Ms Abrego contends for the matters which are set out above. She submits that she has been terminated from her employment because of a presumed disability, namely, possible future sickness from an infectious disease, COVID-19. Her application seeks that the respondent desist in their action and provide a written apology concerning her termination and treatment.
In oral submissions, Ms Abrego contends that the requirement that she provide evidence of being vaccinated is discriminatory on the basis of disability in employment.
Ms Baxter submits that the Respondent is compelled to comply with the PHO and in doing so, it cannot allow education workers who do not comply with the requirements of the PHO, including Ms Abrego, to work in the organisation which could lead to a breach of the PHO. In these circumstances, Ms Abrego's employment was terminated.
[2]
My consideration
The term "Disability" is defined in s 4 of the Act to mean:
"disability" means--
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
Abrego v Secretary, Department of Education [2022] NSWCATAD 145 | Case summary | Zoe
Disability includes past, future and presumed disability as set out in s 49A of the Act:
A reference in this Part to a person's disability is a reference to a disability -
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
Discrimination on the basis of disability under s49B of the Act provides:
(1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator--
(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.
(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability--
(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or
(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,
is taken to be a characteristic that appertains generally to persons who have that disability.
(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
Relevantly, discrimination on the ground of disability in relation to employment is prescribed by s49D as:
(1) It is unlawful for an employer to discriminate against a person on the ground of disability--
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability--
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
In my view the claim and the available evidence is lacking in substance.
I find Ms Abrego has not identified what her disability is, in accordance with the Act. In oral submissions, Ms Abrego describes her disability as being a presumed disability, namely the prospect that she may contract COVID-19 if she is not immunised against it. I do not accept that this amounts to a 'disability' within the meaning of s 4 of the Act, as both vaccinated and non-vaccinated people can contract COVID-19. In that sense, I am not satisfied Ms Abrego could reasonably establish that she has a disability within the terms of s 4 of the Act.
If, however, Ms Abrego was able to establish that she has a disability within the definition in s 4 of the Act, I am also not satisfied that she has demonstrated that she has an arguable case in which leave to proceed should be granted for the following reasons.
First, there is no prima facie evidence of either direct or indirect discrimination. Ms Abrego contends that she has been discriminated against on the basis that the Respondent is concerned of a risk that Ms Abrego may become sick in the future from COVID-19. The argument in my view is untenable. Both vaccinated and unvaccinated people can become sick with COVID-19.
Ms Abrego has not established that she has been subjected to differential treatment of people who are vaccinated which amounts to direct discrimination. Ms Abrego is not being treated less favourable "in circumstances that are not materially different" to the vaccinated (s 49B(1)(a) of the Act). I have read and agree with Beech-Jones CJ at CL, observations in Kassam v Hazzard; Henry v Hazzard at [201] - [206] where a similar argument was raised in those proceedings, His Honour said (obiter): "… There is a material difference between being a person who is vaccinated and a person who is unvaccinated, namely, the degree of transmission threat they represent to others."
The submissions and evidence before me reveal that the relevant factor in the Respondent's decision to terminate Ms Abrego's employment was because she would not provide evidence of being vaccinated nor produce evidence of an exemption. For her to be able to perform her duties as a teacher, the PHO required her to provide evidence of being vaccinated or exempt from being vaccinated. Ms Abrego did not demonstrate either. That is the reason for the termination of her employment, not because of any discrimination under the law.
Ms Abrego's complaint does not raise indirect discrimination. However, if she did, I make the following observations. The existence of a condition or requirement imposed on an aggrieved person with which they must comply is necessary to succeed in a claim for indirect discrimination (s49B(1)(b) of the Act). I am not satisfied that there is any such condition or requirement because all education and care workers must comply with the PHO. The claim would fail on this basis. Further, indirect discrimination is qualified by the words "being a requirement which is not reasonable having regard to the circumstances of the case", which is not discrimination (s49B(1)(b) of the Act). Compliance with the PHO, in all the circumstances of this case is in my view reasonable. There is no discrimination when construing the Act.
All education and care workers are required to comply with the PHO. Ms Abrego is not being treated in any way differently to other employees who do not have a disability. There is no evidence before me that the complaint would reasonably meet the requirements of ss49A, 49B and 49D of the Act.
Also relevant to my decision in refusing leave to proceed is the exception in s 49P of the Act which applies in this case. The provisions in Part 4A do not apply against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health. I find that the conduct of the Respondent and the PHO was designed and implemented to protect its employees, and more relevantly students from possibly contracting COVID-19 and in doing so, public health.
The exception in s 54 of the Act in my view also operates where the vaccine mandate contained in the PHO has been made under the PHA. In that regard, the provisions of Part 4A do not apply in these circumstances.
I consider it fair and just to refuse leave because the claim is lacking in substance.
Leave to proceed is refused.
[3]
Order
1. Leave for the complaint against the Secretary, Department of Education to proceed is refused.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[5]
Amendments
13 May 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act the respondent's representative is amended to 'Kingston Reid' and any reference in the text to 'Mr Reid' is amended to 'Ms Baxter'.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 May 2022
It is not in dispute that Ms Abrego is a relevant education worker, being a teacher for the purposes of the PHO.
The relevant parts of PHO include at paragraph 4:
(1) The Minister directs that an education and care worker must not carry out relevant work on or after 8 November 2021 unless the worker has -
(a) had at least 2 doses of a COVID-19 vaccine, or
(b) has been issued with a medical contraindication certificate.
…
The provisions of the PHO require that the education worker must provide the worker's vaccination evidence in compliance with paragraph (1), to the respondent.
Given the findings of the Court of Appeal in Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299 and [2021] NSWSC 1320, I am satisfied that the PHO was in force during the period of Ms Abrego's employment and her complaint. On its face, the Respondent and Ms Abrego, are both required to comply with the PHO.
Statutory framework and principles governing the grant of leave
Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If at any stage during the investigation of a complaint, the President is satisfied that it is lacking in substance, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint (s 92(1)(a)(i)). It is this decision of the President which I have jurisdiction in these proceedings.
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].