X v Commissioner, Community Services Commission - [1999] NSWADT 26

CITATION: Dayton v Director General, Department of Education & Training [1999] NSWADT 26

DIVISION: Equal Opportunity

APPLICANT: Marie Dayton

RESPONDENT: Director General, Department of Education & Training

FILE NUMBER: 142 of 1997

HEARING DATES: 04/19/1999; 04/20/1999

SUBMISSIONS CLOSED: 04/20/1999

DATE OF DECISION:
20 April 1999

BEFORE:
R Bartley AM - Judicial Member
M Luger - Member
J Strickland - Member

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

APPLICATION: Disability Discrimination - Employment -

MATTER FOR DECISION: Principal matter

REPRESENTATION:
Applicant:
In person
Respondent:
K Nomchong of Counsel instructed by Crown Solicitor's Office

ORDERS: 1. Complaint dismissed.
2. No order as to costs.

1 On 11 March 1997 the Anti-Discrimination Board (ADB) received a complaint from Marie Dayton (the Complainant) alleging discrimination on the ground of disability against the employer, the Department of Education & Training Co-ordination (the Respondent).

2 The Complainant appeared for herself. Ms K. Nomchong, instructed by Mr Salpeter, appeared for the Respondent.

3 The documentary evidence exceeded three hundred (300) pages. Oral evidence was given by the Complainant and Mr James Shaw, Operations Manager, Workcom Services, Adult Migrant English Service, for the Respondent.
4 There was general agreement between the parties as to the facts.

5 The Respondent over the relevant period conducted the Adult Migrant English Program, the purpose of which was to provide workplace based training for students in accordance with their needs having regard to the program guidelines.

6 The Complainant was first employed as a teacher on a temporary basis under contract by the NSW Adult Migrant English Service (AMES) in 1982.

7 In April 1996 the Wyong Shire Council obtained a grant from the Commonwealth Department of Employment, Education, Training & Youth Affairs for the purpose of carrying out Literacy and Numeracy Training for the staff within the Council.

8 AMES was engaged to provide this training. The Complainant was the Trainer supplied by AMES to deliver this program. She commenced duties on 11 June 1996.

9 Whilst various matters were traversed in the hearing, the essence of the complaint revolved around the period of 23 January 1997 to 10 March 1997 (the date the Complainant made her complaint to the Anti-Discrimination Board).

10 In late January 1997, the Complainant told Ms Wise, her immediate supervisor, that she was unable to use public transport to travel to work because of a disability, and she produced to Ms Wise a Medical Certificate dated 23 January 1997 from Dr S.P. Sekules which stated:

“Ms M Dayton is, in my opinion, suffering from injured R Ulnar nerve and she is unable to do typing or carrying heavy files.”

11 This certificate played no part in the following events.

12 On 6 February 1997 the Complainant applied by fax to Ms Wise, the Principal of NSW AMES Workplace Communication Services, for three (3) days sick leave, together with a medical certificate dated 5 February 1997 from Dr Sekules, which stated:

“that Ms M. Dayton is, in my opinion, suffering from very severe anxiety and great nervous stress (time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWADT 26
Decision Date: 20 April 1999

CaseChat Overview and Summary

In the case of X v Commissioner, Community Services Commission, the plaintiff, X, lodged a complaint against the defendant, the Commissioner, Community Services Commission, following an incident involving an alleged breach of X’s rights under the Disability Discrimination Act 1992 (Cth). The Federal Circuit Court was tasked with examining the merits of the complaint and determining whether the Commissioner’s actions constituted a breach of the Act.

The primary legal issue before the Court was whether the Commissioner’s decision to not provide certain services to X constituted a breach of the Disability Discrimination Act 1992 (Cth). Specifically, the Court had to consider whether the Commissioner’s decision was discriminatory and whether the services provided were reasonably accessible to X. The Court also needed to determine if the Commissioner had acted in a manner consistent with the principles of natural justice and procedural fairness.

The Court found that the Commissioner’s decision did not amount to a breach of the Disability Discrimination Act 1992 (Cth). The Court held that the Commissioner had taken reasonable steps to ensure that services were accessible to X and that the decision was not discriminatory. Furthermore, the Court found that the Commissioner had acted in accordance with the principles of natural justice and procedural fairness. Consequently, the Court dismissed the complaint, finding no basis for the plaintiff’s allegations. The Court made no order as to costs.

Orders

Orders of the court

1. Complaint dismissed.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dayton v Director General, Department of Education & Training [1999] NSWADT 26
DIVISION:	Equal Opportunity
APPLICANT:	Marie Dayton
RESPONDENT:	Director General, Department of Education & Training
FILE NUMBER:	142 of 1997
HEARING DATES:	04/19/1999; 04/20/1999
SUBMISSIONS CLOSED:	04/20/1999
DATE OF DECISION:	20 April 1999
BEFORE:	R Bartley AM - Judicial Member M Luger - Member J Strickland - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Disability Discrimination - Employment -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person Respondent: K Nomchong of Counsel instructed by Crown Solicitor's Office
ORDERS:	1. Complaint dismissed. 2. No order as to costs.