Petek v TAFE NSW

[2022] NSWCATAD 105

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Petek v TAFE NSW [2022] NSWCATAD 105

Hearing dates:

17 March 2022

Date of orders:

25 March 2022

Decision date:

25 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

(1) Leave for the complaint against TAFE NSW to proceed is refused.

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)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Jones & Anor v Ekermawi [2009] NSWCA 388

Category:

Principal judgment

Parties:

Stephen Petek (Applicant)
TAFE NSW (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Minter Ellison (Respondent)

File Number(s):

2022/00051040

Publication restriction:

None

REASONS FOR DECISION

1. Mr Stephen Petek is a part-time teacher with TAFE NSW (the Respondent). Following the COVID-19 pandemic, the Respondent introduced a policy which requires, amongst other things, for its employees to evidence their vaccination status against COVID-19, or, provide a valid exemption should they not be able to be vaccinated (the Policy). Failure to do so can lead to disciplinary action and/or dismissal.­­

2. Mr Petek alleges that the Policy constitutes discrimination on the basis of disability in employment.

3. On 24 November 2021, the President at Anti-Discrimination New South Wales (the President) received a complaint from Mr Petek. The complaint alleges that being subjected to a vaccine mandate from his employer, he was discriminated against because of a presumed disability (being the disease of SARs-COV-2) (COVID-19).

4. The President decided to accept the complaint for investigation under s 89B of the Anti-Discrimination Act 1977 (NSW) (the Act) for the period 22 to 24 November 2021 and to decline the complaint on the basis that it is lacking in substance under s 92(1)(a)(i) of the Act.

Statutory framework and principles governing the grant of leave

5. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If at any stage during the investigation of a complaint, the President is satisfied that it is lacking in substance, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint (s 92(1)(a)(i)). It is this decision of the President which I have jurisdiction in these proceedings.

6. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

7. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

8. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Background facts 

9. Mr Petek contends for the matters which are set out above. In his application he describes the Policy as “An alleged attempted at civil conscription for vaccination via coercion”. He submits that if he does not comply with the Policy he will be terminated, or, he will face disciplinary action on and from 31 January 2022. He sets out three conditions which he must comply. The remedy he seeks is: “removal of policy”. As drawn to my attention by Mr Khouri, the solicitor appearing on behalf of the Respondent, Mr Patek has complied with the Policy. He has produced evidence of a COVID-19 vaccine medical contraindication certificate and remains in the employ of TAFE.

10. In oral submissions, Mr Petek contends that the Policy is the justification of vaccination being required. He submits the Policy is discriminatory where it requires someone to be vaccinated.

11. Mr Khouri submitted Mr Petek is a part-time teacher at TAFE. On 22 November 2021, TAFE introduced the Policy, requiring employees to evidence that they had received two doses of the COVID-19 vaccine, or, evidence that they were exempt and produce a COVID-19 vaccine medical contraindication certificate. The introduction of the Policy was to meet work health and safety obligations to employees. TAFE has to ensure the health and safety of workers within the workplace. The measure has been taken to reduce risk of harm to TAFE employees. Mr Khouri said the Policy was implemented after consultation with TAFE’s workforce.

12. In sum, Mr Khouri submitted that when taking into account the statutory framework, Mr Petek has not demonstrated a substantial reason for leave to be granted. If one takes Mr Petek’s claim at its highest, he has not:

1. Disclosed a disability as defined by s 4 of the Act; and

2. even if disability is established, there is no discrimination.

13. In respect of (a), Mr Khouri submitted the only limb of the definition of ‘Disability’ in s 4 of the Act which, might possible be relevant to the complaint, is subsection (b): “the presence in a person's body of organisms causing or capable of causing disease or illness,”. When considering this part of the definition, Mr Petek can not reasonably demonstrate that he has a ‘disability’ because the complaint is framed in terms of a “presumed illness for contracting SARs-COV-2”. As set out in the reasons of the President, both vaccinated and unvaccinated people can contract COVID-19. The Respondent contends that the complaint does not fit within the definition in s 4 of the Act.

14. In respect of (b), the principles set out in Ekermawi apply, which are that there is no prospect of success. Mr Khouri contends there is no prima facie case of direct or indirect discrimination. TAFE has not treated Mr Petek differently because of any disability as all staff are required to be vaccinated, or, they must be exempt from vaccination. There is no requirement or condition that person with a disability must comply, as all employees must comply with the same Policy.

15. Further, the Respondent says that two exemptions found at ss 49(P) and 54 of the Act apply. As such, the Tribunal should find the complaint is lacking in substance and leave should not be granted.

My consideration

16. The term “Disability” is defined in s 4 of the Act to mean:

"disability"means-- 

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or 

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or 

(c) the malfunction, malformation or disfigurement of a part of a person's body, or 

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or 

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

17. Disability includes past, future and presumed disability as set out in s 49A of the Act:

A reference in this Part to a person's disability is a reference to a disability—

(a) that a person has, or 

(b) that a person is thought to have (whether or not the person in fact has the disability), or 

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or 

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

18. Discrimination on the basis of disability under s 49B of the Act provides:

(1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator-- 

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or 

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. 

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability-- 

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or 

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, 

is taken to be a characteristic that appertains generally to persons who have that disability. 

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

19. Relevantly, discrimination on the ground of disability in relation to employment is prescribed by s 49D as:

(1) It is unlawful for an employer to discriminate against a person on the ground of disability-- 

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or 

(b) in determining who should be offered employment, or 

(c) in the terms on which the employer offers employment. 

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability-- 

(a) in the terms or conditions of employment which the employer affords the employee, or 

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or 

(c) by dismissing the employee, or 

(d) by subjecting the employee to any other detriment. 

20. In my view the claim and the available evidence is lacking in substance.

21. I agree with the Respondent’s submissions that Mr Petek has not demonstrated with sufficient precision what his disability is. In oral submissions, Mr Patek said that he was medically compromised because of a diagnosis of cancer and he could not be immunised against COVID-19. While there was no evidence before me in this regard, I accept that this is the case and that Mr Petek has given to the Respondent a medical certificate to that effect. The medical certificate has been accepted by the Respondent. If one is to accept that Mr Petek’s disability as being his diagnosis of cancer, there is no evidence before me that he has any prospect of success in his complaint of discrimination on this basis for the reasons I set out below. Leave would, therefore, not be granted.

22. However, Mr Petek describes his disability as being a presumed disability, namely the prospect that he may contract COVID-19 if he is not immunised against it. I do not accept that this amounts to a ‘disability’ within the meaning of s 4 of the Act as both vaccinated and non-vaccinated people can contract COVID-19. In that sense, I am not satisfied Mr Petek could reasonably establish that he has a disability within the terms of s 4 of the Act.

23. If, Mr Petek, is able to establish that he has a disability within the definition in s 4 of the Act, I am also not satisfied that he has demonstrated that he has an arguable case in which leave to proceed should be granted for the following reasons.

24. First, there is no prima facie evidence of either direct or indirect discrimination. Mr Petek confirmed at the hearing that his complaint is one if indirect discrimination. In considering this submission, I am not satisfied that there is any condition or requirement that a person with a disability such as the one contended by Mr Petek must comply. All employees are required to comply with the Policy. Mr Petek is not being treated in any way differently to other employees who do not have a disability. There is no evidence before me that the complaint would reasonably meet the requirements of ss 49A and 49D of the Act.

25. Second, the exception in s 49P of the Act is apposite such that the provisions in Part 4A do not apply against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health. I find that the Policy was designed and implemented by the Respondent and is reasonably necessary to protect TAFE employees and in doing so public health.

26. Third, the exception in s 54 of the Act in my view operates where the vaccine mandate contained in the Policy appears to have been made under the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021.

27. I consider it fair and just to refuse leave because the claim is lacking in substance.

28. Leave to proceed is refused.

Order

1. Leave for the complaint against TAFE NSW to proceed is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 25 March 2022