Peng v NSW Health Pathology

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Peng v NSW Health Pathology [2017] NSWCATAD 288
Hearing dates:	15 August 2017
Date of orders:	28 September 2017
Decision date:	28 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. Leave is granted for Mr Peng to be represented by an agent, Ms Collins. 2. Leave is granted for the applicant’s complaint of disability discrimination to proceed.
Catchwords:	HUMAN RIGHTS – disability discrimination in employment – where President of the Anti-Discrimination Board has declined a complaint of disability discrimination in employment as lacking in substance – where employer relies on unjustifiable hardship exception – whether it is fair and just for leave to be given for complaint to proceed
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), s 49B, s 49C, s 49D, s 92, s 96, s 104
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Moxon (No 2) v Westbus Pty Ltd [2002] NSWADTAP 24 Pop v Taylor [2015] FCCA 1720
Category:	Procedural and other rulings
Parties:	Wei Xian Peng (Applicant) NSW Health Pathology (Respondent)
Representation:	J Gautray (NSW Health Pathology) (Respondent) V Hiley (NSW Health Pathology) (Respondent)   F Collins (agent for Applicant)
File Number(s):	2017/00194166
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. Mr Peng complains that his former employer, NSW Health Pathology, unlawfully terminated his employment on the ground of his disability: Anti-Discrimination Act 1977 (NSW), s 49D(2)(c). Mr Peng says that he has had pain in his wrists since 2008 and is unable to work full-time or perform some of the tasks of his position. He says that if his employer had rotated his duties in 2015, as recommended by an independent medical examiner, he would have been able to continue working.

2. The President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). The issue in this case is whether it is fair and just for the Tribunal to give Mr Peng permission, or “leave”, for his complaint of disability discrimination to go ahead: Anti-Discrimination Act, s 96.

3. I have decided to give Mr Peng permission for his complaint to go ahead. It appears that NSW Health Pathology acknowledges that it has breached s 49D(2)(c) of the Anti-Discrimination Act by dismissing Mr Peng but is relying on the “unjustifiable hardship” exception in s 49D(4). Based on their correspondence to Mr Peng, NSW Health Pathology stated that his employment was terminated because he is unable to carry out the inherent requirements of the position. Alternatively, I understand NSW Health Pathology to be saying that in order to carry out the inherent requirements of the position, Mr Peng requires services or facilities which would impose unjustifiable hardship on them to provide: Anti-Discrimination Act, s 49D(4).

4. When relying on an exception, the onus is on the employer to prove that the exception applies: Anti-Discrimination Act, s 104.…