Bir v Western Sydney Local Health District [2022] NSWCATAD 286

Bir v Western Sydney Local Health District [2022] NSWCATAD 286

The Tribunal refused to amend the complaint to include the 2016/2017 failure to investigate allegation because it had been included in the complaint to the ADB but the President, by referring only complaints within the complaint period, had determined not to accept complaints outside the 12 month period and that decision was not reviewable under s89B(4). The Tribunal also refused to amend the complaint to include the September 2019 incident because, although s103 otherwise allowed amendment, the incident could have been included before the President, occurred nearly two years before the ADB complaint, no reason was given for its omission, and it was unlikely to materially affect the...

Jurisdiction
Australia
Judgment Date
24 August 2022
Procedural Posture
Complaint of Race Discrimination in Employment and Victimisation Referred Under the Anti Discrimination Act 1977 (nsw) / Application to Amend Complaint Under S103 of the Anti Discrimination Act 1977 (nsw)
Outcome
Application to amend allowed in part; complaint amended to include post-complaint disciplinary, suspension and medical examination direction allegations, and the balance of the amendment application dismissed.
Legal Topics
['race Discrimination' 'victimisation' 'amendment of Complaint' 'temporal Scope of Complaint' "president's Power to Decline Complaint" 'tribunal Power Under S103']
['human Rights' 'anti Discrimination Law' 'administrative Law' 'employment Discrimination'] ['race Discrimination' 'victimisation' 'amendment of Complaint' 'temporal Scope of Complaint' "president's Power to Decline Complaint" 'tribunal Power Under S103']

Case Brief

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Procedural Posture

Complaint of Race Discrimination in Employment and Victimisation Referred Under the Anti Discrimination Act 1977 (nsw) / Application to Amend Complaint Under S103 of the Anti Discrimination Act 1977 (nsw)

Legal Issues

  1. 1 ['Whether the complaint should be amended to include a 2016/2017 failure to investigate allegation.' 'Whether the complaint should be amended to include a September 2019 alleged racial comment.' 'Whether the complaint should be amended to include disciplinary proceedings and suspension and medical examination directions occurring after the complaint was lodged with the ADB.' "Whether s89B(4) of the Anti-Discrimination Act 1977 (NSW) prevents the Tribunal reviewing the President's decision to limit or decline parts of a complaint."]

Ratio Decidendi

The Tribunal refused to amend the complaint to include the 2016/2017 failure to investigate allegation because it had been included in the complaint to the ADB but the President, by referring only complaints within the complaint period, had determined not to accept complaints outside the 12 month period and that decision was not reviewable under s89B(4). The Tribunal also refused to amend the complaint to include the September 2019 incident because, although s103 otherwise allowed amendment, the incident could have been included before the President, occurred nearly two years before the ADB complaint, no reason was given for its omission, and it was unlikely to materially affect the...

Court Disposition

Application to amend allowed in part; complaint amended to include post-complaint disciplinary, suspension and medical examination direction allegations, and the balance of the amendment application dismissed.

Orders

  • ['The complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 31 January 2021 is amended to incorporate the following allegations against the Respondent within the period 14 July 2020 to 27 April 2022: a. Second Continued Investigation and Disciplinary Conduct as set out in the...