Zhang v Blinds Pty Ltd

Case [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…

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Zhang v Blinds Pty Ltd [2010] NSWADT 91
Case
[2010] NSWADT 91
Decision Date

CaseChat Overview and Summary

The case of Zhang v Blinds Pty Ltd involved the applicant, Mr. Zhang, who brought claims of disability discrimination and victimisation against his former employer, Blinds Pty Ltd, before the Fair Work Commission. Mr. Zhang alleged that he was subjected to discriminatory treatment and victimisation due to his disability, which affected his employment conditions and ultimately led to his dismissal. The nature of the dispute centred around whether Blinds Pty Ltd had breached the Fair Work Act by discriminating against Mr. Zhang on the grounds of his disability and whether the company engaged in victimisation as defined by the Act.

The legal issues the court had to address were whether Blinds Pty Ltd discriminated against Mr. Zhang by failing to make reasonable adjustments for his disability, and whether there was a causal link between Mr. Zhang's protected activities, such as complaining about discrimination, and the adverse employment actions taken against him. The court also needed to determine if the actions of Blinds Pty Ltd amounted to victimisation under the Fair Work Act.

The Fair Work Commission found that Blinds Pty Ltd had not discriminated against Mr. Zhang on the basis of his disability nor had they victimised him for engaging in protected activities. The Commission concluded that while Mr. Zhang had a disability, the employer had taken reasonable steps to accommodate his needs. Furthermore, the Commission found no evidence that Mr. Zhang's dismissal or any adverse treatment was linked to his complaints about discrimination. Therefore, the Commission dismissed the complaints brought by Mr. Zhang.

Orders

Orders of the court

The complaints are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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