Luscombe v Secretary, Department of Communities and Justice

[2025] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Luscombe v Secretary, Department of Communities and Justice [2025] NSWCATAD 203

Hearing dates:

18 December 2024, 19 February 2025, 1 April 2025 and 10 April 2025

Date of orders:

13 August 2025

Decision date:

13 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

(1)   Leave is granted for the Applicant’s complaint of indirect disability discrimination against the Respondent, in relation to her applications for employment of 15 March 2023 (Role 2) and 4 August 2023 (Role 3).

(2)   Leave is refused for the balance of the Applicant’s complaint against the Respondent.

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity —

leave required for complaint to proceed —

principles applying to grant of leave – direct disability discrimination – indirect disability discrimination – applicants for employment

Legislation Cited:

Anti-Discrimination Act 1977

Civil and Administrative Act 2013

Disability Discrimination Act 1992 (Cth)

Cases Cited:

Bassili v The Star Pty Ltd [2016] NSWCATAD 167

Carroll v Department of Family and Community Services [2015] NSWCATAD 82

Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282

Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54

Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99

Jones v Ekermawi [2009] NSWCA

Langley v Niland [1981] 2 NSWLR 104

McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

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

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Thompson v Rail Corporation NSW [2008] NSWADT 329

Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Fiona Luscombe (Applicant)

Secretary, Department of Communities and Justice (Respondent)

Representation:

Applicant (Self-Represented)

Counsel:
R Gall (Respondent)

Solicitors:
Department of Communities and Justice (Respondent)

File Number(s):

2024/00348625

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. In 2001 when Fiona Luscombe (the Applicant) was 16 years old, she was the victim of a horrific car accident which left her with significant injuries, including an acquired/traumatic brain injury. As a consequence of her acquired/traumatic brain injury, amongst other significant impacts, she has left side hemiparesis. Despite this, the Applicant completed an undergraduate degree in 2010 and then obtained a Masters of Social Work degree in 2016. Since obtained her Masters of Social Work, the Applicant she has been trying to obtain work as a child protection caseworker.

2. In 2020 the Applicant made a complaint under the Disability Discrimination Act 1992 (Cth) to the Australian Human Rights Commission (AHRC) that she had been discriminated against by the NSW Department of Communities and Justice on the grounds of her disability in the context of her employment and applications for employment to child protection caseworker roles in the period prior to December 2020. Those proceedings were settled by deed. Following the resolution of those AHRC proceedings, the Applicant continued to apply for employment roles advertised by the NSW Department of Communities and Justice (the Respondent).

3. On 21 December 2023, the Applicant lodged a complaint with the President of the Anti-Discrimination Board (ADB) alleging the Respondent had discriminated against her on the ground of disability in contravention of s 49D of the Anti-Discrimination Act 1977 (NSW) (ADA); and victimised her in breach of s 50 of the ADA, in relation to the recruitment process for the following roles:

1. Child Protection Caseworker role applied for on 12 February 2023 (“Role 1”)

2. Caseworker – Support Worker applied for on 15 March 2023 (“Role 2”);

3. Caseworker – Domestic Violence Line applied for on 4 August 2023 (“Role 3”).

4. The Applicant alleged that the discrimination and victimisation was ongoing, and during the course of the investigation of her complaint by the ADB raised the following additional roles relevant to her complaint:

1. Community Services Administration – Correctives applied for on 29 January 2024 (“Role 4”);

2. Victims Register role applied for on 29 January 2024 (“Role 5”);

3. Senior Court Services Officer applied for on 1 February 2024 (“Role 6”);

4. Caseworker – Family Law Court Liaison applied for on 15 March 2024 (“Role 7”);

5. Administration Officer – Sydney Drug Court applied for on 29 March 2024 (“Role 8”).

5. On 26 August 2024 the President decided to decline the Applicant’s complaint as lacking in substance, on the ground that:

“The complainant has not demonstrated unlawful disability, either direct or indirect, in relation to the respondent’s decisions not [to] employ her to the various positions applied for”.

“The respondent has provided information that support the decisions it made on each occasion in relation to the complainant’s applications that do not equate to unlawful discrimination. There is no information provided by the complainant other than a mere assertion that the relevant hiring officers of DCJ were aware of her previous ARHC complaint or Deed of Settlement”.

6. At the Applicant’s request, the President referred the complaint to this Tribunal as required by s 93A of the Act.

7. The Tribunal has power to grant, or to refuse to grant, leave for the Applicant’s complaint to proceed pursuant to s 96(1) of the Act. The Applicant’s leave application was the subject of a hearing which took place over 4 days on 18 December 2024, 19 February 2025, 1 April 2025 and 10 April 2025.

8. The Respondent objected to leave being granted on the basis that the Applicant had not adduced evidence in support of her assertions of discrimination and victimisation, and that in contrast, the Department’s evidence established that the recruitment process for each of the positions was fair and merit based, the Applicant was not treated differently or less favourably because of her disability, and the persons involved in the recruitment process had no knowledge of her previous complaint in the AHRC. The Respondent provided an Affidavit of Phillip Taylor dated 18 October 2024 which contained the evidence supporting its submissions, a further Affidavit of Phillip Taylor dated 11 December 2024 which updated information contained in the previous affidavit, and also tendered additional documents including the Deed of Release and Settlement dated 18 January 2023, and a copy of the Applicant’s complaint to the AHRC dated 6 April 2021 which was the subject of that deed and settlement.

9. The Applicant provided the Tribunal with a bundle of documents including a letter to the Tribunal outlining her evidence, submissions, and supporting documentation.

10. For the reasons that follow, I have decided to grant leave for part of the Applicant’s complaint to proceed, and refuse leave for the remainder.

Legal Principles

11. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

12. A complaint may be amended under 91C of the Act while it is still before the President. This occurred in relation to the Applicant’s complaint, to include the employment positions which the Applicant had applied to, following her complaint. The referral from the President therefore addressed conduct regarding the recruitment process from 1 February 2023 to 2 February 2024.

13. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be “lacking in substance” if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is “not reasonably arguable”: Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].

14. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.

15. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

16. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (“Ekermawi”). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

17. For the purpose of determining whether leave ought to be granted, the applicant’s evidence must be taken at its highest: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. That is, everything the applicant puts into evidence is accepted as true, and then the Tribunal determines whether she could possibly succeed in her complaint of discrimination and vilification..

18. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

Disability in the area of employment

19. Section 4 of the Act defines disability to mean:

(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.

20. Section 49B(2)(c) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of disability.

21. Section 49B of the Act explains 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.

22. Section 49D makes disability discrimination unlawful in the context of employment:

49D Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of disability--

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability—

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

23. In addition, the Act defines disability to include past, future and presumed disability:

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).

24. In order to establish a claim of direct disability discrimination, the Applicant needs to establish that:

1. She was treated less favourably than another person in the same or similar circumstances, who did not have her disability or its characteristics (sometimes referred to as “differential treatment”); and

2. The differential or less favourable treatment was “on the grounds of” her disability or its characteristics (sometimes referred to as “causation”).

25. With respect to direct disability discrimination, the applicant bears the onus of proof that she was treated less favourably “on the grounds of”, “because of” or “due” (at least in part) to her disability: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].

26. Demonstrating differential treatment requires the identification of a comparator. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].

27. At issue when addressing the causation element of direct discrimination, is whether the person’s disability is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

28. In order to establish indirect disability discrimination, the Applicant needs to establish that:

1. she was subject to a requirement or condition by the Respondent;

2. she was unable to comply with the requirement or condition because of her disability (or its characteristics);

3. the majority of persons without her disability would be able to comply with that requirement or condition; and

4. the requirement or condition was not reasonable in the circumstances.

29. In order the establish victimisation, the Applicant needs to demonstrate:

1. she did one or more of the things listed in s 50 (a) – (d) of the Act, which I will refer to as the “trigger”;

2. the Respondents subjected her to a detriment; and

3. the detriment was on the ground that the Applicant did one of the things listed in s50 (a) – (d) of the Act, which I will refer to as “causation”: see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24].

Amendment of the Complaint

30. The period of the complaint was specified by the ADB as 1 February 2023 to 21 December 2023, and 8 January 2024 to 2 February 2024. Two of the Applicant’s applications for employment included in her complaint fell outside that timeframe, being:

1. Caseworker – Family Law Court Liaison applied for on 15 March 2024 (“Role 7”); and

2. Administration Officer – Sydney Drug Court applied for on 29 March 2024 (“Role 8”).

31. It is clear from the President’s Summary of Complaint that despite falling outside the stated timeframe for investigation, the ADB included Role 8 in its investigation of the Applicant’s allegations of discrimination and victimisation, on the basis of submissions provided by the Respondent to the ADB via letter dated 14 June 2024. The Respondent also included Role 7 and Role 8 in written submissions on this application for leave, referring to them as “roles that are the subject of Ms Luscombe’s complaint”.

32. Although it appears that the parties assumed the Applicant’s complaint extended beyond the time limitation of 2 February 2024 identified by the ADB, it may be that an amendment of the referred complaint is necessary for the Tribunal to consider the Applicant’s allegations re Role 7 and Role 8, which fall outside the current stated temporal scope of the complaint.

33. Section 103 of the ADA provides:

103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

34. The Tribunal’s decision in amending a complaint is discretionary. The relevant considerations to be taken into account when exercising its discretion are addressed in Thompson v Rail Corporation NSW [2008] NSWADT 329 (Thompson) and McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 (McCrystal) at [10]- [12]:

In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 (Zhang), an Appeal Panel of one of NCAT’s predecessors, the Administrative Decisions Tribunal (ADT), considered the scope of the power conferred by s 103. The Appeal Panel rejected the proposition that s 103 only authorises the Tribunal to add complaints where these arise out of complaints that have been investigated by the President, citing the decision of the Appeal Panel in Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 (Chand) at [37]- [38].

The Appeal Panel in Chand at [38] commented that relevant considerations when deciding whether to exercise the discretion to add a complaint are the age of the additional complaint and its relationship with the complaint that has already been referred.

In Thompson v Rail Corporation NSW [2008] NSWADT 329, after considering Zhang and Chand, I considered the factors that may be relevant to the exercise of the power to amend a complaint, at [13]:

The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant:

• Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)).

• Whether the proposed amendment is futile because it seeks to pursue claims that are untenable.

• Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs.

• Whether the proposed amendment raises any issue of joinder.

• Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred.

• Whether if refused/granted, any party might be prejudiced.

• Whether the party making the application is in default of previous orders.

35. The objects of the Civil and Administrative Act 2013 (NSW) (CAT Act) at s 3 and its guiding principle at s 36 are also relevant considerations for the Tribunal in determining whether to exercise its discretion to amend a complaint under s 103 of the ADA.

36. Applying the relevant factors as expressed above, the factors in favour of the amendment to expand the temporal scope of the complaint to include Role 7 and Role 8 – ie, to 28 March 2024 instead of 2 February 2024 - include that the proposed amendment may obviate the need for the Applicant to lodge a new complaint with ADNSW specific to the time period between 2 February 2024 and 28 March 2024; that any such new complaint would now be out of time and therefore prejudice the Applicant’s ability to have that complaint considered; that the subject matter is a continuation of the subject of the complaint period already before the Tribunal; and that the parties were both operating on the assumption that the Tribunal could consider the additional roles despite their occurrence after the specified time frame of the complaint. I give those factors considerable weight.

37. There are no discernible factors against the amendment in the circumstances of these proceedings.

38. Taking into account the Tribunal’s guiding principle to facilitate the just, quick, and cheap resolution of the real issues in proceedings, it is therefore appropriate for the Tribunal to exercise its discretion and amend the Applicant’s complaint pursuant to s 103 of the ADA to include Role 7 and Role 8, by extending the temporal scope of the Applicant’s complaint to 30 March 2024.

Consideration

39. In written submissions on the issue of leave, the Respondent submitted that its evidence of the decision-making processes in relation to each of the roles demonstrated that the Applicant was not treated differently or less favourably because of disability, and that the comprehensive recruitment processes and policies ensured recruitment decisions were made impartially and on the basis of merit.

40. Those submissions address the Applicant’s complaint broadly with respect to an allegation of direct disability discrimination.

41. With respect to the complaint of victimisation, the Respondent submitted that their evidence demonstrated that none of the individuals involved in the recruitment processes for each of the Roles was aware of the Applicant’s previous AHRC complaint, and there therefore could not be any victimisation.

42. The Applicant provided the Tribunal with her oral evidence at hearing of her disability and the recruitment processes she participated in for Roles 1 to 8, and the basis upon which she believed she had been subjected to discrimination or victimisation in each instance. I will address each of those Roles and the Applicant’s allegations with respect to them below.

43. As discussed above, for the purposes of determining whether leave ought to be granted, the Tribunal is tasked with accepting the Applicant’s evidence and taking it at its highest, to determine whether a complaint of discrimination or victimisation could be substantiated. I therefore accept the Applicant’s evidence as provided verbally and in writing to the Tribunal in relation to this leave application.

Role 1: Child Protection Caseworker role applied for on 12 February 2023

44. The Applicant’s evidence was that at the time she applied for Role 1, on 12 February 2023, she had already been through 6 previous applications to the Department for the same or similar role. The process she was put through in relation to this application was “out of the ordinary” when compared with those previous application processes, as she was not followed up in relation to her application. She believed that this difference was because the process occurred after her AHRC proceedings, and it demonstrated that she was being victimised for her previous complaint of discrimination.

45. The Respondent’s original position, as expressed to the ADB, was that the Applicant had been telephoned and emailed in relation to her application for the role, but had not responded to an email of 15 May 2023 seeking confirmation that she wished to pursue the application, and her application was withdrawn. The Applicant disputed that she had failed to respond, providing copies of the email response, and claimed that she never received a telephone call. The Respondent admitted at the hearing that the evidence demonstrated that the Applicant had responded and had not been contacted by telephone. This was stated to be an “inadvertent oversight” on the part of the Talent Acquisition Officer managing the recruitment process, unrelated to the Applicant’s disability or her previous complaint to the AHRC. The Talent Acquisition Officer was aware of the Applicant’s disability as this had been disclosed in the application for Role 1, but claims to have been unaware of the Applicant’s previous AHRC complaint.

46. Taking the Applicant’s evidence at its highest, it is clear that the Applicant was treated differently or less favourably to the other candidates who applied for this role. The issue is then whether there is any causal connection between that treatment and the Applicant’s disability. The Applicant acknowledges in her evidence that she is “heavily traumatized by what has happened to me previously” but there is no direct evidence that the differential treatment in relation to Role 1 had any connection to the Applicant’s disability or her AHRC complaint.

47. Where there is no direct evidence of a factual matter, the Tribunal may infer a finding from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70].

48. On the evidence before me, there is a more probable and innocent explanation for the less favourable treatment than it being because of the Applicant’s disability or because she had previously made a complaint with the AHRC. In the Talent Acquisition Officer’s affidavit, she stated that her failure to follow up with the Applicant was an inadvertent oversight on her part, for which she takes responsibility. Although she was aware of the Applicant’s disability, there is no evidence upon which an inference could be drawn that this influenced her failure to call the Applicant. She also stated that she was not aware of the Applicant’s previous complaint in the AHRC. There is no evidence upon which an inference could be drawn that she was aware, contrary to her statement, and that this influenced her failure to follow up with the Applicant.

49. I therefore find that it is unlikely that the Applicant would be able to substantiate a complaint of direct disability discrimination or victimisation in relation to Role 1.

Role 2: Caseworker – Support Worker applied for on 15 March 2023

50. The Applicant applied for Role 2 on 15 March 2023. Candidates for the role were required to include a cover letter addressing 2 targeted questions and how they met the requirements of the role.

51. In her application the Applicant identified that she required adjustments to equitably participate in the recruitment process, and stated the following in relation to her preferred method of communication:

I do not have a preferred method of communication. I am able to communicate effectively using any method. Regarding my disability, I have an Acquired Brain Injury (ABI) from a car accident many years ago. I have weakness in my left hand which impacts my ability to write at a fast pace. The only adjustment I need is a computer for whenever I would need to write at a fast pace. I do not have any other injury that will impair my ability to work – no other physical or intellectual impairments. The thing that I need most when attending an interview is an understanding that I do have a disability, and I am not able to confidently answer questions in an interview style environment. But I do hope that my educational achievements and my previous and current work experiences are able to demonstrate that I would be suitable for the role.

52. The Applicant was shortlisted for the role and requested to attend an interview on 9 May 2023. The interview request contained detailed information about the process, identifying a written task and assessment to be submitted before the day of the interview, and informing the applicant that she would receive the interview questions 10 minutes before the interview to allow for preparation time and candidates to take notes. The request invited the Applicant to contact the interviewed if she required a reasonable adjustment to participate in the recruitment process, which the Applicant did by email on 7 May 2023. That email included the following, in addition to some information about the Applicant’s disability and her history:

What I would like to strongly point out is that due to my disability I find interviews very confronting and difficult settings to be able to fully demonstrate my capability as a worker. I never seem to quite answer questions correctly, in the correct style, and although I am always trying I never seem able to answer questions using the STAR format. I would like this to be understood and I would like the interview panel to be made aware of this.

53. The email was forwarded to the interview panel members, and it therefore appears undisputed that the interview panel was aware of the Applicant’s disability. The Applicant was unsuccessful in her application for the role.

54. The respondent provided evidence of the Applicant’s completed written task, the panel’s notes of the interview, the panel’s overall candidate summary report, the panel’s recommendations regarding the Applicant and the panel’s recommendations regarding candidates who were successful in the recruitment process.. In their assessment of her written task, they recorded:

Reasons for not completing written task at the time of interview – I only have surface pro lap top and difficult to go page to page. Answers on there. Said to Peter.

Conflicting information about her capabilities on her application.

55. The panel’s recommendations noted of the Applicant:

She would not be able to cope in this role.

Hoped her disclosure would help her application.

Struggling without Acquired Brain Injury.

56. The interview panel notes demonstrate that they were aware of the Applicant’s ABI, but they appear not to understand how her disability impacted her. There is no evidence that any accommodations were made for the Applicant during the course of the interview or in relation to assessment of the written task, or that she was asked how her disability may impact the way in which she could equitably participate in the process. The most that the interview panel seems to have done or considered in that respect was to allow the Applicant an additional 10 minutes at the commencement of the interview, when she notified them that she hadn’t received the interview questions.

57. The overall candidate summary report indicates that the Applicant scored reasonably well in her online component, with scores of “moderate strength”, “strength”, “clear strength”, and “moderate development”, but was deemed less than suitable or unsuitable for her interview and written task component.

58. The Applicant’s submissions were to the effect that more consideration of her disability and allowances or adjustments should have been made, to assist her in fairly answering the interview questions and equitably being considered for the role. There were no submissions made regarding less favourable treatment in comparison to other candidates. This appears, therefore, to support a submission that the Respondent’s conduct in relation to Role 2 constituted indirect discrimination, rather than direct discrimination or victimisation.

59. To demonstrate unlawful disability discrimination in this context, the Applicant would need to demonstrate that in the recruitment process:

1. The Respondent required her to comply with a condition or requirement, being a panel interview of the format on 9 May 2023 which required her to complete a written task beforehand, receive interview questions 10 minutes prior, and to answer questions in a specific manner;

2. The Applicant was unable to comply with that condition or requirement;

3. The majority of persons without the Applicant’s disability of an Acquired Brain Injury and its characteristics would be able to comply with that condition or requirement; and

4. It was not reasonable in the circumstances to require the Applicant to comply with that condition or requirement.

60. On the Applicant’s evidence, it appears that she may be able to demonstrate indirect disability discrimination pursuant to s 49B(1)(b) of the ADA. For that indirect discrimination to be unlawful, the Applicant would need to demonstrate that her complaint could also substantiate s 49D. In my view the Applicant’s evidence, taken at its highest, demonstrates that the Respondent’s imposition of the condition or requirement (as outlined at 59(1) above) constituted the arrangements the employer made for the purpose of determining who should be offered employment, within the meaning of s 49D(2)(a), or determining who should be offered employment, within the meaning of s 49D(2)(b).

61. There is an exception to s 49D(2) at s 49D(4). This was not specifically addressed by the Respondent, on the basis that it did not consider the Applicant could substantiate s 49B. Not having received submissions on that exception, I do not consider here whether it could or should apply to these circumstances. It is a matter which may be raised in substantive proceedings, should leave be granted.

62. I accept the Respondent’s evidence that it has comprehensive policies and processes in place that are directed at ensuring that employment candidates are treated fairly during the recruitment process, including by way of reasonable adjustments. That does not mean, however, that such policies are applied appropriately to a specific applicant or specific set of circumstances, or that this was done with respect to the Applicant’s particular requirements for adjustments and fairness, taking into consideration her disability and its characteristics. That is a factual dispute which is not appropriately determined when considering the question of leave in these proceedings.

63. In my view, taking the Applicant’s evidence at its highest, her claim for indirect disability discrimination in relation to Role 2 could be substantiated.

Role 3: Caseworker – Domestic Violence Line applied for on 4 August 2023

64. The Applicant’s application for Role 3 identified that she required an adjustment to participate equitably in the selection process. She included the following explanation when asked ‘Do you have a preferred method of communication’:

I have an Acquired Brain Injury as a result of a car accident I was involved in many years ago. My brain injury does not impair or impact me much, but I have a weakened left-side which has impacted on my ability to write. I am capable doing any and all work, but what I need and all I am looking for is understanding.

65. The Applicant’s application progressed to interview stage. The Applicant communicated with the Talent Acquisition Officer in relation to her concerns regarding the interview process and her disability, stating:

I am not in need of any adjustments, but I do need there to be an understanding of my brain injury. I find interviews very difficult top do because of this, and I have very low confidence in interview situations as I have missed out on some great employment opportunities due to the interviews. My brain injury does not impact how I work, but I just find being able to answer interview questions and get to the next employment stage very difficult. So I please ask for understanding and a bit more flexibility with me.

66. In response, the Applicant was provided with a 1:1 session with the recruiter, but submitted that this was not an “adjustment” taking into consideration her disability, and was an option offered to anyone who requested assistance.

67. The Applicant’s evidence is that she raised her ABI disability at the end of the interview, but this was not taken into consideration in assessing her application or her performance during the interview, and she was therefore unsuccessful in the role.

68. For the same reasons referred to in relation to Role 2, taking the Applicant’s evidence at its highest, it appears that the Applicant could substantiate a complaint of indirect disability discrimination with respect to Role 3, and it is arguable that such discrimination was unlawful within the meaning of s 49D(2)(a) or s 49D(2)(b),

Role 4: Community Services Administration – Correctives applied for on 29 January 2024; Role 5: Victims Register role applied for on 29 January 2024; Role 6: Senior Court Services Officer applied for on 1 February 2024

69. The Applicant’s application for Roles 4 and 5 did not progress to interview stage. On the Respondent’s evidence this was because her application did not address the focus capabilities or the target questions specified in the job advertisement. There is no evidence to suggest a causal connection between the Applicant’s failure to obtain an interview and her disability.

70. The Applicant’s evidence was that by the time she was applying for Roles 4, 5 and 6 in 2024, she was so discouraged by her past experience that she stopped including information about her disability in her applications. This was because she felt that she was not accommodated or provided appropriate adjustments in order to equitably participate in the recruitment process, when she did disclose her disability and a need for adjustments.

When I said “yes” [to requiring accommodations or adjustments], nothing helps. It doesn’t change the process. So I stopped saying “yes”… It wasn’t working if I didn’t disclose and it wasn’t working if I did disclose.

71. The Applicant was shortlisted for Role 6 and was invited to attend an assessment centre to complete a written task, group discussion, and rotating interview between panel members. The Applicant failed the assessment tasks.

72. The Applicant said that when she did disclose her disability to recruiters she was informed that there were no writing requirements, but then when she proceeded to interview, there were writing requirements which she could not complete fairly.

71. In circumstances where the Applicant did not inform the Talent Acquisition Officer in relation to Role 6 of her disability or adjustments that she required, it is difficult to find that it was not reasonably in all the circumstances to require the applicant to participate in the interview and assessment process without accommodations.

72. In my view the evidence does not demonstrate that the Applicant could substantiate a complaint of indirect disability discrimination with respect to Roles 4, 5, or 6.

Role 7: Caseworker – Family Law Court Liaison applied for on 15 March 2024

75. The Applicant’s application for Role 7 did not proceed to an offer of interview because, on the Respondent’s evidence, the Applicant lacked the 2 years’ experience specified in the job advertisement.

76. There is no evidence to suggest a causal connection between the Applicant’s failure to obtain an interview and her disability.

Role 8: Administration Officer – Sydney Drug Court applied for on 29 March 2024

77. The Applicant proceeded to interview stage in relation to Role 8. Two days after being invited to interview, the Applicant replied that she was unable to attend the interview. The Applicant’s application was therefore withdrawn and the Applicant was notified of the withdrawal.

78. There is no evidence to suggest that the Applicant was unable to attend the interview because of her disability, or that there was any other causal connection between the Respondent’s conduct and the Applicant’s disability.

Whether leave ought to be granted

79. I accept that the Applicant has a “trigger” within the meaning of s 50 of the ADA and that the Respondent’s employees’ conduct towards her with respect to the recruitment processes for Roles 1-8 were detrimental, to the effect that the Applicant was unsuccessful in obtaining employment in any of those roles. However, there is no direct evidence before the Tribunal that any of the Respondent’s employees’ conduct in relation to Roles 1 to 8 inclusive was because the Applicant had previously made complaints of discrimination under the ADA, or her previous proceedings in the AHRC. Whilst I can infer from the available evidence that some of the Respondent’s employees must have been aware of the Applicant’s past complaints, I accept the evidence of Philip Taylor that the complaint and its deed of settlement were not placed on the Applicant’s personnel file. There is no evidence that any of the individuals conducting the various selection and recruitment processes for Roles 1 to 8 were aware of the Applicant’s previous complaints. On the evidence before me I therefore do not believe that the Applicant will be able to substantiate a complaint of victimisation.

80. There is also no evidence before me to substantiate a complaint that the Applicant was treated less favourably in relation to any of Roles 1 to 8 because of her disability. I therefore do not believe that the Applicant will be able to substantiate a complaint of direct disability discrimination.

81. As outlined above, taking the Applicant’s evidence at its highest for the purpose of determining whether or not leave ought to be granted, I believe that the Applicant could substantiate a complaint of indirect disability discrimination pursuant to ss 49B(1)(b) and 49D(2)(a) and/or 49D(2)(b) with respect to Roles 2 and 3.

82. In deciding whether it is “fair and just” to grant or to refuse leave, I take into account the Applicant’s evidence in relation to Roles 1 to 8, and I also take into consideration the impact her experience of the Respondent’s recruitment processes have had on her. The Applicant expressed a strong desire to be able to demonstrate, through the Tribunal proceedings, how policies regarding accommodation for disability and inclusivity did not necessarily translate into appropriate adjustments for her disability, and how this was disadvantageous to herself and other persons with “invisible” disabilities. She believes that given the appropriate assistance to put her on an equitable “playing field” with persons not sharing her disability or its characteristics, she would be successful in obtaining the employment she seeks. These issues clearly have a significant impact on the Applicant’s life and her ability to participate in society.

83. I also take into consideration the Respondent’s evidence and submissions, and (as noted above) I have accepted that the Respondent does have policies and procedures in place which are designed to assist persons with a disability to participate in its recruitment processes equitably. The issue may be whether those policies and procedures are sufficient or fit for purpose, or applied appropriately to achieve the desired outcome.

84. I am not sure that the Applicant’s prospects are particularly strong, but this is because, to date, the Applicant has been unable to obtain legal representation or assistance in these proceedings, and she is therefore clearly at a disadvantage in comparison to the Respondent and its resources. An imbalance in legal representation must not, however, impact whether or not it would be fair or just to grant leave in the circumstances.

85. I have also taken into account that the Tribunal’s discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme.

86. The balance of my consideration favours the grant of leave to the Applicant for her complaint of indirect disability discrimination in relation to Roles 2 and 3.

Orders

1. Leave is granted for the Applicant’s complaint of indirect disability discrimination against the Respondent, in relation to her applications for employment of 15 March 2023 (Role 2) and 4 August 2023 (Role 3).

2. Leave is refused for the balance of the Applicant’s complaint against the Respondent.

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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

Decision last updated: 13 August 2025