Kess -V- Department Of Land & Water Conservation [1997] NSWEOT

Equal Opportunity Tribunal of New South Wales

CITATION: Kess -V- Department Of Land & Water Conservation [1997] NSWEOT

COMPLAINANT: Jack Kess

RESPONDENT: Department of Land & Water Conservation

NUMBER: 252 of 1996

Mr Peter King ( Judicial Member ) TRIBUNAL: Mr Neville Rogan Ms Stevie Clayton

GROUNDS OF COMPLAINT: Disability discrimination in employment and victimisation

DATES OF HEARING: 10/13/1997; 10/14/1997; 10/15/1997 DATE OF JUDGMENT: 10/15/1997

Complainant: Ms J Keys (Counsel)

LEGAL REPRESENTATIVES: Respondent: Mr S Young (Solicitor) Department of Land & Water Conservation Mr T Molomby (Counsel)

JUDGMENT IN FAVOUR OF:

CHAIRPERSON: In this matter, two complaints were referred to the Tribunal by the President of the Anti-Discrimination Board on 2 December 1996, those being a complaint received 18 September 1996 of unlawful victimisation, and a complaint received at the Board on 25 September 1996 being a complaint of discrimination on the ground of disability.

The Board did not refer to the Tribunal a further complaint of racial discrimination purporting to act under s 91 subs (1)(a) of the Anti-Discrimination Act 1977 ("the Act") and for those reasons that portion of the points of claim raising that issue was, with the agreement of both counsel, struck from the record.

The points of claim which set out the basis on which these complaints have been referred to us for inquiry pursuant to s 96 of the Act raise two issues conformably with the reference to the Tribunal. The first is a complaint of discrimination on the grounds, and we quote, "Of the Respondent's belief that the Complainant had a mental disability". Particulars are then given. The second complaint is a complaint of victimisation and the earlier particulars relating to the ground of mental disability are repeated and two additional matters in a summary way are raised. In particular, the conduct of the Respondent in appointing what were described as independent arbitrators, but which in the course of this hearing became more properly characterised as mediators, and placing the Complainant on light duties as a form of conduct victimising him and secondly, a statement by Ms Cleary to the Complainant on the 27th or 28th August 1996 that, "Once you apply to the ADB, you can no longer work here".