WSOL & JOHN JAMES MEMORIAL HOSPITAL (Discrimination)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WSOL & JOHN JAMES MEMORIAL HOSPITAL (Discrimination) [2011] ACAT 81

DT 09/10

Catchwords:            DISCRIMINATION – race – power of tribunal limited by authorising laws – power of tribunal limited to complaints referred by the Human Rights Commission – burden of proof – burden not satisfied – nexus between matters complained of and race not established  - no evidence of loss – applicant already compensated for injuries the subject of the complaint

List of legislation:     ACT Civil and Administrative Tribunal Act 2008, s 9

Discrimination Act 1991

Human Rights Commission Act 2005 s 53E

List of cases:            De Dominico v Marshall (2001) 107 FCR 11

[2010] ACAT 64

Jackson v Sterling Industries (1987) 162 CLR 612

Tribunal:                 Ms L. Crebbin – General President

Date of Orders:  15 September 2011

Ex-tempore Reasons for Decision:            15 September 2011

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL     )         

DT 10 of 2009

RE:LOLITA WSOL

Applicant

AND:JOHN JAMES MEMORIAL HOSPITAL

Respondent

ORDERS

Tribunal:Ms L. Crebbin, General President

Date of Order:        15 September 2011 

The Tribunal Orders that:

1.   The application/complaint is dismissed.

………………………………..

Signed  Ms L. Crebbin

General President

EX TEMPORE REASONS FOR DECISION

1. These reasons for decision relate to a complaint referred to the then Discrimination Tribunal by the ACT Human Rights Commission under section 53 of the Human Rights Commission Act 2005.  The referral was made initially in April 2008.  There was a hearing before the Discrimination Tribunal, an appeal in respect of that hearing to the Supreme Court and a referral back to this tribunal for rehearing.

2. The rehearing occurred on 11 November 2009.  I am satisfied that the transitional arrangements contained in the legislation that gave effect to the abolition of the former Discrimination Tribunal and the establishment of this tribunal, have the effect of empowering this tribunal to consider and determine the referral even though it occurred before this tribunal was brought into existence.

3. The tribunal regards complaints referred to it by the Human Rights Commission as applications made to the tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008.  The complainant becomes the applicant for the purpose of the proceedings before this tribunal.  In this case, the applicant is Ms Lolita Wsol.  The respondent is the entity she complained to the Human Rights Commission about, John James Memorial Hospital.

4. The events that led to the referral are as follows:

   (i)      On 12 November 2004 Ms Wsol sent an application letter to John James Memorial Hospital, (the respondent) seeking employment.

   (ii)    On 1 December 2004 she commenced employment with the respondent as a casual catering assistant. 

   (iii)   On 11 July 2005 her employment status changed from casual to full-time.

   (iv)   In December 2005 she was promoted to the position of supervisor.

   (v)      On 19th or 20 December 2006 she stopped working in circumstances that are disputed.

   (vi)   On 9 March 2006 she completed a worker’s compensation claim seeking compensation for psychological injuries she alleged were caused…