Banjanin v Department of Education and Communities [2012] NSWADT 37

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Banjanin v Department of Education and Communities [2012] NSWADT 37 Hearing dates: 28 February 2012 Decision date: 08 March 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of age discrimination to proceed is refused. Catchwords: LEAVE - complaint of age discrimination in education declined as lacking in substance by President Anti-Discrimination Board - leave required for complaint to proceed - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Jones & Anor v Ekermawi [2009] NSWCA 388 Category: Interlocutory applications Parties: Radmila Banjanin Department of Education and Communities Representation: Applicant in person Markinson & d'Apice Lawyers File Number(s): 111149 Publication restriction: nil

REasons for decision

Introduction 1The applicant, Ms Banjanin, was enrolled in a Diploma of Information Technology at the Campbelltown College of TAFE. She complained to the Anti-Discrimination Board (ADB) that she had been discriminated against on the ground of her age. She was 58 years old at the time. She alleged that: (1)A teacher, Mr Aburto, typed the following words on her computer during a Friday class: "You Radmila, just taking my time and attention from classroom and students." (2)Mr Aburto asked her to meet with him on 9 March 2011 and told her that he would not be able to give her any "positive mark" for any subject in the course and that it would be better for her just to leave the course. In addition, at that meeting, Mr Aburto is alleged to have said: "All the young students are in the class and you are just trying using (sic) them and completing the course." (3)Neither Mr Aburto nor Mr Worthington, the head teacher, contacted her after the meeting until she wrote a formal letter of complaint about three weeks later. 2The applicant did not attend class after this meeting and formally withdrew from the course at the end of March 2011. 3The President of the ADB declined the complaint as lacking in substance. The applicant requested that her complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 ( AD Act ), s 96(1). The test to be applied is whether it is fair and just in all the circumstances for the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The onus is on the applicant to satisfy the Tribunal that leave should be granted.