Morrow v Secretary, Department of Education [2022] NSWCATAD 409

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Morrow v Secretary, Department of Education [2022] NSWCATAD 409 Hearing dates: 4 October 2022 Date of orders: 22 December 2022 Decision date: 22 December 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S E Frost, Senior Member J Herberte, Member Decision: The Applicant's complaint of discrimination on the ground of disability is dismissed. Catchwords: HUMAN RIGHTS – Discrimination – Context – Employment – Applicant permanently unfit to carry out the inherent requirements and demands of his substantive position HUMAN RIGHTS – Discrimination – Grounds – Disability discrimination – Applicant directed to take leave while medical retirement considered Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106 Tebb v State of New South Wales [2021] NSWCATAD 104 Texts Cited: None cited Category: Principal judgment Parties: Carlos Morrow (Applicant) Secretary, Department of Education (Respondent) Representation: Counsel: D Bhutani (Applicant) T Wong (Respondent)

Solicitors: NEW Law Pty Ltd (Applicant) Clayton Utz (Respondent) File Number(s): 2022/00039578 Publication restriction: No restriction

Reasons for decision

Introduction 1. In 1993 Carlos Morrow started working with the NSW Department of Education as a teacher of woodwork and computer skills (since restyled Technology and Applied Studies, or TAS). 2. Shortly after commencing his teaching career Mr Morrow was involved in a serious motorcycle accident which resulted in the above-elbow amputation of his right arm and the above-knee amputation of his right leg. He returned to work in August 1993 and has been with the Department ever since. 3. In August 2021 the Department informed Mr Morrow that he was permanently unfit to perform his substantive role of TAS teacher. The Department considered whether any suitable alternative roles might be available for Mr Morrow but was unable to identify any. The Department then notified Mr Morrow it was considering whether he should be medically retired. Mr Morrow was directed to take 'appropriate leave' while the medical retirement process was conducted. He took sick leave and, when that was exhausted, he took some of his long service leave. 4. Eventually the Department decided not to medically retire Mr Morrow and he is undergoing retraining to become a Mathematics teacher. 5. Mr Morrow claims he has been discriminated against on the ground of his disability. The claimed discriminatory action is the Department's direction that he take leave while it was considering whether he should be medically retired. Mr Morrow lodged a complaint with the President of the Anti-Discrimination Board (the ADB). The matter went to conciliation but did not settle. A delegate of the President of the ADB then formed the view that the matter was unable to be resolved by conciliation. The matter has now been referred to the Tribunal for resolution. 6. We have decided that Mr Morrow was not discriminated against on the ground of disability and we dismiss his complaint. Our reasons follow.