Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176

Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176

Although Kembla Watertech Pty Ltd discriminated against Ms Duncan on the ground of disability by withdrawing its offer of employment, the discrimination was not unlawful under the ADA because the Tribunal found that Ms Duncan was, due to her disabilities, unable to perform the inherent requirements of the role of Community Relations Officer, particularly the site visit duties, with reasonable safety to herself. Therefore, the inherent requirements exception in s 49D(4)(a) applied and the complaint was dismissed.

Parties
Applicant: Jacqueline Carmel Duncan; Respondent: Kembla Watertech Pty Ltd
Jurisdiction
Australia
Judgment Date
20 July 2011
Procedural Posture
Principal Judgment / Equal Opportunity Division Hearing and Final Determination
Outcome
Complaint dismissed
Legal Topics
Disability Discrimination, Direct Discrimination, Employment Termination, Inherent Requirements Exception
Discrimination Law Employment Law Disability Discrimination Direct Discrimination Employment Termination Inherent Requirements Exception

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Parties

Jacqueline Carmel Duncan

Applicant

Kembla Watertech Pty Ltd

Respondent

Procedural Posture

Principal Judgment / Equal Opportunity Division Hearing and Final Determination

Legal Issues

  1. 1 Whether the respondent unlawfully discriminated against the applicant on the ground of disability under s 49D of the Anti-Discrimination Act 1977 (NSW)
  2. 2 Whether the applicant was unable to carry out the inherent requirements of the position within the meaning of s 49D(4)(a) of the Anti-Discrimination Act 1977 (NSW)

Ratio Decidendi

Although Kembla Watertech Pty Ltd discriminated against Ms Duncan on the ground of disability by withdrawing its offer of employment, the discrimination was not unlawful under the ADA because the Tribunal found that Ms Duncan was, due to her disabilities, unable to perform the inherent requirements of the role of Community Relations Officer, particularly the site visit duties, with reasonable safety to herself. Therefore, the inherent requirements exception in s 49D(4)(a) applied and the complaint was dismissed.

Court Disposition

Complaint dismissed

Orders

  • The complaint be dismissed in whole.