Edmundson v Endeavour Foundation [2011] NSWADT 96

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Edmundson v Endeavour Foundation [2011] NSWADT 96 Hearing dates: 1 March 2011 Decision date: 01 March 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for Mr Edmundson's complaint of disability discrimination to proceed is refused. Catchwords: LEAVE - complaint of disability discrimination against employer declined as lacking in substance - whether fair and just for complaint to proceed - merits of the complaint - whether likely that inherent requirements defence would be made out Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Category: Separate question Parties: Robert Edmundson (Applicant) Endeavour Foundation (Respondent) Representation: Robert Edmundson (Applicant - in person) Berry Buddle Wilkins Lawyers Pty Ltd (Respondent) File Number(s): 111010

REasons for decision

Introduction 1The applicant, Mr Edmundson, alleges that his former employer, Endeavour Foundation, discriminated against him on the ground of his disability by terminating his employment as a packer. Mr Edmundson suffered a recurrence of a back injury at work in September 2007. At a meeting on 24 September 2009, he was asked whether he could return to work for one hour, 2 days a week. He refused that offer because he was still totally unfit for work and had a medical certificate to that effect. As he had been absent for more than 6 months and was totally unfit for work, the Endeavour Foundation formed the view that they had complied with their obligations under the Workplace Injury Management and Workers Compensation Act 1998 are were entitled to terminate his employment. 2Mr Edmundson re-applied for part-time work as a packer with the Endeavour Foundation on 4 June 2010 but that application was refused. Endeavour Foundation says that it was refused because Mr Edmundson remained totally unfit for work. Mr Edmundson complained to the Anti-Discrimination Board on 11 August 2010. 3The President of the Board declined the complaint as lacking in substance: AD Act , s 92. Mr Edmundson requested that the complaint be referred to the Tribunal. The complaints cannot proceed unless the Tribunal gives its permission or 'leave': AD Act , s 96. In deciding whether to grant leave the Tribunal should be guided by what is fair and just in the circumstances. Relevant factors in this case include whether the complaint lacks substance: Jones and Anor v Ekermawi [2009] NSWCA 388 and AD Act, s 92(1)(a). The onus is on Mr Edmundson to satisfy the Tribunal that leave should be granted.