Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Lonie v LiveBetter Services Limited [2023] NSWCATAD 60 Hearing dates: 28 and 29 November 2022 Date of orders: 17 March 2023 Decision date: 17 March 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member
K Stubbs, General MemberDecision: 1. The complaint is substantiated.
2. The respondent is to pay the applicant $10 000 for general damages within 28 days of the date of this order.
3. 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 within 28 days of the date of this order.
4. The parties are to indicate in their submissions whether they seek to be heard or whether they consider that the Tribunal may determine the matter without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
Catchwords: HUMAN RIGHTS – discrimination on the ground disability – discrimination in work - discrimination against an applicant – in the arrangements the employer makes for the purpose of determining who should be offered employment – employer’s determination who should be offered employment – unable to carry out inherent requirements- require services or facilities – impose unjustifiable hardship.
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Work Health and Safety Act 2011 (NSW)
Cases Cited: AB v State of Western Australia (2011) 244 CLR 390; [2011] HCA 42
Coleman v Commissioner of Police [2001] NSWADT 34
Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22
Commissioner of Police, NSW Police v Zraika [2005] NSWADTAP 1
Dell v Dalton (1991) 23 NSWLR 528
Hall v Sheiban (1985) ALR 503
Holdaway v Qantas Airways Limited (1992) EOC 92-395
Green v Department of Family and Community Services [2013] NSWADT 193
King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; 286 ALR 149
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334
Zraika v Commissioner of Police, New South Wales [2004] NSWADT 67
X v Commonwealth [1999] HCA 63;(1999) 200 CLR 177
Category: Principal judgment Parties: Kirstie Lonie (Applicant)
LiveBetter Services Limited (Respondent)Representation: Counsel:
Solicitors:
M McKenney (Applicant)
A Hartnett (Respondent)
Nevin Lenne Gross (Applicant)
Ovartis Lawyers (Respondent)
File Number(s): 2022/00017366
REASONS FOR DECISION
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Ms Kristie Lonie had previously had a heart attack and stent inserted, neck and lumbar pain, shoulder bursitis and tendonitis and hernia in the right groin area (physical disabilities). She applied for a Disability Support Worker (DSW) role with LiveBetter Services Limited (LiveBetter). As part of the recruitment process, Ms Lonie was required to attend a pre-employment physical functional assessment with Mr Hemsley, Exercise Physiologist at Konekt Australia Pty Ltd (Konekt).
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Ms Lonie was…
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- AGLC
- Lonie v LiveBetter Services Limited [2023] NSWCATAD 60
- Case
- [2023] NSWCATAD 60
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal revolved around the interpretation and application of the statutory provisions concerning discrimination on the grounds of disability. Specifically, the Tribunal needed to ascertain whether the respondent's decision not to proceed with the applicant's application, due to her inability to meet certain inherent requirements of the job, constituted discrimination. Additionally, the Tribunal had to determine if the respondent's decision imposed an unjustifiable hardship and if reasonable adjustments could have been made to accommodate the applicant's disability.
The Tribunal concluded that the respondent's actions did indeed amount to discrimination as they were based on the applicant's inability to meet the inherent requirements of the position, which were not essential to the role. The Tribunal held that the respondent had failed to consider reasonable adjustments that could have enabled the applicant to perform the job. Consequently, the Tribunal ruled that the complaint was substantiated. The Tribunal ordered the respondent to pay the applicant $10,000 for general damages and mandated that the parties provide evidence and submissions regarding the appropriate rate of pay and superannuation the applicant would have received had she been employed. The Tribunal also requested the parties to indicate their preference for a hearing or for the matter to be determined without one, in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013.
Orders
Orders of the court
1. The complaint is substantiated.
2. The respondent is to pay the applicant $10 000 for general damages within 28 days of the date of this order.
3. 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 within 28 days of the date of this order.
4. The parties are to indicate in their submissions whether they seek to be heard or whether they consider that the Tribunal may determine the matter without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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