Abrego v Secretary, Department of Education [2022] NSWCATAD 145

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abrego v Secretary, Department of Education [2022] NSWCATAD 145 Hearing dates: 30 March 2022 Date of orders: 05 May 2022 Decision date: 05 May 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: Leave for the complaint against the Secretary, Department of Education 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 Vaccination of Education and Care Workers) Order 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: Samara Abrego (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitor: Applicant self-represented Kingston Reid (Respondent ) File Number(s): 2022/0059122 Publication restriction: None

REASONS FOR DECISION 1. Ms Abrego, (the Applicant), was employed by Secretary, Department of Education (the Respondent), for a number of years, but relevantly, about ten months as a temporary teacher at a public school in New South Wales. Following the COVID-19 pandemic, the Respondent was required to comply with a Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (the "PHO") made under s 7 of the Public Health Act 2010 (NSW) (the "PHA"). PHO included, amongst other things, vaccination requirements for education workers. 2. The PHO required all education workers in a school, including Ms Abrego, to be vaccinated unless exempt, if, they were to work within the sector. Ms Abrego has refused to provide evidence of being vaccinated, or, a valid exemption. 3. The respondent wrote to the applicant on a number of occasions setting out a directive to all teachers in conformity with the PHO. 4. On 17 November 2021, Ms Abrego's employment was terminated with notice because her vaccination status meant she was not able to lawfully perform the inherent requirements of her position as a teacher because she failed to comply with the respondent's directive and the PHO. She was given four weeks payment in lieu of notice. The termination took effect from 8 November 2021. 5. On 30 October 2021, the President at Anti-Discrimination New South Wales ('the President') received a complaint from Ms Abrego. The complaint alleges that by being subjected to a vaccine mandate from her employer, she was discriminated against in her employment because of a presumed disability: possible future sickness of an infectious disease, namely COVID-19. 6. The President decided to accept the complaint for investigation under s 89B of the Anti-Discrimination Act 1977 (NSW) ("the Act") for the period 18 to 30 October 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 Ms Abrego and Ms Baxter the material which was before me for consideration. That material included the bundle referred to the Tribunal from the President, written material of Ms Abrego and written submissions of the Respondent (25 March 2022, together with the respondent's bundle).