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[2026] NSWCATAP 21
NCAT Appeal Panel
2026-01-28
G Blake AM SC, Principal MemberK Robinson, Principal Member
Original judgment source is linked above.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23
Campbell v Campbell [2015] NSWSC 784
Collins v Urban [2014] NSWCATAP 17
Cominos v Di Rico [2016] NSWCATAP 5
Donohoe v Albulario [2025] NSWSC 9
FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120
Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
McNeill v Clarence Valley Council [2025] NSWCATAP 184
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940
Ros v Commissioner of Police [2020] NSWCATAP 70
Schwedler v Sydney Local Health District [2025] NSWCATAD 181
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Shwan v Reachclad Pty Ltd trading as Ace Trailers [2025] NSWCATAP 308
SRGF v Comcare (No 2) [2025] FCA 752
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54
Yuen v Thom [2016] NSWCATAP 243
Schwedler v Sydney Local Health District [2025] NSWCATAD 181
(1) the key statutory provisions;
(2) the background to the discrimination complaint;
(3) the background to the appeal;
(4) the appeal;
(5) the jurisdiction of the Appeal Panel.
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires -
...
disability means -
...
(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.
...
The objects of this Act are -
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(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and
..
(g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.
...
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
...
(5) The Tribunal is to take such measures as are reasonably practicable -
(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and
(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
62 Tribunal to give notice of decision and provide written reasons on request
...
(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.
(3) A written statement of reasons for the purposes of this section must set out the following -
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so. by a party.
(1) a signed document dated 5 December 2022 and headed "Performance Review 7th December, 2022 of Thomas Schwedler, Social Worke" comprising 38 pages (the 5 December 2022 Schwedler document);
(2) a signed complaint dated 5 December 2022 and headed "Re Malfeasance as Perpetrated by Ms Donna Beeson, NUM" against Ms Beeson.
"Please see attached documents provided to me this morning from Tom Schwedler (11.00 - 11.35). Tom was quite distressed and as you can see from the attached included providing copies of attached previous dealt with matters.
Tom's mental health is deteriorating. He said, "suicide is an option" and how any other staff member who had endured this" would be dead. He spoke about his brother recently contacting him to check on him and his separation from his wife. I asked if Tom felt safe to return to the workplace post meeting to which he shrugged his shoulders...' I've worked here for 20 years'. Expressed no immediate intent to self-harm however he was clearly very consumed by the attached (as you can see from the volume of paperwork provided)
Please also find attached complaint letter dated 5 December 2022 provided at today's meeting. I do not believe Tom is currently fit for clinical duties."
"Merryn thanked Toni for meeting with us and advised the reason for the unplanned/last minute meeting. Merryn stated she was aware he had met with Tom today to do a PDR and Simon had contacted her concerned about Tom's welfare, and that in the process of the meeting, Tom had stated "suicide was an option". Tom calmly denied that he said this, and that in fact it was Simon who had asked him about this. Tom highlighted that having worked on an acute care team for many years, he was aware of the impact of suicide and self-harm on families and he would not do that to his wife, daughter or brother. He also stated he is a consumer, and that self-harm and suicide had never been an issue for him in the past.
I asked Tom if he was distressed today in the meeting, and that Simon had informed us that it was the most distressed Simon had seen him. Tom denied that he was distressed in the meeting. Although did say that because he thought Donna was going to be in the meeting today, he had done a lot of preparation, and because Donna wasn't in the meeting, it went a different way to the way he thought it would. Acknowledged that PDR's can be anxiety provoking, and Merryn highlighted that they are an opportunity to set goals and reflect on opportunities."
"Apologies I don't have the file note MH template to hand.
Simon Tully (ST), Tom Schwedler (TS) 11:00 - 11:35AM (Wed. 07/12/22)
1. PDR meeting held in-person between TS and ST today, Wed. 07/12/22, 11:00- 11:35, Aboriginal MH Unit Meeting Room, KGV RPAH, ground floor. Email correspondence including intranet link on where to access PDR documents provided in email to TS dated 24/11/22.
2. TS outlined his concerns regarding the PDR process in email dated 07/12/22 about room bookings and how this was management's responsibility and Donna Beeson's availability to attend today.
3. ST telephoned TS at approx. 10:30 AM today after receiving a SMS text from TS and again checked in with TS (in-person) prior to the PDR whether he was comfortable to proceed today to which he agreed.
4. TS produced attached documents as focus of today's PDR beginning with document: 'Performance Review 7th December, 2022 of Thomas Schwedler, Social Worker'
5. Each section was read (copy provided to ST) and copy with TS. TS also provided a signed copy of the code of conduct. TS expressed his dissatisfaction about the PAT process and asked for my comments (page 12 of 15) 'Questions for Line Manager and Clinical Senior' which, I did not feel were appropriate in the context of today's meeting. No verbal / written response provided by ST. This was explained to TS at today's meeting
6. In context of TS frustrations with reference to past grievances beginning from 2016 TS said 'suicide is an option' and that any other staff member 'would be dead' having to endure this process without resolution, TS explained his family situation including separation from wife and recent contact with his brother to check in on him. ST asked TS immediately after these comments as to whether he was able to proceed with clinical duties to which he nodded, shrugged shoulder and said 'I've been doing this for 20 years'
7. The meeting concluded at 11:35AM . ST advised TS acknowledgement of the new complaint letter dated 05/12/22 (attached) would be reviewed by myself and SLHD Workforce.
8. Due to concerns raised (item 6), ST telephoned SLHD MH Community Manager at 11:59AM, 07/12/22 to escalate concerns about TS's welfare.
ST also contacted Ms Donna Beeson to raise same concerns. In consideration of TS 'Wellness Plan' central to all management meetings (and raised again at today's meeting) together with TS disclosure as a consumer, TS ability to perform clinical duties must be assessed by his GP."
"Following our discussion early this afternoon regarding concerns of staff member Mr Thomas (Tom) Schwedler, Social Worker of the Eastern Sector Acute Care Services.
Please see below summary and timeline
07 December 2022 Simon Tully met with Tom to conduct his performance review and concerns were raised:
• Performance review actions were not discussed
• Discussion was around Tom's mental health wellness plan
• Tom discussed previous workforce matters from 2016, 2017 and 2021
• Documents attached that Tom provided to Simon in their meeting
• Tom stated he wanted to clear his reputation prior to leave
• Tom made statements 'suicide was an option and any other staff member that endured what he did would be dead'
Action: Simon to provide file note
Simon then escalated the matter to me. I contact Donna and Cath to notify of concerns
I attended Camperdown to meet with Cath and Tom
Meeting with Tom, Cath and I
• I stated to Tom that concerns were raised regarding 'suicide being an option, which Tom denied.
• I stated he attend this general practitioner and that Tom provide a fitness for duties certificate.
• EAP and support offered and declined
Action: Cath to provide file note
Updates provided to Andrew, Jay and Janice
Meeting held with Dora, Cath Simon and myself to discuss plan
• Two matters
○ Initial review to be conducted- by Dora who the concerns Tom has raised on 7 December 2022. Identify if these are new matters and matters from 2016, 2017 and 2021.
○ Risk Assessment- to be conducted by Dora regarding 'Tom wellbeing. Fixation on previous matters and Donna Beeson
▪ Proposal to remove from clinical duties, IME and remove from Donna's management! Eastern Sector ACS team.
○ Cath to conduct a further welfare check Tom advised he is unable to get an appointment with GP until Friday 3pm
○ Tom works Tuesday and Wednesday and not due to work until Tuesday 13 December 2022
○ Tom has excessive annual leave 244 hours = 15.5 weeks, sick leave= 30 hours and LSL 157 days
Cath and I also meet with Donna to conduct a welfare check and provide an update to Donna,
EAP was offered the declined. Communication with Tom to be held with Cath and Simon.
Action: Cath to follow up with Donna
I will provide further update once the initial review and risk assessments can be completed."
"As per our telephone conversation Mr Thomas SCHWEDLER attended Katoomba Station to speak with me. Mr SCHWEDLER indicated that his employer had arranged for a welfare check to be conducted on him and that was the reason for his attendance.
I spoke with Mr SCHWEDLER who at the time appeared to be in good spirits, well-spoken and appropriately dressed.
I asked Mr SCHWEDLER if he had made any comments about self-harm which he adamantly denied, stating that the conversation had been totally misinterpreted.
Mr SCHWEDLER was offered a number of support services and reminded of the options available to him. He advised that he will be attending his scheduled appointments and will be attending work."
"This is to certify that I have examined Thomas Schwedler on 9 December 2022. Thomas is medically fit to return to his usual work duties from 9 December 2022 inclusive."
"Removal from clinical duties + under supervision, 2 days/week pending further medical information. A/GM has advised duties (admin) will be available at Croydon CHC."
"Risk Management Measures
... the following risk management measures will be implemented:
1. The CE has determined that you will be removed from clinical duties in your role as a Social Worker, MHS and re-deployed into a non-clinical role under supervision, two (2) days per week pending further clarification from your General Practitioner (GP) via a Fitness for Duty Report.
2. Should there be unclear concerns about the GP's medical advice in accordance with the NSW Government Department of Premier & Cabinet Procedures for Managing Non-Work Related Injuries or Health Conditions (M2010-18), you (Applicant) will be referred to an Independent Medical Examination (IME) to seek further clarification into your fitness for duty to perform the inherent requirements of your role as a Social Worker, MHS. Following receipt of professional medical advice pertaining to your current medical health status, further action is to be determined. The policy directive is attached for your reference.
3. Effectively immediately, you will be allocated into a non-clinical role within Croydon Health Centre. You (the Applicant) would report to Ms Catherine Ryan A/Community Mental Health and Partnership Manager, MHS pending further medical advice."
"...
SLHD's Response
SLHD denies that it has discriminated against Mr Schwedler based on his disability. Under section 49D(2)(d) of the Anti-Discrimination Act 1977 (NSW), an employer discriminates against an employee by subjecting the employee to a detriment based on their disability. SLHD maintains that the decision to deploy Mr Schwedler to a non-clinical role was made after serious concerns for Mr Schwedler's wellbeing were raised arid the appropriate risk assessment and risk mitigation strategies were undertaken to ensure the safety of Mr Schwedler and the patients of SLHD. When serious concerns are raised and identified that there may be possible risks to staff or patient health, safety or welfare, it is the procedure of SLHD to undertake a Risk Assessment (RA). The Risk Management actions are reviewed and endorsed by the Chief Executive (CE), SLHD in order to implement the mitigation strategies as per the RA.
Background
On 7 December 2022, concerns were raised by Mr Simon Tully, Senior Social Worker - Mental Health Services (MI-IS), by way of a file note to Workforce - District Services and Ms Merryn Sheather, A/Community Mental Health and Partnership Manager, MHS, regarding Mr Tom Schwedler, Social Worker, MHS. The concerns included alarming commentary and fixations behaviour during the scheduled Performance Development Review (PDR) meeting held on 7 December 2022 at 11am.
During the PDR meeting, Mr Tully and Mr Schwedler went through and agreed on goals and entered these into the Performance and Talent (PAT) system. Mr Schwedler provided Mr Tully a signed copy of the NSW Health Code of Conduct and voiced his dissatisfaction about the PAT process. Mr Schwedler then proceeded with 'referencing past grievances beginning from 2016.' Mr Schwedler said 'suicide is an option' and that 'any other staff member would be dead' having to endure this process without resolution. This meeting was not scheduled as an exit interview for retirement. To our knowledge, Mr Schwedler did riot wish to consider retirement. As stated above, the purpose of the meeting was to conduct a PDR with Mr Schwedler.
"...
The reply from Ms Gina Finocchiaro requires commentary in detail.
...
Re "Mr Schwedler said 'suicide is an option"
I would never say such words. As I have provided Mr Tully with a signed copy of the specific words that I would use in the context of my meeting with him, there is no hard and tangible evidence that this statement was made. Any suggestion that I would suicide due to work-related reasons is thoroughly absurd and a nonsense. Any such behaviour by myself would go directly against everything that I have learned and put into practise in my workplace over the three decades of my career.
I had allowed scope for the extemporaneous use of language, with space specifically set aside for the inclusion, in the document, of any passing comments. The notion of suicidality for myself is so totally absent in my thinking that there was no inclusion of it anywhere in the thirty-eight-page document that had been provided to Mr Tully.
Re "Mr Schwedler said ..... that 'any other staff member would be dead' having to endure this process without resolution"
I made a brief extemporaneous comment about suicidality but not on these terms. I have too many protective factors that prevent me from behaving in such a way, but I understand that people with lesser experience and of a younger age may succumb in such a way. I accept that there was no inclusion of this extemporaneous comment, with a relevant explanation, included in the document provided to Mr Tully.
The emphases in my comments about suicidality were those suited to the context of a Performance Review/Exit Interview, with my clinical understanding of suicidality being tied to the nature of my employment as a clinician on the Acute Care Service. The flow of the conversation then caused me to attend to other substantial matters.
..."
"Complaint
The complainant alleges disability discrimination as follows:
The complainant has been employed in a clinical role as a social worker since 1989, working as a member of a team for the respondent at the Camperdown/Marrickville/Redfern Acute Care Service. Since 2015, his clinical responsibilities of assessing people in acute mental distress had been undertaken at the Camperdown Health Centre.
He also receives psychiatric services as a result of his medical condition, and the management of the Mental Health Services and the Executive of the Sydney Local Health District are aware of this.
On Wednesday 7 December 2022 he had a mandatory "Performance And Talent Review" with Mr. Simon Tully, Senior Social Worker. As he was due to retire in early 2023, he also used this opportunity as an Exit Interview and raised with Mr. Tully that the Executive of the Sydney Local Health District had not provided him with adequate Duty of Care.
On Thursday 8 December 2022, he was contacted by phone by the Sector Manager at his residence to enquire about his possible suicidality.
The local police conducted a Welfare Check on him. There were no acute clinical reasons for these actions.
On Thursday 29 December 2022, he was asked to attend a meeting with two managers. They informed him that he was to be redeployed to Croydon Health Centre in a non-clinical role commencing on Tuesday 3 January 2023 pending an investigation in regard to his suitability to be employed as a clinician"
(1) Mr Schwedler was represented by Ms Schwedler and Sydney LHD was represented by its counsel Mr M Moir;
(2) the Tribunal admitted into evidence and marked the following documents:
(a) President's Summary of Complaint (exhibit 1);
(b) Applicant's Points of Claim lodged on 6 November 2023 (Mr Schwedler's points of claim) (exhibit 2);
(c) Applicant's "Response to Reply of the Respondent" dated and lodged on 8 January 2024 (the 8 January 2024 Schwedler response) (exhibit 3);
(d) Applicant's Outline of Submissions lodged on 11 March 2024 (exhibit 4);
(e) Statement of Mr Schwedler dated and lodged on 8 January 2024 (the 8 January 2024 Schwedler statement) (exhibit 5);
(f) Statement of Ms Schwedler dated and lodged on 8 January 2024 (exhibit 6);
(g) "Response of the Applicant to the Statement of Simon Tully" dated and lodged on 11 March 2024 (the 11 March 2024 Schwedler response) (exhibit 7);
(h) the 28 December 2022 at 2:21 PM Ryan email (exhibit 8);
(i) Statement of Mr Tully dated and lodged on 7 December 2023 (the 7 December 2023 Tully statement) (exhibit 9);
(j) Statement of Ms Sheather dated and lodged on 7 December 2023 (the 7 December 2023 Sheather statement) (exhibit 10);
(3) the Tribunal made rulings that the following attachments to Mr Schwedler's points of claim were not admitted into evidence: 3, 8, 12 to 18, 21 so far as pages 390-411 of the Court Book, 22 and 23;
(4) Mr Schwedler and Mr Tully gave oral evidence.
(1) made the following orders (the dismissal orders):
"(1) The application is dismissed.
(2) Any party seeking an order as to costs should apply within 14 days of the date of this decision and indicate whether, in their view, the question of costs can be determined "on the papers" without the need for a further oral hearing."
(2) set out matters the following matters in the statement of reasons (the dismissal reasons):
(a) introductory matters ([1]-[4]);
(b) the relevant provisions of the A-D Act and applicable legal principles ([5]-[18]) including:
"[16] It is not the case that because a person has a disability and experiences something he or she perceives as "adverse" to that person, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard, which is the balance of probabilities, that the conduct impugned occurred "on the ground of", "due to" or "because of" the disability of the person. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned was the disability of the person, actual or imputed."
"[18] If, as in this case, an organisation has a policy for dealing with injuries, then the Tribunal may consider whether the policy itself is discriminatory and/or whether it was applied in a discriminatory fashion. If the policy itself was reasonably adapted to deal with issues in the workplace, and the Tribunal is not satisfied that it was applied differently or less favourably to the applicant than to others, then discrimination will not have been proven."
(c) set out relevant matters with respect to the discrimination complaint ([19]-[22]) including
"[19] The applicant filed a narrative Points of Claim document of 38 pages plus sixteen further attachments. He contended that the following were acts of discrimination:
(a) The way in which a Performance Development Review ('PDR') meeting was conducted on 7 December 2022;
(b) The fact that the person who conducted the PDR meeting (Mr Simon Tully) reported after the meeting to more senior management that the applicant had alleged suicidality and that he did not appear to be fit for his clinical duties as an acute care Social Worker;
(c) The unexpected meeting called by the applicant's senior managers with him after the report by Mr Tully to the meeting;
(d) The follow up telephone call to him the following day;
(e) Having the NSW Police conduct a welfare check on him;
(f) Being required to get a GP's report and later the report of a psychiatrist;
(g) Being placed on non-clinical duties;
(h) Conduct by his line manager, Ms Donna Beeson (referred to here as 'the line manager') towards him that he perceived as discriminatory.
[20] As to the conduct by his line manager, his complaints went back to 2016 and went beyond discrimination and alleged "corrupt conduct to the point of criminality". The line manager was not involved in the PDR meeting on 7 December 2022, although the applicant had expected or anticipated that she would be involved in it, as his immediate line manager."
(d) set out matters with respect to the hearing and uncontroversial matters relating to the employment of Mr Schwedler ([23]-[24]);
(e) set out matters with respect to the condition of Mr Schwedler and the January 2022 compensation claim ([25]-[30]) including:
"The Disability
[25] The applicant also received psychiatric services as a result of a medical condition and it was common ground that management were aware of the mental health services.
[26] It was common ground that the applicant had a disability within the meaning of the Act and that the executive of the Sydney Local Health District were aware of this. In his Points of Claim that applicant states that:
"In 1976 I had an initial episode of schizophrenia while studying at university. In mid-1984, I had an acute episode while I was completing a degree in social work. I chose to resume my life without professional psychiatric intervention... from the time of my discharge from hospital in 1976 the contact that I had with GP was for physical health concerns... my current GP has provided support from 2014 due to what have been the formal medico legal requirements of the workers compensation claims of 2016, 2022 and 2023, I now confer with my GP about my mental health"....
[27] The evidence is that the applicant advised his managers that he was "a consumer". In his Wellness Plan, a document agreed by the applicant and respondent in settlement of an earlier discrimination claim by the applicant, he states in that document that it was:
"important to ensure that team members develop an understanding that I am a consumer and that has an effect on my work performance" (see for example CB231 - 232).
[28] One of the documents that the applicant provided to Mr Tully was a copy of "GP Session 27/4/21" which stated, in part that:
My mental health is not sufficiently affected for me to resort to the use of anti-psychotics. I have no obvious symptoms that would damage my reputation publicly or in the workplace" (CB235).
[29] It is clear from these documents that the applicant sees his mental health condition as a continuing one, though controlled by diet, exercise, good relationships, contact with his doctor and through medication if required."
(f) set out the sequence of events and response of the Sydney LHD between 7 December 2022 and 29 December 2023 ([31]-[60]). In particular, it referred to a Wellness Plan that he had agreed with Sydney LHD in 2021, as brokered by Anti-Discrimination NSW, to the effect that Mr Schwedler would be given notice of any meeting and an ability to prepare for it (the Wellness Plan) ([49]);
(g) summarised the arguments of the parties ([61]-[86]). In particular:
(i) it found that what happened before and after the complaint period from 7 December 2022 to 2 January 2023 was not before the Tribunal ([66]);
(ii) it set out the submissions of Sydney LHD with respect to the 11 March 2024 Schwedler response ([70]):
"[70] Further, the respondent submits that the applicant has been inconsistent in his account of what occurred during the meeting with Mr Tully on 7 December 2022. In his "Response of the Applicant to the Statement of Simon Tully" filed on 1 March 2024, CB569, the applicant says that whilst he was reading from his prepared documents at the PRD meeting,
"The applicant made the comment that he could understand why some people would consider suicide as a means of escaping persecution from a bully. This brief spoken comment was an allusion to what is the expert and learned clinical understanding of the Applicant regarding failures to properly address bullying in the broader community"."
(iii) it set out some of the oral evidence of Mr Schwedler as to his conversation with Mr Tully in the PDR meeting ([71]-[77]):
"[71] During the hearing, when the applicant was cross examined, he was asked whether he brought up suicide. He said words to the effect of;
"No. I engaged in some conversation about suicide. I remember a brief conversation about suicide but not to do with me, to do with kids bullying. The conversation regarding suicide may have been initiated by him (ie Mr Tully). It was in generalities. My employment is to prevent suicide. I don't remember exactly".
[72] The applicant confirmed that he did not recall the exact words in the interchange with Mr Tully.
[73] The applicant also denied in cross examination that he had told Mr Tully that he was separated from his wife or that his brother had recently come to check on him and said that he and his brother contact each other about the care of their elderly mother, all matters that Mr Tully alleged that he had said.
(1) a notice of appeal form dated 1 August 2025 in which he:
(a) completed section 5A headed "Orders challenged on appeal" in the following manner:
"The Order requested to be changed by the Appeal Panel is the decision of the Tribunal to dismiss the original application."
(b) completed section 5B headed "Grounds of Appeal" in the following manner:
"1. The Tribunal has failed to abide by the Objects of the Civil and Administrative Tribunal Act 2013 Section 3 (d) and Section 3 (g) by failing to promote confidence in Tribunal decision-making in not having resolved the real issues in proceedings.
2. The Appellant challenges the decision of the Tribunal with Questions of Fact and Points of Law. The Appellant was treated as a mentally disordered person in a workplace that puts into effect the Mental Health Act 2007 (CB 108). Actions undertaken with the Appellant were a violation of his rights to be treated as a competent, capable employee by acting as though a conversation with him had caused a clinical emergency. The way the Appellant was treated could possibly have had fatal consequences for the Appellant due to contravention of the Work Health and Safety Act 2011 No10 (CB 93 to 107)
3. There were compromises in the procedures of the hearing. The Respondent had failed to abide by the Rule of Law even though its representation was undertaken by a barrister. The Respondent failed to put a defence before the Tribunal that allowed the Tribunal to determine the truth of the matter based upon its merits. The Tribunal has neglected this fact in its deliberations. The Tribunal failed to ensure a level of procedural fairness that was actually fair and reasonable.
4. What was apparent during the proceedings was that the Respondent sought to win at all costs The Respondent engaged in obfuscation, taking advantage of the fact that the Appellant was represented by an inexperienced agent with only a lay understanding of proceedings. In its decisions, the Tribunal did not compensate for this obvious ruthlessness on the part of the Respondent.
(c) completed section 5C headed "Orders the NCAT Appeal Panel should make" in the following manner:
"The Orders that the Appeal Panel should make are:
To put aside the decision of the Tribunal as Rule of Law has not been followed by the Respondent. The hearing before NCAT needs to be started afresh."
(d) completed section 6A headed "Application for Leave to Appeal" by attaching a document comprising eight sections of which sections 1 to 4 are set out below and of which it is unnecessary to set out sections 5 to 8 which contain a detailed response to particular paragraphs of the dismissal reasons:
"1.
The Tribunal has made a decision based upon a partial understanding of the context in which discrimination exists within the workplace. Discrimination as exhibited by the Respondent is more than a sequence of events and is a normal part of how the workplace functions. This discrimination is automatic, and difficulties exist for the Respondent to behave in a way that is non-discriminatory. Employment is not tailored to provide a person who is a consumer/clinician with basic protections so that the inherent discrimination that exists in the workplace does not become problematic. The behaviour of the Respondent crosses over into industrial relations concerns. The Respondent does not have a policy to protect consumer/clinicians as employees. (Court Book 22)
The Appellant is a social worker and has a workplace obligation to attend to his responsibilities of employment within proper professionally accountable boundaries. The primary person involved in the action that has been brought before NCAT is the Senior Social Worker, Mr Simon Tully. Since 2016, the behaviour of Mr Tully towards the Appellant has lacked a basic clinical acumen and, as a consequence, the behaviour of Mr Tully became intrinsically discriminatory. Mr Tully failed in his responsibilities as a mentor. The Appellant was obligated to cooperate with Mr Tully because of his position of authority but the lack of professional discernment as practised by Mr Tully reached an impasse on 29/09/2021 (CB 696). Discrimination expressed towards the Appellant by Mr Tully became accepted with executive staff commenting "...Mr Schwedler was comfortable with Mr Tully's supervision" (CB 822). As commented upon by Ms Gina Finocchiaro, Director Workforce and Corporate Operations, this is hard evidence of a serious lack of discernment and administrative understanding. Offensive behaviour was repeated on 14/12/2022 (CB 745).
The Respondent has a protracted record of engaging in discriminatory actions that are not reasonable. The matters at issue with NCAT is the second occasion during which the Appellant has engaged with the Respondent at a nominal state of being on equal terms. The previous occasion was in 2017 when the Appellant was interviewed as part of an internal investigation. The Investigation concluded with an Investigation Assessment Report. A comment in the report included the assertion "...Mr Schwedler failed to disclose his chronic health condition when directly given the opportunity by Mr Tully..." (CВ 423). At the time of interview, the Appellant had already been employed with the Respondent for a period of more that twenty-seven years. If the health condition of the Appellant was chronic, he would not have been able to sustain successful employment for more than two decades. The Investigation Assessment Report is not a credible document for a variety of reasons, but this has not prevented it from being used to the detriment of the Appellant (CB 23, 24). If the Appellant had a chronic health condition, he would not need to disclose this to an executive clinician, as Mr Tully, in being the Senior Social Worker, should have been able to discern this without the Appellant needing to provide confidential information.
(2) an application for stay of original decision pending appeal form dated 11 August 2025 in which he sought a stay of order 1 of the dismissal orders (the stay application).
(1) each of Mr Schwedler's grounds of appeal is without merit;
(2) none of the matters raised by Mr Schwedler is a proper basis for granting leave to appeal.
(1) Submission in support of the Application for a Stay lodged on 8 August 2025 comprising 30 pages (Mr Schwedler's stay submissions);
(2) Submission in support of Appeal lodged on 2 October 2025 comprising 30 pages (Mr Schwedler's appeal submissions);
(3) Summation for hearing of Appeal lodged on 27 November 2025 comprising 51 pages (Mr Schwedler's summation);
(4) Response to Reply of the Respondent (Mr Schwedler's response) plus Opening Address (Mr Schwedler's opening) lodged on 27 November 2025 comprising 67 pages (Mr Schwedler's opening).
(1) Respondent's Evidence lodged on 21 November 2025 in five lever arch folders being:
(a) the Court Book at first instance excluding documents not admitted into evidence comprising the following documents:
(i) President's Summary of Complaint dated 16 August 2023;
(ii) Mr Schwedler's filed submissions and evidence;
(iii) the Secretary's filed submissions and evidence;
(iv) the parties' closing submissions;
(b) the transcript of the hearing;
(c) three other documents including the list of objections to Mr Schwedler's point of claim;
(2) Respondent's Submissions in Opposition to the Appeal lodged on 21 November 2025 (the Secretary's appeal submissions).
(1) having regard the fact that Mr Schwedler is self-represented, the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act and the principles in Cominos v Di Rico [2016] NSWCATAP 5 at [13] with respect to self-represented litigants, we have reviewed Mr Schwedler's notice of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal;
(2) we have decided whether the ground raises with sufficient particularity a question of law and if so decided whether the Tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41] (Beech-Jones J) citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 353 (Mason CJ); [1990] HCA 33; cited with approval together with other authorities in Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [53]- ;
"[33] ... Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision. Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant. Any potential prejudice to the other party upon the receipt of further evidence is also relevant. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant.
[34] In an appeal which determines whether error has occurred, it is the decision at first instance that the Appeal Panel must examine. ...
[35] Even though the Appeal Panel has power to receive further evidence, its powers in an appeal that is not a new hearing would ordinarily be construed on the basis they are to be exercised for the correction of error. ..." (citations omitted)
(1) whether the Tribunal made an error in answering any question of law;
(2) whether leave to appeal should be granted on any ground, and if so the Tribunal made an error.
Findings in relation to the documents relied on by Mr Schwedler
(1) Recover @ Work Plan of NSW health for Mr Schwedler for the period from 1 May 2025 to 12 May 2025 dated 6 May 2025 and signed by Mr Schwedler and his supervisor (Mr Schwedler's 6 May 2025 work plan);
(2) three completed certificate of capacity/certificate of fitness forms of State Insurance Regulatory Authority forms signed by Mr Schwedler and dated 12 June 2026, 8 July 2025 and 4 August 2025 respectively;
(3) his letter dated 6 August 2025 to Paula Williscroft, Executive Director People and Culture of Sydney LHD stating his "Grievance about sustained mismanagement by Mr Simon Tully" in which he alleges that Mr Tully made a fraudulent claim in the PDR meeting.
(1) the submission on the A-D Act includes a reference to s 50 which deals with victimisation and an application by Mr Schwedler under s 103 to amend the complaint to include age discrimination against him under s 49ZYB by Sydney LHD in the appeal (the amendment application). The reference to s 50 is not relevant as the complaint did not include any allegation of victimisation. We dismiss this application as the appeal is against the dismissal decision;
(2) the submission on the NCAT Act have been considered in the context of our consideration of ground of appeal 1;
(3) the submissions on the other Acts are not relevant to the appeal which is against the dismissal decision.
(1) the statutory declaration of Mr Schwedler declared on 25 June 2018;
(2) a chronology of events for the complaint period;
(3) the Model Litigant Policy for Civil Litigation (the Model Litigant Policy);
(4) the letter of Dr Lenthen dated 19 January 2023 addressed to Ms Hazzouri recording his assessment of Mr Schwedler (the 19 January 2023 Lenthen letter).
(1) Mental Health Services Policy issued in March 2021 of Sydney LHD;
(2) Position Description for Professional Senior Social Worker (Level 6).
Whether the Tribunal made an error in answering any question of law
"[21] The onus of demonstrating grounds for recusal on the basis of actual bias lies with the party asserting it: Jia v Minister for Immigration and Multicultural Affairs [1998] FCA 768; (1998) 84 FCR 87 at 106, 107 (per French J) cited with approval in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [37] (per Gleeson CJ and Gummow J).
[22] The focus of an enquiry into actual bias is upon whether the judge is sufficiently impartial to permit justice to be done: QYFM at [120] (per Edelman J).
[23] A finding of actual bias requires a finding that a judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Jia Legeng at [72].
[24] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun) at 127 (per Burchett J). As was said by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97] (and the authorities cited therein), a claim of actual bias must be distinctly made and clearly proved, should not be made lightly, and requires cogent evidence.
[25] Actual bias requires an "assessment of the state of mind of the judge in question": Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. The only person truly capable of knowing whether actual bias is present in the person's mind is the subject judge, but an objective assessment must also be undertaken by the subject judge and others: at [115]-[120].
"[76] It is well established that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. (It may well be that the principle extends to criminal proceedings but that issue need not be considered.) If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection."
Jurisdictional error - failure to accord procedural fairness
(1) held (at [37]) that the obligation to accord procedural fairness is contained in s 38(5) of the NCAT Act, although that is by no means an exhaustive statement of the obligation;
(2) cited (at [38]) Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [202] where the Full Court of the Federal Court (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) held in the context of an appeal from a decision of the Administrative Appeals Tribunal that an appeal on the question whether the Tribunal made a jurisdictional error in a specified respect, such as denying a party procedural fairness, would be an appeal on a question of law.
"[185] We have already noted the appellant's status as a self-represented party before the Tribunal at first instance. This raises the question of the extent of the duty on NCAT to assist a self-represented party in administrative proceedings such as those conducted in the Tribunal at first instance. In Chalik v Chalik [2025] NSWCA 136 (Chalik) at [67]-[72], the Court of Appeal recently considered the extent of the duty on a court to assist a self-represented party in civil proceedings. The Court (Bell CJ, Payne JA, Free JA) rejected the proposition stated in an earlier Court of Appeal decision in MHT v State of New South Wales [2025] NSWCA 122, that a court has an "obligation to ensure" that an unrepresented party does not, "because of lack of legal skill, fail to claim rights or put forward legal arguments". That statement "significantly overstates a court's responsibility to an unrepresented litigant and is far too absolute in its use of the expression "an obligation to ensure ...": Chalik at [68].
[186] In Chalik, the Court reviewed previous decisions of intermediate appellate courts which have emphasised that an unrepresented litigant should be provided with sufficient information about the practice and procedure of the court to ensure a fair trial takes place. Even then, care must be taken not to disturb the balance which the rules of practice and procedure are designed to afford both parties: at [69].
[187] In Bauskis v Liew [2013] NSWCA 297 at [69], in which Gleeson JA (Beazley P and Barrett JA agreeing) noted that the duty of a trial judge to assist an unrepresented litigant "does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant". Further, in Cicek v Estate of late Solomon [2014] NSWCA 278 at , Ward JA (Meagher and Barrett JA agreeing) held that none of the cases her Honour had reviewed:
"[130]...suggests that the primary judge in the present case had a duty to advise the appellants as to the inadequacies in their evidence having regard to the pleaded case or to adjourn the proceedings in order to permit them further time to re-plead their case in order for it to accord with the statement being made from the bar table as to the forgery complaints. A duty to provide information in order to attempt to overcome the procedural disadvantages faced by a self-represented litigant is not a duty to run the case for him or her."
[188] In Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21], McCallum JA (Basten and Leeming JJA agreeing) observed that in some circumstances it would be appropriate for courts to give the correct legal construction to an arguable point expressed poorly by a self-represented litigant. However, courts are not required to analyse lengthy, unstructured assertions and misconceptions to ensure that a self-represented litigant has not missed an arguable point.
[189] We see no reason why similar principles would not apply in relation to NCAT proceedings, both administrative and civil proceedings. The principles set out in the NCAT Act at s 38(5), and s 38(2), should be understood in light of the principles in the case law referred to above."
"[6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. ..."
"[13] The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.
[14] The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
The failure of the Tribunal to provide adequate reasons
Whether grounds of appeal 3, 4, 8 and 9 raise a question of law
(1) Mr Schwedler has adduced no evidence in support of this ground of appeal;
(2) in circumstances where Mr Schwedler has not identified any part of the transcript of the hearing and the dismissal decision that demonstrates the impugned behaviour, there is no basis for drawing an inference that the members of the Tribunal were "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented";
(3) so far as the first aspect of the impugned behaviour, as Mr Schwedler must have had knowledge of this behaviour during the hearing and did not take objection to the Tribunal continuing to hear the discrimination complaint then pursuant to the principles in Michael Wilson & Partners at [76], he is taken to have waived the objection;
(4) so far as the second aspect of the impugned behaviour, we have been unable to detect anything in the dismissal decision that indicates that the Tribunal did not decide the discrimination complaint on its merits;
(5) Mr Schwedler has not made any of the three contentions identified by Hayne J in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [185], which are referred to in FZK at [27], in relation to the members of the Tribunal when hearing the discrimination complaint and making the dismissal decision.
Ground of appeal 3 - Failure to accord procedural fairness
(1) there was no obligation of procedural fairness within s 38(5) of the NCAT Act or otherwise for the Tribunal to require evidence from Ms Beeson and Ms Ryan. The Registrar had already refused the application of Mr Schwedler to issue a summons to give evidence to Ms Beeson and there had been no appeal from that decision or request to the Tribunal constituted by a member to issue the summons. It was a matter for Sydney LHD to decide what evidence it adduced in its defence to the discrimination complaint;
(2) if, contrary to our finding, the Tribunal was in error in not issuing a summons to give evidence to Ms Beeson or otherwise to failing to require evidence from Ms Beeson, this error was not jurisdictional because evidence from Ms Beeson could not have been material to the dismissal decision as she had no dealings with Mr Schwedler during the complaint period;
(3) if, contrary to our finding, the Tribunal was in error in failing to require evidence from Ms Ryan, this error was not jurisdictional because evidence from Ms Ryan could not have been material to the dismissal decision in the light of the following findings of the Tribunal:
(a) the finding that it preferred the evidence of Mr Tully as to what was said during the PDR meeting ([91]);
(b) the findings that the actions taken by Sydney LHD were taken in accordance with a pre-existing policy and constituted reasonable managerial action that flowed from the behaviour of Mr Schwedler, in making the alarming statements he did, reading from the voluminous documents which went well beyond the period of the annual review and his appearing quite distressed during the interview ([115], [118]).
Ground of appeal 4 - Failure to accord procedural fairness
(1) there is no evidence that Mr Schwedler sought to tender the 19 January 2023 Lenthen letter or that the Tribunal was otherwise aware of its existence;
(2) Mr Schwedler did not refer to a failure of the Tribunal during the hearing to accord him procedural fairness in accordance with s 38(2) and (5) of the NCAT Act or otherwise in the light of the principles in McNeill at [185]-[189];
(3) if, contrary to our finding, the Tribunal was in error in not requiring the tender the 19 January 2023 Lenthen letter into evidence, this error was not jurisdictional because the evidence of Dr Lenthen as to his assessment Mr Schwedler post dated the complaint period and so could not have been material to the dismissal decision.
Ground of appeal 9 - Failure to provide adequate reasons
(1) the poor understanding of Mr Schwedler's mental health condition in the dismissal decision at [25]-[30]. In particular, he contends:
(a) that the heading "The Disability" is a prejudicial stereotype held by the Tribunal;
(b) the quotation from the Wellness Plan at [27] is incomplete;
(c) the quotation from the document at [28] "is a misreading of the document and its purpose";
(d) the reading by the Tribunal of the documents quoted at [26]-[28] "is inadequate and conforms to no more than a stereotypical lay understanding";
(2) the language used by the Tribunal in the dismissal decision as follows:
(a) the word "alleged" ([19(b)], [20]);
(b) the findings of his prior disagreements with Mr Tully ([65]) and his allegation about action following the PDR meeting ([88]) are in error;
(c) the expression "common ground" ([25], [26], [44], [45]);
(d) the word "fixedness" ([92]);
(e) the words "suicide is a possibility" ([102]);
(f) the words "tolerated in the workplace" ([37]);
(g) the words "lengthy documents" ([93]), "voluminous written documents" ([94]), "reading from voluminous documents" ([102]), "copious notes" ([113]), and "voluminous documents" ([115]).
"...
[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard ...
...
[71] ... there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act ...
[72] Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed.
...
[76] What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context.
[77] These principles include the following:
(1) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole";
(2) the court should not read passages from the reasons for decision in isolation from others to which they may be related;
(3) the reasons must be read fairly and as a whole;
(4) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error;
(5) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips." (citations omitted)
"[60] When it comes to considering the related question of the standard to be reached in complying with the requirements of s 62(3), it is important to note that, in the context of appellate review of the adequacy of reasons, an appellate court is not required to determine the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard.
...
[62] ... it may be appropriate for the Appeal Panel to be held to a higher standard of adequacy in respect of its written statements of reasons than might apply to reasons of the Tribunal at first instance. ...
[63] Other relevant, more general principles concerning the adequacy of reasons for decisions include:
(1) One of the functions of reasons for decisions is to explain to the losing party why that party lost;
(2) Reasons should be read fairly and as a whole to determine whether they are adequate; and
(3) It is open to a decision maker to accept and incorporate by reference one party's submissions, as long as it is clear what is being accepted." (citations omitted)
(1) they meet the minimum acceptable standard as they are detailed and clearly explain to Mr Schwedler why he lost;
(2) while we accept that the quotation from the Wellness Plan at [27] is incomplete, we do not accept that the omission alters the essential point that Mr Schwedler advised his managers that he was "a consumer";
(3) while we accept that the evidence of Mr Tully recorded in [39] and the 7 December 2022 at 1:02 PM Tully email in [43] is that Mr Schwedler said "suicide is an option", the statement of the Tribunal in [102] that Mr Tully reported that Mr Schwedler said "suicide is a possibility" while inaccurate did not alter the essential finding that this expression together with the words that any other staff member "would be dead" reasonably indicated to a person with managerial responsibility for the health and safety of employees and the public who may interact with employees, that it was possible that the life or health of an employee could be at risk;
(4) some of the criticisms of Mr Schwedler reflect his disagreement rather than any inadequacy. For example:
(a) the findings of his prior disagreements with Mr Tully ([65]) and his allegation about action following the PDR meeting ([88]);
(b) the word "fixedness" ([92]);
(c) the words "tolerated in the workplace" ([37]);
(d) the Tribunal's description of the 7 December 2022 Schwedler documents as "lengthy documents" ([93]), "voluminous written documents" ([94]), "reading from voluminous documents" ([102]), "copious notes" ([113]), and "voluminous documents" ([115]);
(5) some of the criticisms of Mr Schwedler are without any foundation. For example:
(a) as to the use of the word "disability", the Tribunal was required to decide whether Sydney LHD unlawfully discriminated against Mr Schwedler "on the ground of disability" within ss 49B and 49D(2) of the A-D Act during the complaint period;
(b) the word "alleged" in [19(b)] is appropriate before the Tribunal had made finding in relation to the conversation between Mr Schwedler and Mr Tully in the PDR meeting;
(c) the word "alleged" in [20] is appropriate because there had been no finding by the Tribunal or another competent body in relation to the complaints of Mr Schwedler against Ms Beeson going back to 2016;
Whether leave to appeal should be granted on any ground, and if so the Tribunal made an error
Ground of appeal 1 - Failure to abide by the objects of the NCAT Act
(1) he is the real expert on his experience of discrimination;
(2) the Tribunal did not deal with the events and matters of which he complains from 2016;
(3) the Tribunal made a spelling error in the dismissal decision at [51];
(4) the dismissal decision is divided into subsections by the use of headings which are not "delineated correctly" because the Tribunal did not address a substantial lack of documentation disclosed by Sydney LHD under the heading "Arguments of the parties" and the Tribunal did not refer to all relevant legal obligations and policies in the context of the material under the heading "Workplace health and safety obligations".
(1) as the Tribunal explained in the dismissal decision at [16], the subjective experience of the person is not the test of whether he has suffered unlawful discrimination;
(2) the Tribunal was correct in confining itself to the events of the complaint period;
(3) the incorrect spelling of Mr Schwedler in the dismissal decision at [51] does not give ride to a substantial miscarriage of justice because it is clear from the context that he is being referred to;
(4) the organisation of the dismissal decision under headings is an aid to its understanding. Mr Schwedler does not identify what documents Sydney LHD failed to adduce in evidence or what other legal obligations and policies were applicable in relation to its workplace health and safety obligations.
Ground of appeal 2- Mr Schwedler was unlawfully treated by Sydney LHD as a mentally disordered person
(1) we are not satisfied that Mr Schwedler raised this argument before the Tribunal;
(2) the only matter which the Tribunal was required to decide was whether Sydney LHD unlawfully discriminated against him in his employment of the ground of disability during the complaint period. In the absence of relevant evidence, the question of how Sydney LHD characterised Mr Schwedler was not a matter that required determination;
(3) the Tribunal was not satisfied that the steps taken by Mr Tully or by other officers of Sydney LHD were discriminatory as they constituted reasonable managerial action that flowed from the behaviour of the Mr Schwedler.
Ground of appeal 5 - The Tribunal should have applied a higher standard of proof to any defence claimed by Sydney LHD due to the nature of its workplace
Ground of appeal 6 - The Tribunal erred by not taking into account discriminatory conduct engaged in by Sydney LHD prior to the complaint period
(1) on the proper construction of Pt 9 Div 3 of the A-D Act the jurisdiction of the Tribunal is confined to the determination of the referred complaint. The only exception is where the Tribunal in the exercise of the power in s 103 of the A-D Act amends the complaint. No such amendment was made by the Tribunal;
(2) the Tribunal in the dismissal decision at [66] correctly confined itself to determining whether or not there had been disability discrimination in the complaint period and making reference to what had happened earlier as background information;
(3) the Tribunal has no jurisdiction in determining whether there had been malfeasance by Sydney LHD.
Ground of appeal 7- The Tribunal discounted the relevance of the Wellness Plan
(1) the Tribunal made a ruling that the Wellness Plan was not be admitted into evidence and there is no appeal against this ruling;
(2) in any event, the Wellness Plan was created before the complaint period and does not bear upon the question of whether Sydney LHD unlawfully discriminated against Mr Schwedler in his employment of the ground of disability during the complaint period.
Ground of appeal 10 - The dismissal decision is against the weight of evidence
(1) where a trial judge is faced with a stark choice between irreconcilable amounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence are all matters of primary importance;
(2) the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation;
(3) in cases involving events which occurred long before the litigation, a court usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable, and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation . Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable facts, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine.
"41. Because the Line Manager did not participate in the meeting, the PDR that eventuated was not what I had expected. I read the details of the longer script that I had prepared. This script was in the form of a signed and dated medicolegal document.
42.` I read out the details in the section on Career Development on page 20 about the failure of the Respondent with Duty of Care responsibilities to me.
43. In the workplace, Duty of Care and suicide prevention exist in tandem.
44. I made a brief extemporaneous comment about the consequences of relentless bullying, as evidenced in the community. I indicated that I could understand why people subjected to such relentless behaviour would suicide.
45. My comment was about my professional clinical understanding of the failure to address bullying in the community.
46. My comment was not at all related to myself. I have numerous protective factors. My attitude to employment is strictly professional, without extraneous emotion.
47. The flow of the conversation then moved on to other matters.
48. The PDR meeting lasted for forty minutes, concluding at 11:40am."
During this meeting:
I. the Applicant was quite distressed and said words to the effect of suicide is an option and how any other staff member who had endured this would be dead;
II. the Applicant spoke about his brother recently contacting him to check on him and his separation from his wife;
22. I read to the Senior Social Worker from the detailed and scripted document I had prepared for the PDR. This document had no details in it about personal distress.
23. The Respondent is familiar with my practice of reading from a script at meetings with senior management. This is a strategy I have employed to manage the complex demands of extemporaneous decision-making.
24. The assertions provided by the Senior Social Worker are false.
25. I was not distressed. I was not agitated. I was assertive with what I was saying.
26. I did not say words to the effect of "suicide is an option".
27. I did not say "any other staff member who had endured this would be dead".
28. These two comments are falsehoods fabricated by the Senior Social Worker.
29. I did not speak with the Senior Social Worker in detail about my private life.
30. The Respondent is aware of my record of contact with the Senior Social Worker. He had defamed me in 2018. The Respondent was actively aware of my further concerns as raised about his lack of objectivity, at the Conciliation Conference in 2023 with Anti-Discrimination NSW.
31. That I would confide in the Senior Social Worker in making detailed and crucial comments about my personal life is highly improbable."
"Point 20: The Applicant also spoke to past grievances from 2016 and during the meeting said "suicide is an option" and that any other staff member "would be dead" having to endure this process without resolution.
The Applicant vehemently rejects Mr Tully's versions of events as stated in Point 20. This claim of Mr Tully resulted in the Applicant being subjected to a severe detriment, contravening Section 49D(2)(d), specifically related to the disability of the Applicant.
The Applicant read his document, at approximately one page per minute, allowing for brief extemporaneous comments, as required. He was matter of fact and proficient in his use of the available time. His actual behaviour was not that of being distressed.
He read out the section on Career Development and the failure of the Respondent in Duty of Care responsibilities to him. Suicide prevention and Duty of Care exist actively in the workplace in tandem. The Applicant discussed vulnerability and powerlessness for those with exacerbated mental health issues, especially when dealing with subtle and relentless bullying. This was in keeping with the academic tenor of the document.
The Applicant made the comment that he could understand why some people would consider suicide as a means of escaping persecution from a bully. This brief spoken comment was an allusion to what is the expert and learned clinical understanding of the Applicant regarding failures to properly address bullying in the broader community.
No written or verbal comments were made about personal distress. The Applicant did not confide in Mr Tully. No mention was made of personal inclination toward suicidality.
The meeting concluded with the Applicant then handing a copy of the prime document to Mr Tully, before resuming his clinical duties and his other responsibilities for the day.
Point 22..... the Applicant appearing quite distressed in this meeting ....that the Applicant had said words to the effect that "suicide is an option"
Again, the Applicant vehemently rejects this version of events put forward by Mr Tully.
The actual written words used here, formally in the Statement by Mr Tully 'to the effect that "suicide is an option", have the denotation that he is reporting an interpretation of what the Applicant had said rather than Mr Tully relying upon the exact words that were claimed by Mr Tully to have been spoken by the Applicant on 7 December 2022.
(1) as to whether he was distressed (Tcpt, 4 April 2024, pp 102-103):
"M Moir
So I want to suggest.
M Tibbey
So first one, you went into the meeting quite upset. No.
M Moir
And I want to suggest that during the meeting you were upset.
T Schwedler
No.
M Moir
And during the meeting you were. As you were talking about the issues in the 38 pages, you were becoming emotional.
T Schwedler
No, I was becoming assertive.
M Moir
What do you mean by assertive?
T Schwedler
Here I am in a situation where I can discuss things fully with Mister Tully that hadn't been addressed in such a way that Mister Tully is presented with incontestable evidence of malfeasance.
M Moir
So the allegation you were making against Miss Beeson was quite a serious one. You've suggested in your letter of 5 December that she's engaged in. I think your words are corrupt activities.
T Schwedler
Yeah.
M Moir
So it's a serious allegation that you have made. And what I want to suggest is that as you were talking to Mister Tully about Miss Beeson, you were visibly upset.
T Schwedler
No."
(2) as to whether there was conversation about suicide (Tcpt, 4 April 2024, pp 110-113):
"M Moir
Can I suggest to you that in that context you said to Mister Tully words to the effect that suicide is an option.
T Schwedler
Now look at me, okay? First time you met me, okay? Or whatever, okay? Do I look as though I'm suicidal. Do you ever consider that?
T Schwedler
I kill myself.
M Moir
Tell me, could you just answer the question?
T Schwedler
No.
M Moir
Did you say words to the effect that in the face of all of your treatment thus far at the hands of Miss Beeson and Mister Tully, that suicide was an option?
T Schwedler
Ridiculous. No.
M Moir
Did you say words to the effect to Mister Tully that any other staff member would be dead having to endure the process that you have endured without resolution?
T Schwedler
Okay.
M Moir
Did you say words to that effect? It's a very specific question.
T Schwedler
Yeah, but you're asking me a question. And in your question, there's a resonance where Mister Tully got those words from.
M Tibbey
Now look, just answer the question. It's a structure.
T Schwedler
Ask it again.
M Moir
Did you say to mister Tully, words to the effect that any other staff member would be dead having to endure the process that you have endured without resolution?
T Schwedler
Oh, I never say this, Mister Tully
M Tibbey
So you deny that you said no.
T Schwedler
No, I denied it entirely. Okay.
M Moir
Do you agree that you did bring up the topic of suicide during the meeting?
T Schwedler
No. No. No. I engaged in some conversation about suicide. But I don't have a transcript of exactly what happened.
T Schwedler
In the conversation with Mister Tully, he indicates that he raised some issues or something like this, or that I engaged in some conversation with him. But I remember that there was a brief extension, contemporaneous conversation with Mister Tully. But that was in terms of the generality of people who were bullied in the workplace suiciding. And it's got nothing to do with me. It's got to do with watching kiddies on tv, being interviewed and so forth.
(3) as to whether there was conversation about his family situation (Tcpt, 4 April 2024, pp 114-115):
"M Moir
Thank you. Senior member. Do you agree that when the topic of suicide was discussed during your meeting with Mister Tully, that you told Mister Tully some details about your family's situation?
T Schwedler
No. I'm aware that Mister Tully has some knowledge about my family's situation from prison.
M Moir
I'm not asking about what your awareness of his knowledge is. I'm asking you that when this topic was discussed during the meeting, do you.
T Schwedler
Recall that you told me adamantly deny that?
M Moir
Do you recall that you told Mister Tully that you were separated from your wife during the meeting?
T Schwedler
Would not fit into the context. I would never say that.
M Moir
Do you recall telling Mister Tully that you have had recent contact with your brother in order for him to check in on you?
T Schwedler
Well, that's not true, so I would never have said that. Right.
M Moir
Well, do you recall telling Mister Tully that you were separated from your wife, but you'd had contact from your brother so that a family member could check in on you given that you were separated?
T Schwedler
Look, that is false information provided by Mister Talley."
(4) as to whether he was able to return to clinical duties (Tcpt, 4 April 2024, pp 114-115):
"M Moir
Do you recall him discussing with you about whether you were able to go back and perform your clinical duties?
T Schwedler
I think you also need to remove the word able. Are you going back to performing duties? I think it would have been a neutral ending of the what.
M Moir
Do you recall that he asked you?
T Schwedler
Well, the meeting finished. I gave him the papers and so forth, and very abruptly we just went our way."
(5) as to the 14 May 2023 Schwedler response at pp 6-7 (Tcpt, 4 April 2024, p 123):
"M Moir
Okay. So you then see down the next section headed re Mister Schwedler said that any staff member would be dead having to endure this process without resolution. You then say, I made a brief, extemporaneous comment about suicidality, but not on these terms. Do you see that? Do you agree that you were the one who brought up that discussion?
T Schwedler
Look, I think my discussion in regards to suicidality was in response to something initiated by Mister Tully. But my discussion would have been in terms of generality. And that doesn't have any significance for me as being a possible candidate for suicide. So if Mister Tully initiated conversation, I would deflect that as being an issue for me. But I would have no need or inclination to talk about suicidality."
(6) as to the 7 December 2022 Ryan note (Tcpt, 6 May 2024, pp 10-11):
"M Moir
And do you recall that Miss Sheather told you that what had been reported to her by Mr Tully was that during the PDR meeting you had stated words to the effect that suicide was an option? Do you recall Miss Sheather saying that to you at the outset of the meeting?
T Schwedler
Look, there's this.
M Moir
No, no, just concentrate on.
T Schwedler
There is a disparity here in the wording here, okay? It's Mister Tully claims I said suicide is an option. Okay? Not one.
M Tibbey
I'm sorry, I'm sorry. The witness is responding, so we just let the witness respond. Thank you.
T Schwedler
It's about suicide is an option. Okay. That seems to be a common error in this statement Mister Tully has consistently said suicide is an option. Okay.
M Moir
Do you recall Miss Sheather.
M Tibbey
So Mister Tully said that you said suicide is an option. That's what he seems to be claiming.
T Schwedler
That's right In his statements, in the documents. Okay, there's suicide is an option. Okay.
M Tibbey
Okay. So did you say that?
T Schwedler
Never."
"G Schwedler
Oh, I'm sorry. Did you disclose in the PDR meeting any personal suicidal ideation?
T Schwedler
No.
G Schwedler
Did you make the comment that suicide is an option?
T Schwedler
I would never say something like that.
G Schwedler
Did you make any comments about feeling suicidal?
T Schwedler
No."
"20. From 11:00am to approximately 11:35am on7 December 2022, 1 met With the Applicant where I was unable to discuss the Applicant's PDR as the Applicant used this time to speak to the complaint document about Ms Beeson which he presented to me without prior notice. The Applicant also spoke to past grievances from 2016 and during the meeting said "suicide is an option" and that any other staff member "would be dead" having to endure this process without resolution.
21. At my meeting with the Applicant closing at about 11:35am, I indicated that I would review these matters and escalate as appropriate.
22. At about 11:59am on 7 December 2022, 1 phoned Ms Sheather and relayed my concerns about the Applicant appearing quite distressed in this meeting, that I was not able to discuss his performance review and that the Applicant had said words to the effect that "suicide is an option" and that any other staff member "would be dead" having to endure this process without resolution. I also indicated that the Applicant supplied substantial documents to me at this meeting."
"27. The only other contact I had with the Applicant following our meeting on 7 December 2022, was when I phoned the Applicant on 14 December 2022 to conduct a welfare check as requested by Ms Sheather and Ms Ryan Attached and marked "ST-i" is a copy of my email to Ms Sheather and Ms Ryan on 14 December 2022 advising of the outcome of this welfare check.
28. I have not had contact with the Applicant since 14 December 2022.
(1) as to when Mr Schwedler made the alleged statement about suicide (Tcpt, 6 May 2024, pp 68-71):
"G Schwedler
Read out the documents to you; Now there's 38 pages here. How far did he get?
S Tully
I can't recall exactly, but I think the majority of it, or most of it.
...
G Schwedler
So at what point in the performance development review did he make this alleged comment?
S Tully
Well, the meeting was from eleven to 1135. It would have been approximately 1120. 1125.
G Schwedler
In the context of what, please?
S Tully
In the context of the distress that he felt within the workplace, the sheer volume of matters, the difficulties working within the team. But the rest of the context, I can't recall right now.
...
M Tibbey
All right But it seems as though, as far as this witness recalls, it was somewhere around this when it got to that point that this witness says there was some reference to suicidality. Is that your evidence, Mister Tully?
(S Tully)
Yes."
(2) as to when Mr Schwedler made the alleged statement about suicide (Tcpt, 6 May 2024, pp 82-83):
"G Schwedler
Okay, so I'm wanting to ask you then, at this exact juncture in the PDR, your testimony is that the applicant said that he had suicidal ideation on.
S Tully
The meeting on the 7 December 2022. That's correct. So the applicant said those words. Was the effect that he was saying also?
M Tibbey
What words do you say?
S Tully
He said, well, that suicide was an option.
G Schwedler
Was an option, or is an option.
S Tully
Like was an option or sorry is an option? I think so suicide was mentioned whether it was it or was. But the final word was option, as if to infer that there were feelings of suicide or, you know, thoughts of suicide.
G Schwedler
And in what context is this alleged comment made?
S Tully
That was, as I previously mentioned, that was the tail end of the performance review meeting. So approximately 1120, 1125 on the 7 December 2022."
(3) as to par 6 of the 7 December 2022 at 4:47 PM Tully email (Tcpt, 6 May 2024, pp 96 97):
"G Schwedler
All right. Okay, mister Tully, we're going to continue. I'm going to take you to the email that you send at 102. And I have this at page 739. It.
G Schwedler
Thank you. Okay. Yeah, yeah. So on 738 at. .6 you say t's explained his family situation, including separation from his wife, recent contact with his brother to check in on him.
G Schwedler
I'd like to ask you what was the context of raising these personal comments?
M Moir
I'm sorry, is that the context during the PDR meeting?
G Schwedler
Yeah. Why? It's included in this email.
S Tully
I think it was born out of concern that the applicant, Mister Schwedler, would raise personal and family matters at the performance review. That those were noted, you know, without any prompting that That Mister Schwedler would raise those family and personal matters at the performance review. So I felt it relevant at the time to include that. And as mentioned, they were not questions that were probed by me or prompted at the performance review.
S Tully
There was no. As I previously mentioned, there was no assessment of any kind of me asking those questions. But they were raised by Mister Schwedler that he had recently separated and his brother had been contacting him, which I felt was of concern and of relevance.
G Schwedler
So you stand by these comments, do you, that the applicant said these things? Yes.
S Tully
Yes. Mister Schwedler stated that."
(4) as to the Tully statement at [22] (Tcpt, 6 May 2024, pp 101 102):
"G Schwedler
Okay, well, okay. So in terms of your reporting to senior management, you are aware of the importance of the accuracy of your reporting.
S Tully
Yes, in all facets of my report.
G Schwedler
All right. Okay. So you said that the applicant disclosed that suicide is an option, and you said it was in relation to himself. Correct? I'm reiterating.
S Tully
That's correct.
G Schwedler
Correct. You also have said in your state statements that another clinician subjected to. Subjected. Sorry, the whole statement subjected to this could be dead.
S Tully
Yes, that's correct.
G Schwedler
Correct. In your file note, you link those two statements together. So were those two statements said one after the other?
S Tully
Yes. They were said at the same. Within the same period of time. So suicide was an option, was the first bit. And then that any clinician or any other clinician would be dead was said at around the same time as well.
G Schwedler
In relation to what?
S Tully
So in relation to the number of matters that were being raised, including the complaint letter and.
G Schwedler
Okay. I'd like you to have a look at page 588. It's point 22. You phone Ms. (Sheather) and relay concerns about the applicant appearing quite distressed.
G Schwedler
Quite distressed. And that you were not able to discuss his performance review and that the applicant had said words to the effect of suicide is an option and that any other member, staff member, would be dead, having to endure this process without resolution. Do you stand by this?
S Tully
That's my statement of claim."
(5) as to whether he was not listening attentively and misheard what Mr Schwedler said (Tcpt, 6 May 2024, p 105):
"G Schwedler
That you weren't listening for the whole of those 38 pages. What do you say to that? It's possible that you were not listening.
S Tully
I was listening attentively throughout the performance.
G Schwedler
Okay. I put it to you that you didn't. You misheard.
S Tully
No.
G Schwedler
I put it to you that the evidence that we are going to present or we have presented does not support this assertion that the applicant was suicidal or expressing suicidal ideation.
S Tully
Again, I refute that. No."
(6) as to the Tully statement at [20] (Tcpt, 6 May 2024, pp 106-110):
"S Tully
Again, I refer to point 20 in my statement of claim that any other staff member would be dead.
G Schwedler
Yep. Okay. Well, I'd like to suggest to you that he's more than likely said something along the lines of another clinician subjected to this sort of rostering which put him in jeopardy, could have ended up dead. What do you say to that? Is that possible?
S Tully
Possibly he may have said that, but I can't recall the words that he used prior to making that statement.
...
G Schwedler
And I'm not suggesting to you that the applicant mentioned that in the PDR. I'm saying that his comment about people subjected to whatever reckless type of rostering could end up dead. Could end up dead.
M Tibbey
Is it possible that that's what his comment referred to? Not in relation to his, but just that in general, reckless rostering could lead to a clinician to end up dead?
S Tully
I don't recall there was any context to either the incident or rostering, best rostering practices prior to that comment being made. So again, I stand by my comment and as per my statement of claim."
(7) as to the distress of Mr Schwedler (Tcpt, 6 May 2024, p 114):
"M Tibbey
Then why don't you just ask that? So this is the way you would do it. So you would say or a way you could do it? You could do it many ways, but. So firstly, do you stand by saying that this was the most distressed you'd seen him as far as you now recall?
S Tully
It was a high level of distress."
(8) as to the lack of corroboration as to what Mr Schwedler said (Tcpt, 6 May 2024, pp 131-132):
"G Schwedler
Okay. Your judgment, your assessment or your judgment of the applicant? You are the only one that raised comments of suicidal ideation about the applicant Would you accept that?
S Tully
That Mister Schwedler said suicide is an option, that I escalated.
G Schwedler
Right. In the events that followed, there was a referral to a doctor, there were police checks, et cetera, et cetera. I don't want to go on to all that now. It'll take up too long. You are aware that no one else validated your assessment.
...
M Tibbey
Corroboration is not the issue. Really? But I allow a question. It seems nobody else agreed with you. Is that what you want to put?
G Schwedler
Yes.
M Tibbey
Okay. And so in light of that, do you stand by what you said?
G Schwedler
Thank you, ma'am.
M Tibbey
All right, so consider that question asked then.
S Tully
Yes, I stand by my comments made on the 7 December."
(9) as to the Tully statement at [28] (Tcpt, 6 May 2024, p 133):
"G Schwedler
Okay. Well, the applicant informed me, and I think it's within his statement that you gave him a research project whilst he was at Croydon after the 14 December.
S Tully
It was a project on community treatment orders that was led by the. Because it was Kath Ryan at the time who was overseeing that around.
G Schwedler
There was contact after that, the 14th.
S Tully
Of maybe an email or two. Yeah. But not in relation to this matter.
G Schwedler
What was it? Not face to face contact?
S Tully
I don't recall. There may have been a face to face contact, but I don't recall whether there was or not."
(1) as to the Tully statement at [28] (Tcpt, 6 May 2024, p 135):
"M Moir
Very briefly, if! could just ask you about paragraph 28 of your statement, Mister Tully. Where you say there you've not had contact since the 14 December 2022. Are you referring generally or just in relation to this matter? That is the matter that you escalated.
S Tully
To your managers in relation to this matter of the 7 December, there's been no further contact or continuation with Mister Schwedler or any other parties beyond that point.
M Moir
Otherwise you still have contact with him in the workplace?
S Tully
I mean, I'd send out general email communication to all staff. So there's that. There's other encounters."
(2) as to the distress of Mr Schwedler (Tcpt, 6 May 2024, p 135):
"M Moir
And at numerous points during your evidence today, you referred to what you describe as the level of distress. You made observations during the meeting on 7 December that, to use your words, Mister Schweidler was distressed or quite distressed. Can you tell the tribunal what did you observe in relation to Mister Schweidler's demeanor or mode of speech or any other such things that led you to form a view that he was quite distressed?
S Tully
So I think first and foremost, probably the general demeanor in which it was presented and the.
M Tibbey
Or what Tell us how he was.
S Tully
I think it was quite, as I previously said, fixated on the issues. So the correspondence that was provided, I think, with reference to making reference to the family, his brother, separation, some of those issues as well, led me to believe that this was an all consuming matter and that it had taken its toll outside of work as much as it has inside of work. Much of the content of what Mister Schwedler was saying was extremely negative. He made comments about how poor the process was, about the performance review process, which, you know, I don't have any say in. I mean, this is a New South Wales health matter and was very complaints driven and quite hostile and angry, I think, was the general sense that I got from Mister (Schwedler)."
"22. On 7 December 2022, at approximately 11:59am, I received a phone call from Mr Simon Tully, Mental Health Senior Social Worker of SLHD. Mr Tully informed me words to the effect that:
a) He had a meeting with the Applicant at 11:00am which was scheduled for the Applicant's PDR (performance development review) however the Applicant's PDR was not discussed as the Applicant used this meeting to speak to his complaint about his line manager, Donna Beeson and the documents he supplied to Mr Tully;
b) During this meeting:
i. the Applicant was quite distressed and said words to the effect of suicide is an option and how any other staff member who had endured this would be dead;
ii. the Applicant spoke about his brother recently contacting him to check on him and his separation from' his wife;
iii. he asked the Applicant if he felt safe to return to the workplace after this meeting and the Applicant shrugged his shoulders and said I've worked here for over 20 years."
(1) in the 14 May 2023 Schwedler response: "I made a brief extemporaneous comment about suicidality ... I understand that people with lesser experience and of a younger age may succumb in such a way";
(2) the 8 January 2024 Schwedler statement at [44]-[45]: "My comment was about my professional clinical understanding of the failure to address bullying in the community. My comment was not at all related to myself. I have numerous protective factors. My attitude to employment is strictly professional, without extraneous emotion.";
(3) the 11 March 2024 Schwedler response at p 4: "The Applicant made the comment that he could understand why some people would consider suicide as a means of escaping persecution from a bully. This brief spoken comment was an allusion to what is the expert and learned clinical understanding of the Applicant regarding failures to properly address bullying in the broader community.";
(4) his oral evidence (Tcpt, 4 April 2024, p 112): "But that was in terms of the generality of people who were bullied in the workplace suiciding. And it's got nothing to do with me. It's got to do with watching kiddies on tv, being interviewed and so forth."
General finding with respect to grounds of appeal 1 and 2, 5 to 8 and 10
(1) none of these grounds of appeal raise an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable within the principles in Smith at [28];
(2) none of the reasons set out in the notice of appeal warrant the granting of leave to appeal. The asserted absence of a policy to protect employees against discrimination does not mean that Sydney LHD unlawfully discriminated against Mr Schwedler on the ground of disability;
(3) the alleged discrimination against him since 2016 was not justiciable as it did not fall within the complaint period.
(1) The application of the appellant under s 103 of the Anti-Discrimination Act 1977 (NSW) to amend the complaint to include age discrimination under s 49ZYB of the Act against him by the respondent in the appeal is dismissed.
(2) The application of the appellant for further evidence to be received in the appeal is dismissed.
(3) The appeal is dismissed.
(4) Leave to appeal is refused.
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.
Schwedler
Secretary, Department of Health [2026] NSWCATAP 21;
(1990) 170 CLR 321
(1991) 173 CLR 33
(2015) 233 FCR 315
(2024) 280 CLR 321
(2011) 244 CLR 427
(2001) 205 CLR 507
(2019) 100 NSWLR 578
(2017) 95 NSWLR 597
(1998) 84 FCR 87
(1997) 81 FCR 71
(1997) 149 ALR 281
..."
[74] In cross examination the applicant denied saying words to the effect of:
"Any other staff member may be dead, they would/may have killed themselves."
[75] Counsel put to the applicant that:
"You told Mr Tully that you could see why people could suicide if bullied for an extended period".
[76] His response was:
"Yes. It is a social fact that suicide occurs. It doesn't apply to me".
[77] Other cross examination and re-examination was to the same effect."
(iv) it referred to the 12 December 2022 initial review, the 23 December 2022 risk assessment and the 28 December 2022 Jiang letter ([78]-[82]);
(h) undertook consideration of the evidence ([87]-[120]). In particular:
(i) it stated the question it had to decide ([87]):
"[87] The Tribunal needs to consider whether, on the balance of probabilities, the applicant was treated less favourably than others in similar circumstances due to his disability, in this case, a known mental illness that was usually well managed and had been well managed for many years."
(ii) it made findings as to the conversation between Mr Schwedler and Mr Tully in the PDR meeting ([89]-[91]):
"[89] The Tribunal has considered the evidence submitted on behalf of both parties, both written and oral.
[90] The applicant contends that he did not say the precise words noted by Mr Tully and says that the context was really to emphasise his grievances about past conduct within the workplace. On the other hand, in cross examination he admits that he did say words to similar effect, although he says he did not intend to talk about suicide with reference to himself.
[91] The Tribunal prefers the evidence of Mr Tully as to what was said during the PDR meeting because it was followed up fairly promptly by a telephone call to Ms Sheather, then a call to Ms Beeson and then with an email, at the request of Ms Sheather. That is some corroboration of what was said, given its proximity in time to the PDR meeting. After the telephone calls, the file note was sent by Mr Tully to Ms Sheather fairly soon after the PDR meeting. The telephone calls and email are consistent with a manager being concerned as to whether there was a risk of suicidality and whether or not a clinician was fit to undertake his usual clinical duties."
(iii) it accepted that in addition to the reference to suicide and that any other staff member "would be dead", the fixedness of Mr Schwedler on past events indicated by the documents he brought to the PDR meeting and his apparent distress could reasonably have led to Mr Tully's concerns as to his mental health ([92]-[95], [102]):
"[102] We find that on their face, as reported by Mr Tully fairly soon after the PDR meeting, the words 'suicide is a possibility' and that any other staff member 'would be dead' with such matters being unresolved, reasonably indicated to a person with managerial responsibility for the health and safety of employees and the public who may interact with employees, that it was possible that the life or health of an employee could be at risk. These words by the applicant were coupled with the applicant reading from voluminous documents that canvassed events in the workplace back to 2016. We accept Mr Tully's evidence that Mr Schwedler appeared to be somewhat distressed in recounting those events during his assessment. He was dealing with matters of great moment to him, concerning perceived injustices to him in the past."
(iv) it made a finding there is no persuasive evidence supporting the drawing of an inference that there was disability discrimination in the events of 7 December 2022 to 2 January 2023 ([112]);
(v) it made findings as to the events of 7 December 2022 to 2 January 2023 ([113]-[115]):
"[113] The more plausible and probable reason for the events between those periods which is available on the evidence, is that during the PDR, the applicant:
(a) said things that could reasonably be regarded as alarming to a manager in the situation of Mr Tully,
(b) relied on copious notes outlining events that went back to 2016, well beyond the period of the annual review and
(c) appeared quite distressed during the PDR.
[114] We find that these aspects of the applicant's conduct reasonably gave rise to apprehensions by his manager, which were managed according to departmental policy.
[115] We are not satisfied that the steps taken by Mr Tully or by other officers of the Department were discriminatory. The actions taken by the respondent appear to have constituted reasonable managerial action that flowed from the behaviour of the applicant, in making the alarming statements he did, reading from the voluminous documents which went well beyond the period of the annual review and his appearing quite distressed during the interview."
(vi) it set out its conclusion ([119]-[120]):
"[119] We are not satisfied that the applicant has proven his case on the balance of probabilities. We find that a person who had a different disability, or who exhibited the same conduct as that of the applicant in the workplace but did not have a disability would, on the balance of probabilities, have been treated in the same way that the applicant was treated, and therefore disability discrimination has not been proven (Purvis v New South Wales (2003) HCA 62; 217 CLR 92).
[120] The application is therefore dismissed."
(i) made provision for any application for costs by the parties ([121]).
5. The Appellant is employed in a workplace where discrimination is accepted as good professional practice. For the Respondent to prove that discrimination has not occurred, a higher standard of proof applies than that required of a general workplace. The Tribunal had no adequate understanding of workplace protocols in its decision-making. Discrimination towards the Appellant existed as an excess, put into effect as a taken for granted "good" workplace behaviour. The Tribunal clearly engaged in a generic evaluation of discrimination with its decision-making.
6. The Period of Claim is from 7 December 2022 to 2 January 2023. Background information had been provided in the Points of Claim that issues of discrimination go back to 1990. A marked increase in the severity of discrimination occurred since 2016, culminating in an extreme set of events during the Period of Claim. The career of the Appellant was effectively terminated. As NCAT is a mandatory reporter for corrupt behaviour, due diligence should have been maintained by the Tribunal to protect its integrity in preserving a necessary autonomy in decision- making about malfeasance rather than accept the submission of the Respondent.
7. Protections were available for the Appellant to prevent sustained discrimination unfolding during the Period of Claim. The Respondent did not adhere to the limitations placed upon policy implementation. Within its decisions the Tribunal has not understood substantial specific obligations placed upon the Respondent not to engage in discriminatory behaviour. The Respondent endorsed a Wellness Plan as a condition of the employment of the Appellant, and it was jointly drafted and worded to mitigate against the abuse of the ordinary rights of the Appellant (CB 231, 247). The Wellness Plan is to be reviewed annually at the Performance Development Review (PDR) meeting. The Line Manager of the Appellant refused to participate in the PDR meeting on 7 December 2022. Documents to update the Wellness Plan were generated during the meeting but were ignored during the entire Period of Claim.
8. The Tribunal has not maintained its autonomy in determining whether perjury has occurred during the hearing and within the documents provided for the hearing.
9. The critical thinking put into effect by the Tribunal was inadequate, as is evident in the wording and in the illogical reasoning of specific details of the order.
10. There is a preponderance of evidence in favour of the Appellant that the Respondent engaged in discriminatory behaviour towards him during the full Period of Claim, with this discrimination still continuing into 2025."
The discrimination exhibited towards the Appellant extends all the way to executive management, with discrimination as a normal part of how managers interact with one another. The discrimination towards the Appellant is pervasive and entrenched. The Appellant has a record since 2016 of bringing to the attention of management his concerns about unethical behaviour in the workplace, but these concerns have been continually dismissed as mental health pathology exhibited as fixations behaviour. (CB 25, 26)"
(3) to the extent necessary, we have decided whether leave to appeal should be granted, and if so decided the ground. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the decision was arguably wrong: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 (Smith) at [28] (Gleeson JA with Macfarlan JA at [1] and Payne JA at [67] agreeing). Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice: Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9] (Basten JA with White JA at [18] agreeing); cited with approval together with another authority in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [42]- [43];
(4) we have conducted the appeal as a rehearing on the materials before the Tribunal and any additional or further evidence received to determine whether the orders that are the subject of the appeal are the result of some legal, factual or discretionary error: Yuen v Thom [2016] NSWCATAP 243 at [14]- [22].
[26] Actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs [1997] FCA 1022; (1997) 149 ALR 281 at 289-290 (per Finkelstein J).
[27] In Jia Legeng, Hayne J noted that bias may be occasioned by an interest in the outcome, by affection or enmity, or by prejudgment: at [183]. His Honour set out several distinct elements underlying the assertion that a judge has prejudged or will prejudge an issue on the basis of an opinion they hold (at [185]):
(1) First, there is a contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.
(2) Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue.
(3) Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.
[28] His Honour observed, at [186], that allegations of actual bias through prejudgment often fail at the third step. This is because, notwithstanding whatever preconceived opinions are held or even expressed by the decision-maker, it does not follow that the evidence will be disregarded.
[29] These principles would equally apply to a decision-maker in the Tribunal."
(d) the expression "common ground" in [25] and [26] is appropriate as it refers to matters which Mr Schwedler was required to prove to establish the discrimination complaint and were conceded by Sydney LHD. The expression is not used in [44] and [45].
The Applicant contends that Mr Tully has overlooked the need for fixed language being used in a legal context to ensure that his stated observations are clear-cut, recounting actual statements made, reporting consistently with definite and unequivocal precision.
The Applicant contends the words "suicide is an option" is a reported comment in effect created by Mr Tully for discriminatory purposes, contravening S49D(2) of the Act.
Point 28: I have not had contact with the Applicant since 14 December 2022.
This claim is false. Mr Tully had face-to-face contact with the Applicant in the early months of 2023 while the Applicant was redeployed to Croydon Health Centre. Mr Tully provided the Applicant with a research project on Section 72 of the Mental Health Act 2007 which occupied the Applicant for a brief period of time."
T Schwedler
And they're in tears because they're being bullied in the workplace and parents being distraught about the death of their child. It's a generality of bullying the issue in terms of suicide, but certainly not in terms of me. There's no way in the world that a suicide over work related matters. Okay?
M Tibbey
So I just would like to intervene. Mister Noissa.
T Schwedler
Yes.
M Tibbey
So you say. Yes, there was a brief. In a brief conversation about suicide, I engaged in some conversation re suicide. I remember a brief conversation. So as far as you now remember, what?
M Tibbey
How did that flow? What was. What did you say? What did he say?
T Schwedler
Well, look, there's nothing that I would have said to him about me doing.
M Tibbey
I know. I'm asking you as far as. Yes? Who said what?
T Schwedler
Well, there was some conversation about suicide. It may have been initiated by him, but it's not. He didn't I don't think it was all that specific, but I would not have engaged in conversation beyond generalities. My whole employment is to prevent suicide.
T Schwedler
Right. I don't know exactly how the conversation proceeded. Right But suicide is an issue that we talk about in the workplace all the time.
M Tibbey
So you don't remember now much about it except that it may have been him initiated.
T Schwedler
It may have been you. To be honest, I did not think that we would end up in this situation. So I was not motivated to. To write copious notes of a mental state examination of exactly what happened on that occasion. Just an hour later, I tapped on the shoulder, interviewed in depth.
T Schwedler
And I just assumed that things might work in my favor or some neutrality. At least at the minimum.
M Tibbey
So is there anything more that you remember about what that conversation about suicide consisted of?
T Schwedler
Well, as I said, it's just in terms of the generalities of the images. I had my head of school children in tears on tv, that sort of stuff. You know, the general media attitude towards bullying and it's more prevalent for adolescents. Right. It's certainly not a way out or way of solving anything.
T Schwedler
Makes things worse."