Peck v Commissioner of Corrective Services

CITATION:	Peck v Commissioner of Corrective Services [2002] NSWADT 122
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Mark Peck RESPONDENT Commissioner of Corrective Services
FILE NUMBER:	8 of 1998
HEARING DATES:	18/03/2002, 19/03/2002, 20/03/2002
SUBMISSIONS CLOSED:	03/20/2002
DATE OF DECISION:	07/16/2002
BEFORE:	Ireland G - Judicial Member; McDonald O - Member; Silva A - Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Occupational Health and Safety Act 1983 Public Sector Management (General) Regulation 1988 Public Sector Management Act 1988
CASES CITED:	Kit v Tourism Commission (1987)11NSWLR686 Waters v Public Transport Corporation (1991)173CLR349 X v Commonwealth of Australia (2000)74ALJR176
REPRESENTATION:	APPLICANT A Healey, barrister RESPONDENT T Anderson, barrister
ORDERS:	1. The Tribunal finds that the complaint of unlawful discrimination of the Applicant by the Respondent has been substantiated.; 2. The Tribunal orders that the Respondent pay to the Applicant by way of damages for the unlawful discrimination, an amount of $40,000.00.; 3. Leave is reserved for the Applicant to apply to the Tribunal for an order for costs, within 21 days of the date of publication of this decision.

Background

1 This is an inquiry by the Tribunal into a complaint made by the Applicant, Mr Mark Peck against the Commissioner of Corrective Services. It arises out of a complaint lodged by Mr Peck with the Anti-Discrimination Board (“the Board”) on 9 January 1995. On 30 January 1998 the Board referred the complaint for inquiry by the Tribunal, pursuant to section 94(1) of the Anti-Discrimination Act 1997 (“the Act”).

2 The holding of the inquiry has been delayed, at the request of the parties, pending the decision of the Appeal Panel of the Administrative Decisions Tribunal in a complaint of Mr Anthony Maxwell against the Commissioner of Corrective Services. The Appeal Panel delivered its decision on 18 July 2001. That decision reported at (EOD)[2001] NSW ADTAP 21 “The Maxwell decision” will be referred to at length later in this decision.

3 The complaint in this inquiry relates to the rejection by the Respondent of Mr Peck’s application to be employed by the Respondent to the position of Overseer Catering at the Respondent’s minimal security establishment at St. Heliers Correctional Centre. Mr Peck alleges that the Respondent discriminated against him in rejecting his application for employment on the ground of his disability, in breach of section 49B(1)(a) and section 49D(a) and (b) of the Act.

4 Mr Peck applied for the position, on or about 2 July 1995, in response to an advertisement in the Sydney Morning Herald. The advertisement described the position as Overseer Catering, and stated that the essential requirements for the position “must meet prison officer entry requirements”. The other essential requirements related to experience and certification in commercial cookery.

5 Mr Peck was interviewed by the Department and subsequently was informed, in an informal manner, that he was the successful Applicant. Five days later on 10 August 1995 he was advised by the Department that he was offered the job…