Complaint of unlawful disability discrimination dismissed. Applicant to pay the respondent's costs of and incidental to the application as agreed or assessed.
The background
Mr Kenworthy (the applicant) alleged that the respondent, Heartbeat Centre Coffs Harbour Limited (Heartbeat) engaged in unlawful discrimination against him in the area of employment on the basis of a disability (namely, a shoulder injury) in contravention of the Anti-Discrimination Act 1977 (NSW) (AD Act).
Heartbeat is a Christian based Not-For-Profit organisation with three primary arms, the Church, the Market and the Mission. The applicant was briefly employed by Heartbeat's Market arm in a casual role as Driver/ Storeperson from 12 July 2022 to 4 October 2022. The applicant worked two days per week, each day comprised a four-hour shift.
The applicant's role was to drive Heartbeat's truck to collect and deliver items to either be donated or sold through the Market.
The applicant alleged that Heartbeat engaged in unlawful discrimination against him (both direct and indirect discrimination) by treating him less favourably than someone who did not have his disability and dismissing him from his employment because of the shoulder injury. Heartbeat maintained that the applicant never disclosed to Heartbeat his shoulder injury (or its alleged exacerbation) and that the applicant resigned from his employment owing to constant tiredness.
Following referral from the Anti-Discrimination Board of NSW, the complaint proceeded to the NSW Civil and Administrative Tribunal (the Tribunal) for determination.
The decision
The Tribunal made the following findings:
The applicant's shoulder injury was a pre-existing injury which the applicant failed to disclose when he was first employed by Heartbeat. The applicant also failed to report an alleged exacerbation of the shoulder injury that was allegedly sustained on his first shift working for Heartbeat. The applicant did not request any adjustments nor identify any hazards in the conduct of his role.
On 4 October 2022, the applicant resigned from his role and the resignation was accepted by Heartbeat.
At the time of the applicant's resignation, the applicant did not report any injuries arising from his employment and it was only after he had resigned that he notified Heartbeat of the disability and needing to 'go for compo' because he had injured his shoulder.
In the workers' compensation documentation that he completed, the applicant stated that he had no plan to return to work and he did not contend that he had been dismissed.
It was only after his workers' compensation claim was rejected that the applicant sought to recast his resignation as a dismissal.
In the circumstances, Heartbeat did not contravene the AD Act because it was unaware that the applicant had a disability and it did not subject the applicant to any detriment because of any known fact or circumstance relating to the applicant's shoulder injury or alleged exacerbation of that injury. Heartbeat treated the applicant in the same way that it treats a person without the applicant's disability, and no less favourable treatment was received by the applicant.
Heartbeat also did not require the applicant to comply with an unreasonable discriminatory condition that would have disproportionately disadvantaged him (or someone with his disability), and Heartbeat did not subject the applicant to an unreasonable requirement that he (or someone with a condition substantially the same as his) was not able to comply with.
Where there was a contradiction in the evidence, the Tribunal favoured the evidence of Heartbeat over the applicant as Heartbeat's evidence was based on contemporaneous material.
The applicant did not establish his claim of unlawful discrimination on the balance of probabilities, and the complaint was dismissed.
Despite this generally being a no costs jurisdiction, the Tribunal found that there were special circumstances justifying an order that the applicant pay Heartbeat's costs - those special circumstances included:
- the applicant's claim having no basis in fact or at law,
- the applicant being responsible for unreasonably prolonging the proceedings due to repeated failure to comply with orders,
- the proceedings being frivolous, vexatious and misconceived,
- the applicant's conduct caused Heartbeat disadvantage associated with costs of preparing material owing to the applicant's refusal to engage in any form of resolution discussions, and
- the applicant's conduct was a failure to act in a manner consistent with the guiding principle provided by section 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) being the just, quick and cheap resolution of the real issues in the proceedings.
Implications for you
A key takeaway of this case for employers is to ensure that not only are there adequate systems in place to report workplace incidents (such as injuries occurring while at work), but that employees are made aware and receive training in the use of those reporting systems. This further ensures that issues can be contemporaneously documented (and later relied upon as an accurate record) and promptly addressed to obviate a situation where allegations and disputes arise based on a reconstruction of events.
Kenworthy v Heartbeat Centre Coffs Harbour Limited [2025] NSWCATAD 133
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
