Lonie v Live Better Services Limited (No 2)

[2023] NSWCATAD 98

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lonie v Live Better Services Limited (No 2) [2023] NSWCATAD 98

Hearing dates:

On the papers

Date of orders:

1 May 2023

Decision date:

01 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
K Stubbs, General Member

Decision:

1.The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW)

2. The Respondent pay the Applicant wages and superannuation for one shift per week for a 3 month period within 28 days of the date of this order.

Catchwords:

HUMAN RIGHTS – discrimination on the ground disability – discrimination in work - damages.

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Category:

Consequential orders

Parties:

Kirstie Lonie (Applicant)
Live Better Services Limited (Respondent)

Representation:

Counsel:
M McKenney (Applicant)
P Moorhouse (Respondent)

Solicitors:
Nevin Lenne Gross (Applicant)
Ovartis Lawyers (Respondent)

File Number(s):

2022/00017366

Publication restriction:

None

REASONS FOR DECISION

1. On 17 March 2023 the Tribunal handed down its principal judgement Lonie v LiveBetter Services Pty Ltd [2023] NSWCATAD 60 (the Decision). The Tribunal found that the respondent discriminated against the applicant and consequently the applicant suffered loss. Had the respondent not discriminated against Ms Lonie, Ms Lonie would have been offered employment as a Disability Services Worker (DSW) on a casual basis.

2. At [229] of the Decision, the Tribunal found that it was appropriate to infer that had the applicant been employed as a DSW, the respondent would have offered her at least one shift per week for a period of 3 months.

3. During the hearing, no evidence was led as to what rate of pay the applicant would have received from the respondent from approximately 1 April 2021 onwards.

4. The Tribunal rejected the applicant’s submission that her damages consisted of not what she would have been paid by the respondent during the relevant period but what she earned from other employment during the relevant period as there no causation for the loss, [226] the Decision.

5. The Tribunal made orders that the parties are to file and serve any evidence and submissions as to the appropriate rate of pay and level of superannuation the applicant would have been paid had she been employed by the respondent. The parties were also asked to indicate whether they sought to be heard or whether they considered that the Tribunal may determine the matter without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act2013 (NSW) (CAT Act).

6. The applicant in her submissions dated 6 April 2023, indicated that she was content for the Tribunal to determine the matter in accordance with s 50(2) of the CAT Act. The respondent did not address the issue in its submissions dated 14 April 2023 but made no indication that it sought to be heard. The Tribunal is satisfied that it may make an order dispensing with a hearing as the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and the other documents or material lodged with or provided to the Tribunal.

Economic Loss

7. The applicant in her submissions asserted that the economic loss should be calculated based on what she earned working in another organisation as a DSW.

8. The respondent submitted that the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award) applied to the respondent’s DSWs and that the applicant would have been classified as a social and community services employee level 2, pay point 1. As at 1 April 2021, the casual hourly rate for such an employee was $35.51 per hour (clause 15.2 of the Award).

9. In April 2021, the superannuation guarantee charge required the respondent to contribute 9.5% of salary to the Australian Taxation Office (ATO) for the benefit of their employees.

Consideration

10. As set out in [224]-[225] of the Decision, section 108(2) of the Anti-Discrimination Act1977 directs attention to any loss or damage suffered by reason of the respondent’s conduct. It is not relevant therefore to consider what the applicant earned at another workplace as we are not dealing here with questions of mitigation of loss. The relevant question is what loss resulted from the respondent’s discriminatory conduct. In this case, the respondent discriminated against the applicant on the ground of disability in determining to not offer her employment.

11. The loss or damage suffered by the applicant arises as a result of not being offered employment. Had the respondent employed the applicant, she would have been paid pursuant to the Award.

12. The appropriate order is that the respondent pay the applicant for one full shift per week for a period of three months. The rate of pay should be at $35.51 per hour for 12 full shifts plus 9.5% of salary superannuation contribution to the ATO.

13. The Tribunal makes the following orders:

1. The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act2013 (NSW).

2. The Respondent pay the Applicant wages and superannuation for one full shift per week for a 3 month period within 28 days of the date of this order.

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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