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…