Firth v Coles Supermarkets Australia Pty Limited [2021] NSWCATAD 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Firth v Coles Supermarkets Australia Pty Limited [2021] NSWCATAD 82 Hearing dates: 24 March 2021 Date of orders: 24 March 2021 Decision date: 31 March 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: 1 The complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 31 August 2020 is amended to incorporate the following complaints against the Respondent within the period 1 August 2017 to 14 July 2020: (1) Repeated unreasonable behaviour by Ms Simon from August 2017 to 22 November 2017 in contravention of s49D(2)(d) of the Act; (2) Conduct by Ms Simon following a complaint to management from 23 November 2017 to 14 December 2018 in contravention of s49(2)(D) or s50 of the Act; (3) Conduct by Ms Heaton: threat of performance management or forced movement to a different role within the company if the applicant could not perform the role in the same manner as other employees without the disability on 15 June 2018 and 22 March 2019 in contravention of s49(2)(D) or s50 of the Act; (4) Conduct by Ms Heaton: requirement to do a workplace behavioural course on 16 August 2018 in contravention of s49(2)(D) or s50 of the Act; (5) Conduct by Ms Bayley of requiring the applicant to lift crates that weighed more than 15 kgs (above the medical restrictions) on 26 October 2018 in contravention of s49(2)(D) or s50 of the Act; (6) Conduct by online manager: told not to talk with work colleagues on 2 January 2019 in contravention of s49(2)(D) or s50 of the Act; (7) Conduct by Ms Heaton: limitations on toilet breaks on 29 March 2019 in contravention of s49(2)(D) or s50 of the Act; (8) Conduct by Ms Heaton: direction to not take an EFTPOS carry bag and not to carry a spare battery on 29 March 2019 in contravention of s49(2)(D) or s50 of the Act; (9) Conduct by Mr Dalgleish in creating the fraudulent emails and Coles' conduct thereafter from an unknown date to 14 July 2020 in contravention of s49(2)(D) or s50 of the Act. Catchwords: HUMAN RIGHTS – discrimination – whether power to amend complaint under s 103 of Anti-Discrimination Act 1977 (NSW) should be exercised Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: A Braiding v Charles Sturt University [2015] NSWCATAD 242 Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 (Chand) McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 Singh v South Western Sydney Local Health District [2020] NSWCATAD 263 Thompson v Rail Corporation NSW [2008] NSWADT 329 Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 Texts Cited: None cited Category: Procedural rulings Parties: Alster Firth (Applicant) Coles Supermarkets Australia Pty Ltd (Respondent) Representation: Counsel: L Andelman (Applicant) A Gandar (Respondent)