Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15

Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15

The Tribunal correctly applied the direct discrimination test by selecting Anthony Hunter as an appropriate comparator and found procedural fairness was not breached, as the Land Council was on constructive notice. Disability was one of the reasons for the less favourable treatment and the complainant proved causation on the balance of probabilities. The Tribunal erred in calculating economic loss, and the Appeal Panel substituted the correct amount based on the deduction from comparator earnings.

Parties
Appellant: Deerubbin Local Aboriginal Land Council; Respondent: Mr D Hunter
Jurisdiction
Australia
Judgment Date
07 May 2012
Procedural Posture
Disability Discrimination Complaint Appeal / Appeal Panel Decision
Outcome
Appeal partly allowed; calculation of economic loss corrected; substantive finding of discrimination affirmed.
Legal Topics
Direct Discrimination, Disability Discrimination, Procedural Fairness, Comparators in Discrimination, Economic Loss Calculation, Burden of Proof
Discrimination Law Employment Law Administrative Law Direct Discrimination Disability Discrimination Procedural Fairness Comparators in Discrimination Economic Loss Calculation +1 more

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Parties

Deerubbin Local Aboriginal Land Council

Appellant

Mr D Hunter

Respondent

Procedural Posture

Disability Discrimination Complaint Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal breached procedural fairness in selecting a single comparator
  2. 2 How circumstances are identified when making a comparison for direct discrimination
  3. 3 Whether the causation test was properly applied regarding disability as a reason for treatment

Ratio Decidendi

The Tribunal correctly applied the direct discrimination test by selecting Anthony Hunter as an appropriate comparator and found procedural fairness was not breached, as the Land Council was on constructive notice. Disability was one of the reasons for the less favourable treatment and the complainant proved causation on the balance of probabilities. The Tribunal erred in calculating economic loss, and the Appeal Panel substituted the correct amount based on the deduction from comparator earnings.

Court Disposition

Appeal partly allowed; calculation of economic loss corrected; substantive finding of discrimination affirmed.

Orders

  • The Tribunal's first order substantiating unlawful discrimination is affirmed.
  • The Tribunal's second order to pay $21,810 is set aside.