The Australian Capital Territory (Represented BY the Community Services Directorate) v Complainant DT232023 (Appeal)

In this case, the Australian Capital Territory, represented by the Community Services Directorate, appealed against the decisions of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) which found the Territory had discriminated against a former employee, Complainant DT232023, in contravention of the Discrimination Act 1991. The ACAT had ordered the Territory to compensate Complainant DT232023 for the discrimination. The appeal was heard and determined by a tribunal panel. The Appellant argued that the ACAT had erred in law and fact, leading to the Tribunal's incorrect findings of liability and the subsequent award of compensation. The key legal issues for the tribunal were whether the ACAT correctly applied the law in finding the Territory liable for discrimination and whether the ACAT erred in its assessment of compensation.

The tribunal found that the ACAT had indeed made significant errors in its interpretation and application of the law. Firstly, the ACAT incorrectly imposed the onus of proof on the Territory rather than the Complainant to demonstrate that the criminal record was irrelevant. The tribunal noted that under the Discrimination Act, the onus lies on the complainant to prove discrimination. Secondly, the ACAT failed to properly define and apply the concept of 'detriment' as required by the Act. The tribunal held that the ACAT confused the concept of detriment with the consequences of discriminatory actions, leading to an incorrect finding of liability. Additionally, the tribunal identified a conflict in the ACAT's findings regarding the end of the Complainant's employment, which had significant implications for the compensation award. Based on these errors, the tribunal concluded that the ACAT's decisions were materially flawed.

Consequently, the tribunal set aside the ACAT's orders regarding both liability and damages. The appeal was allowed, and the primary application was dismissed. The tribunal's decision underscores the importance of correctly applying legal tests and principles in discrimination cases and highlights the consequences of failing to do so.