Najmitdinov v Woolworths Group Limited [2020] NSWCATAD 88

Najmitdinov v Woolworths Group Limited [2020] NSWCATAD 88

The Tribunal refused leave because the complaint was not reasonably arguable and therefore lacked substance. Woolworths' request to contact the applicant's GP and direction to attend an independent medical examination, in circumstances where it granted roster accommodation and took no adverse action for non-compliance, were not reasonably arguable detriments. The applicant had no reasonably arguable entitlement under the Agreement or custom and practice to a fourth break on nine hour shifts. The material did not support that the Second Fixed Roster denied a benefit or caused detriment through reduced weekend work or penalty rates. The victimisation allegation also lacked substance because...

Jurisdiction
Australia
Judgment Date
23 March 2020
Procedural Posture
Complaint Under the Anti Discrimination Act 1977 (nsw) Alleging Disability Discrimination and Victimisation / Application for Leave Under S 96(1) of the Anti Discrimination Act 1977 (nsw) After the President Declined the Complaint as Lacking in Substance and Referred It to NCAT
Outcome
Leave for the complaint to proceed was refused.
Legal Topics
['disability Discrimination' 'victimisation' 'leave for Complaint to Proceed' 'detriment' 'employment Rosters']
['human Rights' 'anti Discrimination' 'employment'] ['disability Discrimination' 'victimisation' 'leave for Complaint to Proceed' 'detriment' 'employment Rosters']

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Procedural Posture

Complaint Under the Anti Discrimination Act 1977 (nsw) Alleging Disability Discrimination and Victimisation / Application for Leave Under S 96(1) of the Anti Discrimination Act 1977 (nsw) After the President Declined the Complaint as Lacking in Substance and Referred It to NCAT

Legal Issues

  1. 1 ['Whether leave should be granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaint to proceed after the President declined it as lacking in substance.' "Whether Woolworths' request to contact the applicant's treating doctor and direction to attend an independent medical examination constituted a detriment." 'Whether denial of a fourth break on nine hour shifts constituted denial of a benefit associated with employment or a detriment.' 'Whether the pattern of rostering under the Second Fixed Roster limited access to penalty rates or otherwise subjected the applicant to a detriment.' 'Whether disciplinary action including a final written warning and show cause letter constituted victimisation under s 50 of the Anti-Discrimination Act 1977 (NSW).']

Ratio Decidendi

The Tribunal refused leave because the complaint was not reasonably arguable and therefore lacked substance. Woolworths' request to contact the applicant's GP and direction to attend an independent medical examination, in circumstances where it granted roster accommodation and took no adverse action for non-compliance, were not reasonably arguable detriments. The applicant had no reasonably arguable entitlement under the Agreement or custom and practice to a fourth break on nine hour shifts. The material did not support that the Second Fixed Roster denied a benefit or caused detriment through reduced weekend work or penalty rates. The victimisation allegation also lacked substance because...

Court Disposition

Leave for the complaint to proceed was refused.

Orders

  • ['Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).']