Fluor Australia Pty Ltd v Tanevski (EOD) [2009] NSWADTAP 39

Fluor Australia Pty Ltd v Tanevski (EOD) [2009] NSWADTAP 39

The Tribunal erred in law by redefining the base group and pools used to assess indirect discrimination without providing the parties with notice and an opportunity to provide submissions or tender further evidence. The appropriate comparative pools for indirect discrimination under s7(1)(c) Anti-Discrimination Act 1977 must be persons of the complainant's race versus persons not of that race. Due to this procedural unfairness, the finding of indirect discrimination could not stand and the matter was remitted for reconsideration.

Jurisdiction
Australia
Judgment Date
24 June 2009
Procedural Posture
Appeal / Appeal Panel Decision on Appeal From Tribunal
Outcome
Appeal allowed; finding of indirect race discrimination set aside; matter remitted for reconsideration.
Legal Topics
['indirect Discrimination' 'race Discrimination' 'statutory Authority Defence' 'procedural Fairness' 'base Group Definition' 'comparative Compliance Rates']
['discrimination Law' 'employment Law' 'administrative Law'] ['indirect Discrimination' 'race Discrimination' 'statutory Authority Defence' 'procedural Fairness' 'base Group Definition' 'comparative Compliance Rates']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Decision on Appeal From Tribunal

Legal Issues

  1. 1 ['Proper identification and notification of base group and comparative pools in indirect discrimination claims under Anti-Discrimination Act 1977' "Correct application of 'substantially higher proportion' test under s7(1)(c) AD Act" "Appropriate use of 'common knowledge' in determining compliance rates" 'Proper consideration of reasonableness of employment requirements' 'Application of statutory authority defence under s54 AD Act']

Ratio Decidendi

The Tribunal erred in law by redefining the base group and pools used to assess indirect discrimination without providing the parties with notice and an opportunity to provide submissions or tender further evidence. The appropriate comparative pools for indirect discrimination under s7(1)(c) Anti-Discrimination Act 1977 must be persons of the complainant's race versus persons not of that race. Due to this procedural unfairness, the finding of indirect discrimination could not stand and the matter was remitted for reconsideration.

Court Disposition

Appeal allowed; finding of indirect race discrimination set aside; matter remitted for reconsideration.

Orders

  • ['The appeal is allowed.' "Order 3 in the Tribunal's decision of 7 August 2008 is set aside." 'The parts of the case identified at paragraph [118] of these reasons are to be heard and decided again by the Tribunal as originally constituted, with leave being granted to the parties to adduce further evidence if they...