Zhang v Blinds Pty Ltd - [2007] NSWADT 158

Set aside by Appeal:

CITATION: Zhang v Blinds Pty Ltd [2007] NSWADT 158

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Pollem Zhang
RESPONDENT
Blinds Pty Ltd

FILE NUMBER: 051027

HEARING DATES: 21 September 2005, 22 September 2005, 23 - 24 February 2006, 6 - 7 June 2006, 19 August 2006

SUBMISSIONS CLOSED: 5 March 2007

DATE OF DECISION:
25 July 2007

BEFORE: Ireland G - Judicial Member; Mooney L - Non Judicial Member; Weule B - Non Judicial Member

CATCHWORDS: Disability Discrimination - In work - Victimisation

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

REPRESENTATION:
APPLICANT
D Wang, agent
RESPONDENT
P Rochefort, agent

ORDERS: 1. The complaints of disability discrimination made by the applicant against the respondent be dismissed.; 2. The complaint of victimisation made by the applicant against the respondent be dismissed.

Nature of Complaints

1 The matters for determination by the Tribunal relate to two complaints made by the applicant to the Anti-Discrimination Board (ADB). The first complaint was lodged on 11 August 2003 and related to a number of complaints of unlawful discrimination in employment. The second complaint was lodged by the applicant on 26 February 2004 and was a complaint of victimisation.

2 After investigating the complaints, the President of the ADB determined that the complaints of unlawful discrimination on the ground of disability be limited to the period from 11 February 2003 to 11 August 2003. The claim of victimisation is limited to the period from 19 February 2004 to 26 February 2004.

3 The hearing of the inquiry into the complaints before the Tribunal ranged over a long period commencing on 21 September 2005 and concluding on 9 August 2006. A total of seven hearing days was required to complete the evidence presented to the Tribunal by the parties. A timetable for the presentation of written submissions by the parties’ representatives was extended on two occasions at the request of the representative of the applicant. The process of the written submissions was not completed until 5 March 2007.

Factual Background

4 To comprehend the circumstances relating to the complaints, it is necessary to set out the most relevant of the events which gave rise to the complaints:

- On 2 August 1999, the applicant resigned his position with his then employer, Silent Gliss Pty Ltd.

- On 4 August 1999, the applicant suffered a work-related injury while still employed with Silent Gliss Pty Ltd. The injury resulted in a severe back injury which rendered the applicant totally unfit for work. The applicant made a claim for Workers Compensation which was accepted by the insurer to Silent Gliss Pty Ltd.

- As a result of the injury, the respondent extended the starting date for the applicant until the applicant was fit to work.

- In October 1999 the Workers Compensation insurer approved a rehabilitation program for the applicant.

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: [2007] NSWADT 158
Decision Date: 25 July 2007

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered a case where the applicant, Mr. Zhang, alleged disability discrimination and victimisation by the respondent, Blinds Pty Ltd. Mr. Zhang, who has a physical disability, claimed that the respondent's actions in terminating his employment and subsequent refusal to provide a reference amounted to unlawful discrimination and victimisation under the Disability Discrimination Act 1992. The court was tasked with determining whether the respondent's conduct contravened the Act and if the termination of employment and refusal to provide a reference were retaliatory actions.

The central legal issues for the court to resolve were whether Blinds Pty Ltd's actions constituted disability discrimination and victimisation. The court needed to assess whether the termination of Mr. Zhang's employment and the refusal to provide a reference were based on his disability and whether these actions were retaliatory in nature. Additionally, the court had to examine if the respondent had acted in accordance with the principles of natural justice and procedural fairness when making the decision to terminate Mr. Zhang's employment.

In its reasoning, the court found that Blinds Pty Ltd did not engage in disability discrimination or victimisation against Mr. Zhang. The court held that the termination of Mr. Zhang's employment and the refusal to provide a reference were not based on his disability but rather due to performance issues and a lack of trust. The court further determined that the respondent had followed procedural fairness by providing Mr. Zhang with an opportunity to respond to the allegations against him. Consequently, the court dismissed both the discrimination and victimisation complaints.

As per the orders, the complaints of disability discrimination and victimisation made by Mr. Zhang against Blinds Pty Ltd were dismissed. The court found no evidence to support the claims that the respondent's actions were discriminatory or retaliatory in nature.

Orders

Orders of the court

1. The complaints of disability discrimination made by the applicant against the respondent be dismissed.; 2. The complaint of victimisation made by the applicant against the respondent be dismissed.

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:	Zhang v Blinds Pty Ltd [2007] NSWADT 158
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Pollem Zhang RESPONDENT Blinds Pty Ltd
FILE NUMBER:	051027
HEARING DATES:	21 September 2005, 22 September 2005, 23 - 24 February 2006, 6 - 7 June 2006, 19 August 2006
SUBMISSIONS CLOSED:	5 March 2007
DATE OF DECISION:	25 July 2007
BEFORE:	Ireland G - Judicial Member; Mooney L - Non Judicial Member; Weule B - Non Judicial Member
CATCHWORDS:	Disability Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
REPRESENTATION:	APPLICANT D Wang, agent RESPONDENT P Rochefort, agent
ORDERS:	1. The complaints of disability discrimination made by the applicant against the respondent be dismissed.; 2. The complaint of victimisation made by the applicant against the respondent be dismissed.