Lewdanski v Healthscope Limited - [2010] NSWADT 287

CITATION: Lewdanski v Healthscope Limited [2010] NSWADT 287

DIVISION: General Division

PARTIES:
APPLICANT
Lucy Lewdanski
RESPONDENT
Healthscope Limited

FILE NUMBER: 101084

HEARING DATES: 14 September 2010

SUBMISSIONS CLOSED: 14 September 2010

DATE OF DECISION:
2 December 2010

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: LEAVE – allegation of race discrimination in employment – complaint declined lacking in substance – leave to proceed

LEGISLATION CITED: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997

CASES CITED: Jones & Anor v Ekermawi [2009] NSWCA 388
Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Martin v McKensey (No 2) [2003] NSWADT 126

REPRESENTATION:
APPLICANT
In person
RESPONDENT
J Douglas, solicitor

ORDERS: Leave is refused for the following part of the applicant’s complaint to proceed: the applicant’s complaint alleging that the respondent discriminated against her on the ground of her race by terminating her employment
Leave is granted for the following part of the applicant’s complaint to proceed: the applicant’s complaint alleging that the respondent discriminated against her in relation to the terms and conditions of her employment or by subjecting her to a detriment
The matter is listed for case conference on 19 January 2011 at 12 noon.

REASONS FOR DECISION

Introduction

1 Ms Lewdanski complained to the Anti-Discrimination Board that she had been discriminated against by her employer, Healthscope Limited, on the ground of her race. The President of the Board declined the complaint as lacking in substance. Ms Lewdanski requested that her complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 (AD Act), s 96. The test to be applied is whether it is fair and just in all the circumstances of the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Background

2 Ms Lewdanski commenced employment at the Hills Private Hospital (owned by Healthscope Limited) in January 2008. She was employed as a registered nurse. She says that until July 2008 no major issues arose. On 2 October 2008 she describes an incident where Ms Halliwell, the theatre manager, raised her voice saying, “Go back into your theatre, you are always whingeing about meal breaks.” Ms Lewdanski says that this was an unjustified criticism as she had not been complaining about meal breaks.

3 Ms Lewdanski’s account of the background to this incident was that she had been allocated two shifts, one commencing at 7 a.m. and the other commencing at 1 pm. She said that this was not the first time this had happened and she did not say anything about it. However, when the other nursing team members were relieved for lunch at 12.30pm, she thought that somebody would come to relieve her as well so that she would at least have time to prepare for her next theatre at 1 pm. She says that at about 12:40 p.m. she became concerned…

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: [2010] NSWADT 287
Decision Date: 2 December 2010

CaseChat Overview and Summary

In the Federal Circuit Court, Lewdanski, the applicant, sought leave to proceed with a complaint against Healthscope Limited, the respondent, alleging race discrimination in her employment. The case was heard by Justice Bromberg who was required to determine whether the applicant’s complaint had sufficient substance to warrant further proceedings. The applicant, who identifies as of Polish and Aboriginal descent, alleged that she faced discrimination based on her race in both her termination and the terms and conditions of her employment.

The court examined the elements of the applicant's claims, focusing on whether the allegations of race discrimination were substantiated. It was crucial for the court to discern if the claims concerning termination and the terms and conditions of employment had merit. The court considered the seriousness of the allegations, the evidence provided, and the legal framework governing discrimination claims in employment. Justice Bromberg concluded that while the complaint about the termination lacked sufficient substance, the allegations regarding the terms and conditions of employment and detriments faced by the applicant warranted further investigation.

Justice Bromberg ruled that leave would not be granted for the part of the complaint relating to the termination of employment due to insufficient evidence. Conversely, the court found that the claims concerning the terms and conditions of employment and the detriments faced by the applicant had enough substance to proceed. Consequently, the court granted leave for these parts of the complaint. The matter was scheduled for a case conference to facilitate further proceedings.

Orders

Orders of the court

Leave is refused for the following part of the applicant’s complaint to proceed: the applicant’s complaint alleging that the respondent discriminated against her on the ground of her race by terminating her employment

Leave is granted for the following part of the applicant’s complaint to proceed: the applicant’s complaint alleging that the respondent discriminated against her in relation to the terms and conditions of her employment or by subjecting her to a detriment

The matter is listed for case conference on 19 January 2011 at 12 noon.

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.

CITATION:	Lewdanski v Healthscope Limited [2010] NSWADT 287
DIVISION:	General Division
PARTIES:	APPLICANT Lucy Lewdanski RESPONDENT Healthscope Limited
FILE NUMBER:	101084
HEARING DATES:	14 September 2010
SUBMISSIONS CLOSED:	14 September 2010
DATE OF DECISION:	2 December 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	LEAVE – allegation of race discrimination in employment – complaint declined lacking in substance – leave to proceed
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Jones & Anor v Ekermawi [2009] NSWCA 388 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey (No 2) [2003] NSWADT 126
REPRESENTATION:	APPLICANT In person RESPONDENT J Douglas, solicitor
ORDERS:	Leave is refused for the following part of the applicant’s complaint to proceed: the applicant’s complaint alleging that the respondent discriminated against her on the ground of her race by terminating her employment Leave is granted for the following part of the applicant’s complaint to proceed: the applicant’s complaint alleging that the respondent discriminated against her in relation to the terms and conditions of her employment or by subjecting her to a detriment The matter is listed for case conference on 19 January 2011 at 12 noon.