Zhang v Blinds Pty Ltd

[2010] NSWADT 91

CITATION:	Zhang v Blinds Pty Ltd [2010] NSWADT 91
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Pollem Zhang Respondent: Blinds Pty Ltd trading as Blinds by Peter Meyer
FILE NUMBER:	081042
HEARING DATES:	8 September 2008 29 October 2008 21 November 2008
SUBMISSIONS CLOSED:	27 February 2009
DATE OF DECISION:	12 April 2010
BEFORE:	Smyth M - Judicial Member; Mooney L - Non-Judicial Member; Weule B - Non-Judicial Member
CATCHWORDS:	isability Discrimination Employment - Victimisation
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42, Commissioner of Fire Brigades (New South Wales) v Terence Lavery [2005] NSWSC 268 Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 Fuad v Telstra Corporation [2009] NSWADT 251 Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186 Mitchell v Clayton Utz & Ors [2009] NSWADT 266 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 O'Callaghan v Loder [1983] 3 NSWLR 89 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Zhang v Blinds Pty Ltd [2007] NSWADT 158 Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24
REPRESENTATION:	Applicant Representative: Ms Wang agent Respondent Representative: Mr Rochfort agent
ORDERS:	The complaints are dismissed.

REASONS FOR DECISION

Introduction

1 Mr Zhang complained of disability discrimination and victimisation under the Anti-Discrimination Act 1977 (NSW) Act [AD Act]. His complaints were heard by the Tribunal at first instance and dismissed. [Zhang v Blinds Pty Ltd [2007] NSWADT 158 ].

2 Mr Zhang appealed that decision and the Appeal Panel of this Tribunal set aside the Tribunal’s orders and remitted the case to the Tribunal with a different judicial member, to be decided in accordance with the Appeal Panel’s directions. [Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24]. The Appeal Panel’s decision was not an opportunity for Mr Zhang to run his whole case again. The Appeal Panel indicated that fresh evidence should only be considered where it was necessary to determine the issues set out by the Appeal Panel. The Appeal Panel set out the following task for this Tribunal [at 57]:

1. Determine whether to allow the applicant to characterise the victimisation complaint, in the alternative, as a complaint of disability discrimination, if such a characterisation is still pressed. That issue is to be determined taking into account the following matters:
a) the date on which Mr Zhang first sought to characterise the victimisation complaint as a complaint of disability discrimination;
b) the prejudice to Mr Zhang if the complaint is not characterised as complaint of disability discrimination;
c) the prejudice to the respondent if Mr Zhang is permitted to characterise the victimisation complaint as a complaint of disability discrimination.
2. If permission is granted, determine whether Mr Zhang being stood down on 19 February 2004 constitutes unlawful discrimination on the ground of disability.
3. Determine whether Mr…