Roxburgh v Secretary, Department of Education NSW [2023] NSWCATAD 266

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Roxburgh v Secretary, Department of Education NSW [2023] NSWCATAD 266 Hearing dates: 18 October 2023 Date of orders: 23 October 2023 Decision date: 23 October 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: 1. Ms Roxburgh's application for an interim order prohibiting the Secretary, Department of Education NSW terminating her employment under the abandonment of employment policy prior to Anti- Discrimination NSW completing her complaint, is refused. 2. The application is dismissed. Catchwords: HUMAN RIGHTS – interim order – s105 Anti-Discrimination Act 1977 – status quo – balance of convenience – abandonment of employment policy – no irreputable damage – preservation of rights Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310 Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Texts Cited: Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, Federation Press) Category: Principal judgment Parties: Agnetha Roxburgh (Applicant) Secretary, Department of Education NSW (Respondent) Representation: Solicitors: Applicant (Self-represented) Sparke Helmore Lawyers (Respondent) File Number(s): 2023/00312966 Publication restriction: None

REASONS FOR DECISION

Overview 1. Ms Roxburgh's has filed an application for an interim order under the Anti-Discrimination Act 1977 (NSW) (AD Act) that her employer, the Secretary, NSW Department of Education ("the Respondent"), be prohibited from terminating her employment prior to Anti-Discrimination NSW ("ADNSW") completing an investigation into a complaint she made to that body. She has complained to the President of ADNSW that her employer unlawfully discriminated against her on the grounds of sex (pregnancy) and her responsibilities as a carer. The President has accepted these complaints for investigation but they have not been resolved. 2. The Tribunal has power to make interim orders under s 105 of the AD Act: (1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order: (a) to preserve the status quo between the parties to the complaint, or (b) to preserve the rights of the parties to the complaint, or (c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred, pending determination of the matter the subject of the complaint. 1. The Tribunal made orders and directed the parties to provide any evidence and submissions regarding the interim application. After considering those submissions I refuse Ms Roxburgh's application for an interim order. The complaints is inherently complex. It is refuted by the Respondent. Depending on how Ms Roxburgh characterises her complaints, there may be a sound legal basis for them: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. Should Ms Roxburgh be successful in her complaints, the Tribunal could compensate her for any lost wages. On the other hand, the Respondent will incur additional costs and require resources to keep 'backfilling' Ms Roxburgh's role and not be able to find a suitable permanent replacement if her complaint is not substantiated. For those reasons, which are explained further below, the balance of convenience is in favour of the Respondent.