Peng v Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division [2018] NSWCATAD 210

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Peng v Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division [2018] NSWCATAD 210 Hearing dates: 5 and 6 April 2018 Date of orders: 10 September 2018 Decision date: 10 September 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Dr J Goodman-Delahunty, General Member Decision: (1) The respondent's name is changed to Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division. (2) Leave is granted for the applicant to be represented by an agent, Brendan Edghill. (3) The applicant's application is dismissed. Catchwords: ANTI-DISCRIMINATION – Direct discrimination on the ground of disability – Whether questions of differential treatment and causation should be determined separately – Where employer perceived employee to be subject to a lifting restriction – Whether perceived lifting restriction should be imputed to comparator – Whether employee could perform inherent requirements of particular employment – Scope of particular employment – Whether employee could perform inherent requirements with additional services or facilities, without imposing unjustifiable hardship on employer Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Disability Discrimination Act 1992 (Cth) Cases Cited: Baker v D & D Traffic Management Pty Ltd [2013] NSWADT 175 Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112 Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268 Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Green v Department of Family and Community Services [2013] NSWADT 193 Hunter v Deerubin Local Aboriginal Land Council [2011] NSWADT 202 Peng v NSW Health Pathology [2017] NSWCATAD 288 Purvis v New South Wales (2003) 217 CLR 92 Vuong v Casabake Pty Ltd [2009] NSWADT 279 Woodforth v State of Queensland [2018] 1 Qd R 289 X v Commonwealth (1999) 200 CLR 177 Zraika v Commissioner of Police, New South Wales Police [2004] NSWADT 67 Category: Principal judgment Parties: Wei Xian Peng (Applicant) Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division (Respondent) Representation: Counsel: Ms V Bulut (Respondent)