Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176 Hearing dates: 23 June 2011 Decision date: 20 July 2011 Jurisdiction: Equal Opportunity Division Before: R J Wright SC - Judicial Member, N Hiffernan - Non-Judicial Member P Smith - Non-Judicial Member Decision: The Tribunal orders that: 1.the complaint be dismissed in whole. Catchwords: Disability Discrimination - Employment - Direct Discrimination Legislation Cited: Anti Discrimination Act 1977 (NSW) Cases Cited: IW v City of Perth (1997) 191 CLR 1 Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Purvis v State of New South Wales (2003) 217 CLR 92 Peck v Commissioner of Corrective Services [2002] NSWADT 122 X v Commonwealth of Australia (1999) 200 CLR 177 Category: Principal judgment Parties: Jacqueline Carmel Duncan (Applicant) Representation: Counsel Mr Moore (Respondent) J Duncan (Applicant in person) AFEI Legal Pty Ltd (Respondent) File Number(s): 101105

REASONS FOR DECISION 1EQUAL OPPORTUNITY DIVISION (R J Wright SC - Judicial Member, Noel Hiffernan - Non-Judicial Member and Philippa Smith - Non-Judicial Member): In this matter, the Applicant, Ms Duncan, alleges that she was unlawfully discriminated against on the ground of disability in relation to employment with the Respondent, Kembla Watertech Pty Ltd ( Kembla ), under s 49D of the Anti-Discrimination Act 1977 (NSW) (the ADA ). 2Ms Duncan's case can be summarised as follows: a) She was offered a job at Kembla by Mr Pleasance, the Central Division Manager of Kembla; b)She accepted the job offer and she was given a starting date over the telephone and then by email; c)Mr Pleasance terminated the job (or withdrew the offer) prior to her starting because of "perceived disability". The reference to "perceived disability" is a reference to a disability that a person is thought to have, within s 49A(b) of the ADA. 3Kembla's defence of the complaint was in substance that the offer of employment that Ms Duncan received was conditional upon her satisfactorily completing a pre-employment medical examination, even though a draft contract and a starting date were earlier provided to Ms Duncan. Ms Duncan's medical examination was not satisfactory. Thus, the condition to which the offer of employment was subject had not been fulfilled and the offer did not proceed. Kembla also challenged the notion that there was only a "perceived disability", arguing that, on the evidence, Ms Duncan did have a real disability. Further, s 49D(4)(a) of the ADA was relied upon to argue that any discrimination was not unlawful as Ms Duncan was unable to carry out the inherent requirements of the particular employment.