Lonie v Live Better Services Limited (No 2) [2023] NSWCATAD 98

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lonie v Live Better Services Limited (No 2) [2023] NSWCATAD 98 Hearing dates: On the papers Date of orders: 1 May 2023 Decision date: 01 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member K Stubbs, General Member Decision: 1.The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) 2. The Respondent pay the Applicant wages and superannuation for one shift per week for a 3 month period within 28 days of the date of this order. Catchwords: HUMAN RIGHTS – discrimination on the ground disability – discrimination in work - damages. Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Category: Consequential orders Parties: Kirstie Lonie (Applicant) Live Better Services Limited (Respondent) Representation: Counsel: M McKenney (Applicant) P Moorhouse (Respondent)

Solicitors: Nevin Lenne Gross (Applicant) Ovartis Lawyers (Respondent) File Number(s): 2022/00017366 Publication restriction: None

REASONS FOR DECISION 1. On 17 March 2023 the Tribunal handed down its principal judgement Lonie v LiveBetter Services Pty Ltd [2023] NSWCATAD 60 (the Decision). The Tribunal found that the respondent discriminated against the applicant and consequently the applicant suffered loss. Had the respondent not discriminated against Ms Lonie, Ms Lonie would have been offered employment as a Disability Services Worker (DSW) on a casual basis. 2. At [229] of the Decision, the Tribunal found that it was appropriate to infer that had the applicant been employed as a DSW, the respondent would have offered her at least one shift per week for a period of 3 months. 3. During the hearing, no evidence was led as to what rate of pay the applicant would have received from the respondent from approximately 1 April 2021 onwards. 4. The Tribunal rejected the applicant's submission that her damages consisted of not what she would have been paid by the respondent during the relevant period but what she earned from other employment during the relevant period as there no causation for the loss, [226] the Decision. 5. The Tribunal made orders that the parties are to file and serve any evidence and submissions as to the appropriate rate of pay and level of superannuation the applicant would have been paid had she been employed by the respondent. The parties were also asked to indicate whether they sought to be heard or whether they considered that the Tribunal may determine the matter without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 6. The applicant in her submissions dated 6 April 2023, indicated that she was content for the Tribunal to determine the matter in accordance with s 50(2) of the CAT Act. The respondent did not address the issue in its submissions dated 14 April 2023 but made no indication that it sought to be heard. The Tribunal is satisfied that it may make an order dispensing with a hearing as the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and the other documents or material lodged with or provided to the Tribunal.