ELV v Leaders in Real Estate Pty Ltd [2020] NSWCATAD 251

ELV v Leaders in Real Estate Pty Ltd [2020] NSWCATAD 251

Taking the applicant's case at its highest, it was possible on the available evidence that she could establish that one or more asserted characteristics associated with her condition was a ground for her dismissal. Although she may face difficulty proving that the characteristics appertain generally to persons with PTSD or are generally imputed to them, that factual issue was not suitable for determination at the leave stage given the lack of expert or other evidence. The complaint did not have strong prospects but was not lacking in substance, untenable or hopeless, and the interests of justice required that it proceed to be determined on its merits.

Jurisdiction
Australia
Judgment Date
21 October 2020
Procedural Posture
Application for Leave for Complaint of Disability Discrimination in Employment to Proceed / Leave Application After the President of the Anti Discrimination Board of NSW Declined the Complaint and Referred It to the Tribunal Under S 93 a of the Anti Discrimination Act 1977
Outcome
Leave granted.
Legal Topics
['disability Discrimination' 'direct Discrimination' 'dismissal From Employment' 'leave for Complaint to Proceed' 'characteristics Appertaining or Generally Imputed to Persons With Disability']
['equal Opportunity' 'anti Discrimination Law' 'employment Law'] ['disability Discrimination' 'direct Discrimination' 'dismissal From Employment' 'leave for Complaint to Proceed' 'characteristics Appertaining or Generally Imputed to Persons With Disability']

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Procedural Posture

Application for Leave for Complaint of Disability Discrimination in Employment to Proceed / Leave Application After the President of the Anti Discrimination Board of NSW Declined the Complaint and Referred It to the Tribunal Under S 93 a of the Anti Discrimination Act 1977

Legal Issues

  1. 1 ['Whether leave should be granted under s 96 of the Anti-Discrimination Act 1977 for the complaint to proceed after the President declined it as lacking in substance.' "Whether the applicant's dismissal could possibly be established as direct discrimination on the ground of disability under ss 49B and 49D of the Anti-Discrimination Act 1977." 'Whether characteristics such as distress, being in a state of grief, difficulty concentrating or lack of attention to detail appertain generally to persons with PTSD or are generally imputed to persons with PTSD.' "Whether the applicant's disability or relevant characteristics were at least one of the real, genuine or true reasons for the dismissal."]

Ratio Decidendi

Taking the applicant's case at its highest, it was possible on the available evidence that she could establish that one or more asserted characteristics associated with her condition was a ground for her dismissal. Although she may face difficulty proving that the characteristics appertain generally to persons with PTSD or are generally imputed to them, that factual issue was not suitable for determination at the leave stage given the lack of expert or other evidence. The complaint did not have strong prospects but was not lacking in substance, untenable or hopeless, and the interests of justice required that it proceed to be determined on its merits.

Court Disposition

Leave granted.

Orders

  • ['Leave is granted for the complaint of disability discrimination in employment to proceed.']