Petek v TAFE NSW [2022] NSWCATAD 105

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Petek v TAFE NSW [2022] NSWCATAD 105 Hearing dates: 17 March 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: (1) Leave for the complaint against TAFE NSW to proceed is refused. Catchwords: HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave ­­­­­­ Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Category: Principal judgment Parties: Stephen Petek (Applicant) TAFE NSW (Respondent) Representation: Solicitors: Applicant (self-represented) Minter Ellison (Respondent) File Number(s): 2022/00051040 Publication restriction: None

REASONS FOR DECISION 1. Mr Stephen Petek is a part-time teacher with TAFE NSW (the Respondent). Following the COVID-19 pandemic, the Respondent introduced a policy which requires, amongst other things, for its employees to evidence their vaccination status against COVID-19, or, provide a valid exemption should they not be able to be vaccinated (the Policy). Failure to do so can lead to disciplinary action and/or dismissal.­­ 2. Mr Petek alleges that the Policy constitutes discrimination on the basis of disability in employment. 3. On 24 November 2021, the President at Anti-Discrimination New South Wales (the President) received a complaint from Mr Petek. The complaint alleges that being subjected to a vaccine mandate from his employer, he was discriminated against because of a presumed disability (being the disease of SARs-COV-2) (COVID-19). 4. The President decided to accept the complaint for investigation under s 89B of the Anti-Discrimination Act 1977 (NSW) (the Act) for the period 22 to 24 November 2021 and to decline the complaint on the basis that it is lacking in substance under s 92(1)(a)(i) of the Act.