Najmitdinov v Woolworths Group Limited

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Najmitdinov v Woolworths Group Limited [2019] NSWCATAD 51
Hearing dates:	22 March 2019
Date of orders:	28 March 2019
Decision date:	28 March 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy ADCJ, Deputy President
Decision:	The applicant's application for an interim order is refused.
Catchwords:	ANTI-DISCRIMINATION – application for interim order – prima facie case – balance of convenience
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 Cardile v LED Builders Pty Ltd [1999] HCA 18 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 Ivory v Griffith University [1996] QADT 15 White v University of Sydney (1992) EOC 92-462
Texts Cited:	Rees, Rice and Allen, Australian Anti-Discrimination Law, Text, Cases and Materials (3rd ed, 2018, The Federation Press)
Category:	Procedural and other rulings
Parties:	Azizkhon Najmitdinov (Applicant) Woolworths Group Limited (Respondent)
Representation:	Solicitors: A Najmitdinov (Self Represented)(Applicant) Ashurst (Respondent)
File Number(s):	2019/00049650
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. Mr Najmitdinov is employed by Woolworths Group Limited as a customer service representative. Following incidents involving Mr Najmitdinov on 18 and 23 January 2019 Woolworths gave him the opportunity to demonstrate why his employment should not be terminated. Three days later, he complained to the President of the Anti-Discrimination Board. In that complaint, and in further information provided over the following fortnight, Mr Najmitdinov alleged that Woolworths had discriminated against him on the ground of disability and victimised him on two separate occasions: Anti-Discrimination Act 1977 (NSW), s 49D(2) and s 50.

2. Before the Board investigated these complaints, Mr Najmitdinov applied to the Tribunal for an interim order to preserve the status quo by preventing Woolworths from terminating his employment. For the reasons given below, I have refused the application for an interim order. The Board will continue with its investigation of Mr Najmitdinov’s complaints.

Interim orders - legal principles

3. The Tribunal has power to make an interim order under s 105(1)(c) of the Anti-Discrimination Act:

(1)   The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:

(a)   to preserve the status quo between the parties to the complaint, or

(b)   to preserve the rights of the parties to the complaint, or

(c)   to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,

pending determination of the matter the subject of the complaint.

(2) Section 89 of the Administrative Decisions Tribunal Act 1997 applies to an interim order of the Tribunal in the same way…