EKZ v Active Kids Group Pty Ltd [2020] NSWCATAD 20

EKZ v Active Kids Group Pty Ltd [2020] NSWCATAD 20

Although the Son's disability was one of the real reasons Active Kids refused to provide childcare services, the Applicants did not establish less favourable treatment for direct discrimination. The Brother was not an appropriate comparator because his circumstances were materially different: the Son required significant additional assistance and support to participate in childcare activities. A hypothetical child without the Son's disability but requiring significant additional care and assistance would probably also have been refused childcare services by Active Kids. The complaint as framed as direct discrimination was therefore not substantiated.

Jurisdiction
Australia
Judgment Date
26 August 2020
Procedural Posture
Complaint of Disability Discrimination Under the Anti Discrimination Act 1977 (nsw) / Final Decision
Outcome
Complaint dismissed.
Legal Topics
['direct Discrimination on the Ground of Disability' 'less Favourable Treatment' 'comparator Analysis' 'provision of Childcare Services' 'indirect Discrimination']
['equal Opportunity' 'anti Discrimination Law'] ['direct Discrimination on the Ground of Disability' 'less Favourable Treatment' 'comparator Analysis' 'provision of Childcare Services' 'indirect Discrimination']

Case Brief

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Procedural Posture

Complaint of Disability Discrimination Under the Anti Discrimination Act 1977 (nsw) / Final Decision

Legal Issues

  1. 1 ['Whether Active Kids refused to provide childcare services to the Son on the ground of disability contrary to s 49M(1)(a) of the Anti-Discrimination Act 1977 (NSW).' 'Whether the refusal amounted to direct discrimination under s 49B(1)(a) by treating the Son less favourably than a child without his disability in the same or not materially different circumstances.' "Whether the Son's disability was one of the reasons for Active Kids' refusal to provide childcare services."]

Ratio Decidendi

Although the Son's disability was one of the real reasons Active Kids refused to provide childcare services, the Applicants did not establish less favourable treatment for direct discrimination. The Brother was not an appropriate comparator because his circumstances were materially different: the Son required significant additional assistance and support to participate in childcare activities. A hypothetical child without the Son's disability but requiring significant additional care and assistance would probably also have been refused childcare services by Active Kids. The complaint as framed as direct discrimination was therefore not substantiated.

Court Disposition

Complaint dismissed.

Orders

  • ['The complaint of discrimination on the grounds of disability is dismissed.']