Smith v Director General, Department of Education and Training [2010] NSWADT 282

CITATION: Smith v Director General, Department of Education and Training [2010] NSWADT 282

DIVISION: Equal Opportunity Division

APPLICANT Graham Smith PARTIES: RESPONDENT Director General, Department of Education and Training

FILE NUMBER: 101081

HEARING DATES: 3 August 2010

SUBMISSIONS CLOSED: 3 August 2010

DATE OF DECISION: 29 November 2010

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: LEAVE – disability discrimination complaint – lacking in substance, subject matter of complaint governed by Workplace Injury Management and Workers Compensation Act 1998 – victimisation complaint – lacking in substance.

Anti-Discrimination Act 1977 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Workplace Injury Management and Workers Compensation Act 1998

Jones and Anor v Ekermawi [2009] NSWCA 388 CASES CITED: Divertie v Startrack Express Pty Limited [2008] NSWWCCPD Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261

APPLICANT In person REPRESENTATION: RESPONDENT P Griffin, counsel

ORDERS: Leave is refused for the applicant's complaints of disability discrimination and victimisation to proceed.

REASONS FOR DECISION

Introduction

1 Mr Smith began working with the Department of Education and Training as a Training Advisor at the end of 2007. His position was located in Parramatta. Mr Smith made a workers compensation claim on 26 September 2008 for an adjustment disorder with anxiety. The insurer accepted the claim on 5 February 2009. In September 2009 Mr Smith complained to the Anti-Discrimination Board that the Department had discriminated against him on the ground of his disability by "mishandling his Workers' Compensation Claim and the resulting Injury Management Plan because of unexplained interference in the normal process by senior management in the Department." He said that his Injury Management Plan was mismanaged because Mr Moore and other senior managers in the Department did not honour an agreement that he should return to work at Parramatta. Instead, those managers insisted that he return to work at premises in Darlinghurst in the Sydney CBD. In Mr Smith's view, that was not a suitable location or a suitable position for him because, among other things, of a pre-existing back injury. Mr Smith also complained that the Department victimised him for making that complaint.