Martin v McKensey (No. 2)

[2003] NSWADT 126

CITATION:	Martin -v- McKensey (No. 2) [2003] NSWADT 126
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Cathlene Martin RESPONDENT Hugh McKensey
FILE NUMBER:	981007
HEARING DATES:	15/11/2002
SUBMISSIONS CLOSED:	11/15/2002
DATE OF DECISION:	05/28/2003
BEFORE:	Rees N - Judicial Member; Nemeth de Bikal L - Member; Strickland J - Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Industrial Relations Act 1996 Sex Discrimination Act 1984 (Cth)
CASES CITED:	Martin v Hunter Personnel Pty Ltd & ors [2002] NSWADT 53 Elliott v Nanda & Commonwealth [2001] FCA 418 Cooper v HREOC (1999) 93 FCR 481 Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 Bonella v Wollongong City Council [2001] NSWADT 194 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Director General of Education v Breen [1982] IR 93 Dutt v Central Coast Area Health Service [2002] NSWADT 133
REPRESENTATION:	APPLICANT In person RESPONDENT R Warren, barrister
ORDERS:	Complaint dismissed

Introduction

1 In this case the applicant, Ms Cathlene Martin, has alleged that her former employer, Hunter Personnel Pty Limited, discriminated against her on the ground of her disability by unilaterally determining to change her employment status from that of full-time employee to part-time employee.

2 These particular proceedings were taken against the respondent, Mr Hugh McKensey, who is a former director of Hunter Personnel Pty Limited (hereinafter ‘the company’), because the applicant is no longer able to proceed against that company and because she alleged that the respondent was the ultimate decision maker within the company concerning the terms of her employment. The applicant claimed that the respondent should be held liable for the acts of the company, which has been de-registered, because he caused the company to act as it did.

3 The case was heard by the Tribunal in Sydney on 15 November 2002. The applicant was not legally represented and presented her own case. Mr Warren of counsel represented the respondent.

History of the proceedings

4 This case has a long and complex procedural history much of which is set out in Martin v Hunter Personnel Pty Ltd & ors [2002] NSWADT 53, an earlier decision pertaining to the applicant’s complaint (hereinafter the ‘earlier decision’). Consequently, it is unnecessary to provide more than a brief summary of the progress of the complaint from its inception until the hearing on 15 November 2002.

5 By letter dated 12 August 1997 the applicant lodged a complaint under the Anti-Discrimination Act 1977 with the President of the Anti-Discrimination Board against Forsythes Partners and individual partners of that firm, Mr Hugh McKensey, Mr Paul Hankinson, Mr Victor Lewis and Mr Peter Hicks. In this complaint the applicant alleged that she commenced employment with Forsythes Partners on 22 January 1992. She claims that her employment was transferred from Forsythes Partners to Forsythes Personnel Pty Ltd on 1 July 1995. In February 1997 the name of this firm was changed to Hunter…