Firth v Coles Supermarkets Australia Pty Ltd [2022] NSWCATAD 156

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Firth v Coles Supermarkets Australia Pty Ltd [2022] NSWCATAD 156 Hearing dates: 21-24 February and 5 April 2022 Date of orders: 18 May 2022 Decision date: 18 May 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: H J Dixon SC, Senior Member Prof J Goodman-Delahunty, General Member Decision: Application dismissed Catchwords: ANTI-DISCRIMINATION – disability discrimination - s 49B(1)(a), 49D(2)(d) direct and indirect – victimisation – s 50 of the Anti-Discrimination Act 1977 (NSW) Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Mercieca v IHG Hotels Management Group (Australia) Pty Ltd and Salter Brothers (Coogee Beach) Pty Ltd [2022] NSWCATAD 63 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 Texts Cited: None Category: Principal judgment Parties: Alster Firth (Applicant) Coles Supermarkets Australia Pty Ltd (Respondent) Representation: Counsel: J Widjaja (Applicant) A Gandar (Respondent) File Number(s): 2020/00253308 Publication restriction: Nil

Reasons for decision 1. Mr Alster Firth (the Applicant), commenced employment with Coles Supermarkets Australia Pty Ltd (the Respondent) on or about 25 October 2013 as an Online Delivery Driver, also known as a Customer Service Agent or CSA, and continues to remain in that employment. 2. The Applicant sustained a workplace injury on 20 May 2015. The injury was to the Applicant's back, a disc desiccation with mild disc bulge. 3. It is accepted by the parties in these proceedings that the workplace injury so sustained is a disability within the meaning of s 4 of the Anti-Discrimination Act 1977 (NSW) (the Act). 4. On 14 December 2019 the Applicant made a complaint to the Anti-Discrimination Board of NSW concerning certain incidents that occurred at his workplace and various complaints about the handling of those complaints by the Respondent. 5. Following the unsuccessful resolution of that complaint, and by leave of the Tribunal, the Applicant was permitted to amend the complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 31 August 2020 so as to incorporate additional complaints against the Respondent in respect of incidents during the period 1 August 2017 to 14 July 2020 which were then relied upon by the Applicant in points of claim filed by him dated 3 May 2021. 6. Counsel for the parties have, by agreement, and in a most helpful manner, dissected those complaints to particularise what may be described as "sub-claims" in relation to each of the points of claim as follows: Sub-claim Points of Claim paras Alleged conduct Alleged basis of claim 1. 3 – 7 Alleged repeated unreasonable behaviour by a colleague, Ms Carol Simon, between August 2017 and 22 November 2017. Direct discrimination: ss 49B(1)(a) and 49D(2)(d) 2. 11 – 14 Alleged conduct by Ms Simon between 23 November 2017 and 14 December 2018 following a complaint of discrimination to Coles management on 22 and 23 November 2017 Direct discrimination: ss 49B(1)(a) and 49D(2)(d). Victimisation: s 50. 3. 15 – 23 Alleged conduct by Ms Donna Heaton, Coles Store Manager, being alleged threats of performance management or forced movement to a different role on 15 June 2018 and 22 March 2019. Indirect discrimination: ss 49B(1)(b); 49D(2)(a), (d). Victimisation: s 50. 4. 24 – 28 Alleged conduct by Ms Heaton in requiring Mr Firth to do a workplace behaviour course on 16 August 2018. Direct discrimination: ss 49B(1)(a); 49D(2)(a), (d). Victimisation: s 50. 5. 29 – 35 Alleged conduct by Ms Leasa Bayley, a Coles Online Manager, being an alleged requirement on Mr Firth to lift crates outside his alleged medical restrictions on 26 October 2018. Indirect discrimination: ss 49B(1)(b) and 49D(2)(d). Victimisation: s 50. 6. 36 – 39 Alleged conduct by Ms Bayley in allegedly directing Mr Firth not to talk to work colleagues on 2 January 2019. Direct discrimination: ss 49B(1)(a); 49D(2)(a), (d). Victimisation: s 50. 7. 40 – 43 Alleged conduct by Ms Heaton in allegedly placing limitations on Mr Firth's ability to take toilet breaks on 29 March 2019. Direct discrimination: ss 49B(1)(a); 49D(2)(d). Victimisation: s 50. 8. 44 – 47 Alleged conduct by Ms Heaton in allegedly directing Mr Firth not to take an EFTPOS carry bag or spare battery on his delivery runs on 29 March 2019. Direct discrimination: ss 49B(1)(a); 49D(2)(a), (d). Victimisation: s 50. 9. 48 – 53 Alleged conduct by Mr Anthony Dalgleish, a former Coles Regional Manager, in creating allegedly fraudulent emails. Direct discrimination: ss 49B(1)(a); 49D(2)(d). Victimisation: s 50.