Filla v Independent Community Living Australia [2022] NSWCATAD 108

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Filla v Independent Community Living Australia [2022] NSWCATAD 108 Hearing dates: 17 March 2022 Date of orders: 30 March 2022 Decision date: 30 March 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: Leave for the complaint against Independent Community Living Australia 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) Public Health Act 2010 (NSW) Public Health (COVID-19 Additional Requirements for Delta Outbreak) Order (No 2) 2021 Public Health (COVID-19 Care Services) Order (No 2) 2021 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 Category: Principal judgment Parties: Stephen Filla (Applicant) Independent Community Living Australia (Respondent) Representation: Solicitors: Applicant (self-represented) B Campos (Independent Community Living Australia) (Respondent) File Number(s): 2022/00016165 Publication restriction: None

REASONS FOR DECISION 1. Independent Community Living Australia (the Respondent), is a service provider for people with disabilities. 2. Mr Martin Filla, the Applicant, was employed by the Respondent for approximately three years as a Disability Support Worker. Following the COVID-19 pandemic, the Respondent was required to comply with Public Health (COVID-19 Additional Requirements for Delta Outbreak) Order (No 2) 2021 (the "PHO-1") made under s 7 of the Public Health Act 2010 (NSW) (the "PHA"). PHO-1 included, amongst other things, vaccination requirements for disability service workers performing work in local government areas of concern prior to 25 October 2021. A second public health order, also made under s 7 of the PHA: Public Health (COVID-19 Care Services) Order (No 2) 2021 (the "PHO-2") was in force that included, amongst other things, vaccination requirements for all disability service workers from 25 October 2021 (PHO-1 and PHO-2 collectively referred to as "the PHO's"). 3. The PHO's required all disability service workers, including Mr Filla, to be vaccinated unless exempt, if, they were to work within the sector. Mr Filla has refused to be vaccinated. Initially, Mr Filla was only able to perform his position in a limited capacity with clients of the Respondent on sites outside the local government areas of concern due to his vaccination status. At no stage did Mr Filla prior to his employment being terminated provide evidence of a valid exemption to be immunised against COVID-19. Indeed, the Respondent submits Mr Filla said he was not eligible for a medical exemption. Mr Filla simply chose not to be vaccinated for personal reasons, which include but are not limited to, his belief that COVID-19 does not exist and there being insufficient available evidence about the efficacy and long-term effects of COVID-19 vaccines. 4. On 29 November 2021, Mr Filla's employment was terminated with notice because his vaccination status meant he was not able to lawfully perform the inherent requirements of his position as a Disability Support Worker for the indefinite future. 5. On 4 November 2021, the President at Anti-Discrimination New South Wales ("the President") received a complaint from Mr Filla. The complaint alleges that by being subjected to a vaccine mandate from his employer, he was discriminated against in his employment because of a presumed disability: "possible future sickness from this flu-like sickness called COVID-19". 6. The President decided to accept the complaint for investigation under s 89B of the Anti-Discrimination 1977 (NSW) ("the Act") for the period 25 October 2021 to 4 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. 7. I confirmed with Mr Filla and Mr Campos the material which was before me for consideration. That material included the bundle referred to the Tribunal from the President, written submissions of Mr Filla (14 March 2022) and written submissions of the Respondent (10 March 2022 and 14 March 2022).