EQUAL OPPORTUNITY — leave to proceed — principles applying to grant of leave — race discrimination in education — ethno-religious origin — victimisation.
Renae Kumar represented the Respondent.
The reasons for the decision can be found here.
McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032
POLICE – Senior Constable – application pursuant to section 84 for relief in relation to unfair dismissal – application by the respondent that application be struck out on the ground that the Commission does not have jurisdiction – bullying and harassment at work – discrimination in the course of employment – unwarranted investigation into conduct outside of work hours – diagnosed with depression/anxiety and deemed unfit for work – no option other than to resign from employment – constructively dismissed – rights of appeal for police officers – comparison of rights conferred by Part 9 of the Police Act with rights conferred by Chapter 2 Part 6 of the Act – Part 9 of the Police Act 1990 establishes exclusive scheme whereby dismissed police officers are able seek relief – no jurisdiction under Chapter 2 Part 6 of the Act to hear and determine the applicant’s unfair dismissal claim – application dismissed.
Michael Seck appeared for the Commissioner of Police.
Muller v Westpac Banking Corporation [2015] NSWCATAD 251
ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - complaint of sex discrimination against employer – whether fair and just for complaint to proceed – complaint lacks substance – leave refused.
Anning v University of Western Sydney [2015] FCA 1049
DISCRIMINATION - racial discrimination - application for leave to appeal - application refused.
Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139
ADMINISTRATIVE LAW – whether court took into account irrelevant considerations – whether court failed to take into account relevant considerations – procedural fairness – unrepresented litigant prevented from putting submission.
APPEAL AND NEW TRIAL – primary judge did not address the elements of the legislation – postulating alternatives but failing to make a finding – inconsistencies in evidence unresolved – forensic advantage of trial judge – fact finding process of trial judge – decision at trial “glaringly improbable” or “contrary to compelling inferences” – review of findings of fact based on trial judge’s assessment of credibility of witnesses – whether findings inconsistent with incontrovertibly established facts – credibility undermined by other evidence unchallenged, unanswered and ostensibly reliable – power of appellate court to set aside findings – errors made by primary judge causing trial to miscarry – proceeding remitted to Federal Circuit Court for retrial – retrial limited to matters agitated on appeal.
EVIDENCE – standard of proof in civil proceedings – standard of proof in discrimination proceedings – balance of probabilities – higher standard of proof erroneously applied – requirement to take into account gravity of matter – drawing of inferences – failure to reconcile conflicting evidence – benefit of doubt on basis that respondent was unsophisticated and obtuse – conflicting conjectures about respondent’s knowledge and intent – failure to weigh up the strength of cumulative evidence – failure to assess demeanour of key witness in light of all the evidence.
HUMAN RIGHTS – discrimination – racial discrimination – correct test to be applied under s 9(1) of the Racial Discrimination Act 1975 (Cth) – act involving distinction, exclusion, restriction or preference – discrimination based on race, colour, descent or national or ethnic origin – purpose or effect of nullifying or impairing – recognition, enjoyment or exercise of any human right or fundamental freedom – on equal footing – right to just and favourable conditions of work – causal nexus between act and race – act done for more than one reason – vicarious liability for racial discrimination – comments referring to “black babies” and “Coon cheese” likely to offend an Aboriginal person – whether racist remarks may constitute racial discrimination – whether occasional politically incorrect banter has requisite discriminatory purpose or effect – whether response to complaint is a relevant consideration in determining whether there was discrimination – whether remarks were innocent – racially-based remarks may affect a person’s self-worth and disadvantage them in their conditions of work – subjective sense of injustice.
HUMAN RIGHTS – termination of complaint – Australian Human Rights Commission – application to Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Siddique v Director General of the Department of Education and Communities NSW [2015] NSWCATAD 27
DISCRIMINATION - disability in the area of employment - Administrative Decisions Tribunal Act 1997 (NSW) - Anti-Discrimination Act 1977 (NSW) - Civil and Administrative Tribunal Act 2013 (NSW).
Siddique v Director General of the Department of Education and Communities NSW [2015] NSWCATAD 27.