Najmitdinov v Woolworths Group Limited

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Najmitdinov v Woolworths Group Limited [2020] NSWCATAD 88
Hearing dates:	4 March 2020
Date of orders:	23 March 2020
Decision date:	23 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	(1) Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).
Catchwords:	HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Bonella v Wollongong City Council [2001] NSWADT 194 Burns v Sunol (No 2) [2017] NSWCATAD 236 Jones & Anor v Ekermawi [2009] NSWCA 388 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Langley v Niland & Anor (1981) 2 NSWLR 104 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Najmitdinov v Woolworths Group Limited [2019] NSWCATAD 51 Najmitdinov v Woolworths Group Limited [2020] NSWCATAP 15 Sivananthan v Commissioner of Police [2001] NSWADT 44
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Azzkhon Najmitdinov (Applicant) Woolworths Group Limited (Respondent)
Representation:	Counsel: D Lloyd (Respondent)     Solicitors: Ashurst solicitors (Respondent) Applicant (Self Represented)
File Number(s):	2019/00294587
Publication restriction:	Nil

REASONS FOR DECISION

1. In January 2019, former customer service officer Mr Azizkhon Najmitdinov lodged a complaint (the Complaint) with the President of the Anti-Discrimination Board (the President) alleging that in contravention of the Anti-Discrimination Act 1977 (NSW) (the Act) his then employer, Woolworths Group Limited, discriminated against him on the ground of disability and victimised him. After investigating these allegations, the President exercised the discretion to decline Mr Najmitdinov’s Complaint, on the ground that it was “lacking in substance”: s 92(1)(a)(i) of the Act. At Mr Najmitdinov’s request, the President referred the Complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act.

2. In broad terms, the conduct the subject of the Complaint relates to:

1. The changes made to Mr Najmitdinov’s shift roster following a request made by Mr Najmitdinov on 6 June 2018, requesting that his rosters be varied to accommodate his health problems. Mr Najmitdinov contends that this conduct constitutes discrimination on the ground of disability in the area of employment (s 49D of the Act).

2. Disciplinary action taken by Woolworths, including the issue of a “final written warning” and a "show cause" letter on 14 September 2018 and 11 February 2019, respectively. Mr Najmitdinov contends that this constitutes victimisation (s 50 of the Act).

3. Because the President has exercised the discretion to decline the Complaint, without leave of the Tribunal it cannot proceed: s 96(1) of the Act. Mr Najmitdinov urges the Tribunal to grant leave, submitting that there was no proper basis for the conclusion reached by the President that the Complaint lacks substance. Woolworths disagrees and urges the Tribunal to refuse leave.

4. For the reasons that follow, I have decided not to grant leave for the…