Tasmanian Civil and Administrative Tribunal Rules 2021, r 15.

Cain v Australian Red Cross Society [2009] TASADT 3;

Shayne Arkley v CatholicCare Tasmania and Andrea Witt [2017] TASADT 3;

Lucy Orchard v Frayne Higgins [2020] TASADT 11;

Durstan v Anti-Discrimination Tribunal (No.2) [2018] TASSC 48.

1. On 22 July 2025, the complainant made a complaint to the Anti-Discrimination Commissioner (the ADC) arising out of his employment with the respondent.
2. In an assessment decision and reasons for decision dated 10 September 2025, the complainant's complaint was rejected by the ADC pursuant to s 64(1)(b) if the Anti-Discrimination Act 1998 (the ADA) because it did not relate to discrimination or prohibited conduct.
3. On 4 October 2025, the complainant made email contact with the Tribunal indicating he wished to seek the review of the ADC's decision to reject his complaint which he had received on 10 September 2025.
4. After further contact with the Tribunal registry, via email on 15 October 2025 the complainant provided the Tribunal with his completed general review form seeking the review of the ADC's decision to reject his complaint.
5. For the reasons which follow, I am satisfied that the ADC made the correct decision in rejecting the complainant's complaint and therefore that pursuant to s 72(1) of the ADA, his complaint lapses.

1. Pursuant to s 65(3) of the ADA, an application to review the rejection of a complaint must:

(a) Be in writing; and

(b) Be made within 28 days after the receipt of the notification of the statement of the reasons for the rejection of the complaint.

1. Although the complainant made email contact with the Tribunal on 4 October 2025 seeking the review of the rejection of his complaint, this being within the 28 day period prescribed in s 65(3)(b) of the ADA, he did not complete and provide the prescribed general review form to the Tribunal until 15 October 2025. This was 35 days from 10 September 2025 when he received the reasons for the rejection of his complaint, and therefore was not compliant with s 65(3)(b) of the ADA.
2. Rule 15 of the Tasmanian Civil and Administrative Tribunal Rules 2021 (the Tribunal Rules) provides as follows:

15. Form of documents if no approved form > > (1) If there is no approved form for a document to be used in proceedings, a person or body may use a form of the person's or body's own devising, but only if it contains the information required by a registrar. > > (2) The Tribunal or a registrar may, if the Tribunal or registrar considers it appropriate to do so, accept any application or other document for lodgement with the Tribunal even though the document is not in accordance with the approved form or the form required under the relevant Act, as the case may be. > > (3) Before accepting a document under subrule (2), the Tribunal or a registrar may require the person or body on whose behalf the document is being lodged, to give the Tribunal or registrar the further information as the Tribunal or registrar requires, within the period specified by the Tribunal or registrar. > > (4) A document accepted by the Tribunal or a registrar under subrule (2) is taken to be duly lodged.

3. Although the complainant did not complete his general review form being a prescribed form for a document to be used in proceedings in the Tribunal within the 28 days period prescribed by s 65(3)(b) of the ADA, I am satisfied from a review of Tribunal file that the complainant has complied with r 15(2) of the Tribunal Rules, and that even though his email of 4 October 2025 was not in accordance with the approved form, it has been accepted as an application for the review of the rejection of his complaint which is thus compliant with the provisions of s 65 of the ADA.
4. I therefore determine that I have jurisdiction to deal with this referral for the review of the rejection of the complainant's complaint.

1. Pursuant to s 64(2) of the ADA, the ADC is to decide whether to accept or reject a complaint within 42 days after its receipt.
2. It is clear that this did not occur in this case, noting that the complainant's complaint was made on 22 July 2025 but it was not rejected by the ADC until 10 September 2025.
3. Following the reasoning of Tribunal Member Brett (as he then was) in his unreported Anti-Discrimination Tribunal decision of 15 August 2007 at [10]-[12], I am satisfied that the ADC not making its decision to reject the complainant's complaint within this 42 day time limit does not make the decision of the ADC of 10 September 2025 invalid.

1. Subsequent to receipt of the complainant's application for the review of the rejection of his complaint, an initial telephone conference was conducted with the complainant on 7 November 2025.
2. In this teleconference, the complainant was given time to provide any further information upon which he sought to rely to progress his application to review the rejection of his complaint.
3. On 14 November 2025, the complainant provided further documentation to the Tribunal upon which he sought to rely.
4. In accordance with usual Tribunal processes, subsequent to the receipt of the complainant's application for the review of the rejection of his complaint, the named respondent was contacted in an effort to ascertain whether or not they wished to participate in the review process before the Tribunal.
5. At a directions conference conducted before me on 2 March 2026, a representative of the respondent indicated that they may wish to participate in the review of the rejection of the complainant's complaint process, but wished to give consideration to material filed by the complainant before a final decision was made in that regard.
6. With the consent of the complainant, directions were made to accommodate this request from the respondent.
7. On the afternoon of 13 March 2026, the respondent advised the Tribunal that they did not wish to be involved in the review of the decision to reject the complainant's complaint and would not be providing any material in response thereto.
8. The complainant's attitude to me determining this review on the papers was sought on 20 March 2026. On 26 March 2026, the complainant confirmed via email that he was content for me to determine the review of the rejection of his complaint on the material before the Tribunal.

1. In its decision to reject the complainant's complaint, the ADC noted that the complainant's complaint involved allegations of him being unfairly dismissed from the respondent, that he was unfairly targeted by the staff and made to do tasks outside his role because others were not contributing, that he raised concerns about errors by other staff and potential elder abuse and that he was assaulted by a colleague resulting in his termination of employment during his probation period.
2. The ADC noted that the complaint did not identify any specific breach of the ADA and found that it was not satisfied any nexus or link between the conduct alleged against the respondent and any prescribed attribute the complainant had. According to the ADC the complaint did not disclose direct or indirect discrimination (s 14 and s 15), nor prohibited conduct (s 17(1)) on the basis of a prescribed attribute (s 16).
3. The ADC also found that although victimisation pursuant to s 18 of the ADA did not require a nexus or link with a prescribed attribute, on the material before the ADC the complainant's complaint that after receiving a letter from the respondent on 5 February 2025 notifying him of his termination of employment and, after sending messages to the respondent stating that he will "go to the Anti-Discrimination Commissioner", and instructing people to "give his explanation to the Commissioner", may be considered as a complainant expressing an intention to make a complaint pursuant to s 18(1)(a) of the ADA, this conduct occurred after the respondent had allegedly engaged in the conduct that was the subject of the complainant's complaint.
4. The ADC found that it can therefore not be considered that the respondent's alleged conduct was because of the complainant expressing an intention to make a complaint under the ADA.
5. The ADC also found that there was no evidence before the ADC to show that the complainant had been subjected to a detriment because he engaged in any of the conduct referred to in s 18(1)(a)-(e) of the ADA.
6. The ADC also found that the complaint did not disclose any other possible breaches of the ADA.

1. To establish direct discrimination under the ADA, the complainant must establish he was treated less favourably on the basis of a prescribed attribute than a person without the prescribed attribute. The complainant must establish that his prescribed attribute is a true and genuine reason for the alleged treatment.
2. Indirect discrimination as defined in s 15 of the ADA, takes place when a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who share an attribute more than others.
3. The ADC referenced the Anti-Discrimination Tribunal's decision in Cain v Australian Red Cross Society [2009] TASADT 3 when dealing with direct and indirect discrimination. The ADC correctly stated the law.
4. The ADC also noted that to establish offensive, humiliating, intimidating, insulting, or ridiculing conduct he must establish:

(a) He was offended, humiliated, intimidated, insulted or ridiculed by the conduct on the basis of an attributed referred to in s 17(1) of the ADA; and

(b) A reasonable person in all the circumstances would have anticipated that the complainant would have felt offended, humiliated, intimidated, insulted or ridiculed.

1. The law in relation to s 17 of the ADA was authoritatively stated by Justice Brett in Durstan v Anti-Discrimination Tribunal (No.2) [2018] TASSC 48 at [63] where his Honour stated:

Section 17(1) is also a provision which prohibits conduct. By its terms, it is apparent that the provision has an extremely wide ambit of operation. Some aspects of this are as follows:

(a) The scope of conduct is unlimited. It encompasses "any conduct", which falls within the description contained in this section. However, the section will almost always be concerned with conduct that involves communication in one form or another. It follows that the section has the capacity to burden the implied freedom of restricting communications in a wide variety of circumstances.

(b) Read literally, the words "offends, humiliates, intimidates, insults or ridicules", are vague terms which have the potential to encompass a broad range of subjective emotions and feelings. The emotional response will vary from one person to another. However, judicial interpretation of the words "offend, insult, humiliate or intimidate", in respect of similar, but not identical provisions under s 18C of the Racial Discrimination Act 1975 (Commonwealth) suggest that the operation of the section is more restricted than the literal meaning of the words would suggest. In Eatock v Bolt [2011] FCA 1103, 197 FCR 261 Bromberg J endorsed judicial statements which require the conduct caught by s 18C to have "profound and serious effects and not to be likened to mere slights." Creek v. Carins Post Pty Ltd [2011] FCA 1107, 120 FCR 243 at [16] [Kiefel J]: Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 at [70] (French J as he then was), Jones v Scully [2002] FCA 1080, 2002 (120 FCR 243 at 102 Healy J.)

1. Thus, applying the principles enunciated in Durstan (supra), as the operation of s 17 is more restricted than its literal meaning of the words set out therein, this requires the complaint of conduct to have profound and serious effects and not to be likened to mere slights.
2. On all of the materials both before the ADC and provided by the complainant to the Tribunal, I too am unable to ascertain any nexus or link between the complainant's prescribed attributes and the conduct he complains of.
3. In its decision, the ADC referenced the decision of Chairperson Webster (as he then was) in Shayne Arkley v CatholicCare Tasmania and Andrea Witt [2017] TASADT 3 where it was stated:

Mr Arkley in order to defeat an application for summary dismissal needs to have sufficient material by way of evidence which establishes a sufficient nexus or link between the respondent's behaviour and Mr Arkley's attribute, namely age. Although Mr Arkley holds a belief (see the passage at paragraph 28) there is a nexus between his treatment at the hands of the respondents and his age, there is no evidence which directly supports that link or from which the nexus can be inferred. Accordingly the ADC was correct in dismissing the complaint. [39] and [41]-[42] and [45]

4. The complainant has simply provided no evidence of the nexus or link between the conduct of the respondent or any of the attributes set out in s 16 of the ADA. He merely holds the belief that this is so. This is not enough to establish there has been a breach of the ADA.
5. With regard to victimisation contrary to s 18 of the ADA, the ADC correctly stated that victimisation does not require a nexus or link with a prescribed attribute.
6. As was stated by Tribunal Member Cuthbertson (as she then was) in Lucy Orchard v Frayne Higgins [2020] TASADT 11 at [277]:

In order to establish a victimisation has occurred, a complainant must show that any actual or threatened detriment experienced by them, or an associate of theirs, was because of one of more of the matters referred to in s 18(1) of the Act. These matters are commonly referred to a "protected conduct". If such victimisation is as a result of some other matter, it is not prohibited by s 18 of the Act - Von Stalheim v Anti-Discrimination Tribunal and Attorney-General of the State of Tasmania [2007] TASSC 9, Evans J at [15].

7. The circumstances of the complainant's allegations of victimisation arise out of his allegation that on 11 January 2025 he was contacted by a representative of the respondent regarding what he said were incidents of bullying and harassment by a group of carers. The complainant alleges that on 4 February 2025, he again contacted the respondent's representative regarding physical altercation with a chef.
8. The ADC found that even though the complainant contacted his superior regarding his concerns, something more than stating someone has engaged in conduct is required before it is open to find that it amounts to protected conduct. The ADC stated that unless the allegation asserts some connection between the act complained of, and a contravention of the ADA, s 18 is not enlivened.
9. I agree with the ADC's comments that although the complainant's dealings with the respondent after he received his termination of probation letter dated 5 February 2025 may have amounted to him expressing an intention to make a complaint under the ADA which would otherwise amount to conduct referred to in s 18(1)(a) of the ADA, these events occurred after the respondent allegedly engaged in the conduct that is the subject of the complainant's complaint.
10. I agree with the ADC that it cannot be considered that the respondent's alleged conduct was because of the complainant expressing an intention to make a complaint under the ADA.
11. Having considered the ADC's decision and the material both before the ADC and before the Tribunal, I am also satisfied that this evidence does not disclose any other alleged breach of the ADA.
12. For all of these reasons I am satisfied that the ADC made the correct decision to reject the complainant's complaint.

1. Pursuant to s 72(1) of the ADA, the complainant's complaint lapses.