable unreasonable requirement or condition that has been imposed by the respondent, with which the applicant or those with a condition substantially the same as his, are not able to comply.

38. There is thus no direct or indirect discrimination capable of being established.

39. To the extent to which it is alleged there was a failure to make and/or consider reasonable adjustments, because the respondent was unaware of the applicant’s injury until after his resignation, and due to the applicant neither seeking nor requesting any reasonable adjustments, this aspect of any alleged discrimination cannot be sustained.

40. The discrimination complaint was referred to the Tribunal by the Anti-Discrimination Board, which accepted allegations relating to matters which were alleged to have occurred on or after 11 October 2022. If any matters occurred prior to that date they cannot properly be pursued as they did not form part of the referral. Alternatively, any alleged conduct occurring before that date may be rejected on the basis of section 89B(2)(b) of the Anti-Discrimination Act. These events occurred more than 12 months before the applicant made the application.

41. The events relied upon by the applicant do not constitute discrimination even if the events relied upon occurred before the cut-off date of 11 October 2022.

42. There is considerable force to the submissions of the respondent that the applicant has conflated the operation of the Work Health and Safety Act2011 (NSW) and the Civil Liability Act2002 (NSW), with the assertion of direct and indirect discrimination under the Anti-Discrimination Act.

43. The application of the applicant is dismissed on the basis that there is no relevant unlawful discrimination.

44. The respondent seeks costs under section 60 of the Civil and Administrative Tribunal Act in the event that the application is dismissed. This was raised in the oral hearing and in the respondent’s written submissions. The applicant opposed a costs order.

45. Section 60 of the Civil and Administrative Tribunal Act provides:

60 Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may—

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5) In this section—

costs includes—

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

47. In YKD v YKE (No 2) [2025] NSWCATAP 101, the Appeal Panel considered the issue of costs under this provision, relevantly it was stated:

8. The principles governing YKE’s costs application are not in doubt and require only brief reiteration. In Cripps v G & M Dawson [2006] NSWCA 81 it was accepted in relation to the term “special circumstances” that “It suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of serious unfairness is not a prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.” In CEU v University of Technology Sydney [2017] NSWCA 280, at [4], the Court of Appeal also accepted that “To establish special circumstances, it is sufficient that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional.” The Tribunal has consistently approached “special circumstances” on that basis.

9. With respect to the expression “no tenable basis in fact or law” in s 60(3)(c) of the CAT Act, the dismissal of YKD’s appeal, and the Appeal Panel’s reasons for it, suggest that YKD’s challenges to the decision at first instance lacked a tenable basis in fact or law.

10. A complaint is said to be lacking in substance when it is demonstrated that there exists no factual basis for the allegation or that the complaint is not reasonably arguable (Langley v Niland & Anor [1981] 2 NSWLR 104).

48. These proceedings are not referred to in the Civil and Administrative Tribunal Act Schedule 3, Part 5, clause 13 exceptions for costs not to be awarded in Administrative and Equal Opportunity Division proceedings. Costs may therefore be considered and awarded if a determination is made under section 60(2) of the Civil and Administrative Tribunal Act.

49. The respondent specifically relies upon section 36(1) of the Civil And Administrative Tribunal Act which is: “The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.” The respondent states that it has sought to resolve the proceedings in the Tribunal and to engage with the applicant. The respondent states that the applicant has been unresponsive to invitations to resolve the matter on commercial grounds.

50. A letter dated 29 January 2025 making a no admissions settlement offer on an “open correspondence” basis was sent to the applicant by the respondent and filed with the Tribunal on 30 April 2025. In that letter it was stated that the respondent would rely upon this letter in an application to seek costs against the applicant, in the event that the applicant did not engage in resolution discussions. The history of correspondence trying to resolve this matter, and the consideration the respondent gave to allow the applicant to extend time for filing material. The applicant has not engaged in resolution discussions.

51. The respondent in that prior open correspondence set out the substance of the following grounds as ones on which it would rely in any costs application.

1. The applicant’s conduct has caused the respondent disadvantage associated with the costs of preparing material borne out of the applicant’s refusal to engage in any form of resolution discussions, filing inappropriate material, attempting to include allegations that are statute barred and/or not previously before the Anti-Discrimination Board.

2. The applicant has been responsible for unreasonably prolonging proceedings due to the repeated failure to comply with orders and have the Tribunal delay proceedings.

3. The claim by the applicant has no reasonable basis in fact or at law as highlighted by the material filed on behalf of the respondent.

4. The proceedings are frivolous, vexatious, and misconceived as highlighted in the material filed on behalf of the respondent.

5. The applicant has by engaging in the conduct referred to in the previous subparagraphs, failed to act in a manner that is consistent with the guiding principle in section 36(1) of the Civil and Administrative Tribunal Act.

52. The matters relied upon constitute special circumstances. The claim by the applicant has no reasonable basis in fact or at law found by the Tribunal.

53. The proceedings are frivolous, vexatious, and misconceived as found by the Tribunal in dismissing the application. The failure of the applicant to engage in dispute resolution and accept the offers made for resolution of the dispute is conduct which has caused disadvantage to the respondent.

54. Additionally, it is correct to state that the applicant has not acted in accordance with the guiding principle in section 36(1) of the Civil and Administrative Tribunal Act.

55. The exercise of the discretion under section 60(2) requires the Tribunal “to weigh whether those circumstances are sufficient to amount to ‘special’ circumstances that justify departing from the general rule that each party bear their own costs”: BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [9]; Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]; Khalaf v Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35].

56. The Tribunal considers that the circumstances are sufficient to amount to special circumstances and justify or warrant the departure from the rule in section 60(1). The respondent accordingly should receive an order in its favour under section 60 of the Civil and Administrative Tribunal Act.

Orders

57. The orders of the Tribunal are:

1. The complaint of unlawful disability discrimination is dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application as agreed or assessed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 June 2025