Adjapawn v University of New England [2001] FCA 231 | Case summary

REASONS FOR DECISION Introduction 1 At the time of the events the subject of this complaint Mr Adjapawn (the Applicant) was an overseas student who was enrolled at the University of New England in Armidale (the Respondent) undertaking a Masters Degree in Peace Studies. He was residing at the Mary White Residential College located on the University campus and was appointed as a College Resident Assistant. 2 On 12 September 2005 the Applicant's position as a Resident Assistant was terminated. At the same time he was given three hours notice to vacate his accommodation at Mary White College. 3 The Applicant claims that he was discriminated on the grounds of race. In summary he claims that he was less favourably treated by being evicted from his accommodation and having his Resident's agreement immediately terminated because he is African. The Factual Background 4 There is little dispute as to the factual background in this matter. The Applicant was living in Mary White College, block 7 which mostly accommodates mature age students. The Applicant had been recommended for appointment as a "College Resident Assistant" by the Mary White College Principal Mr Nick Hanson and was subsequently appointed by the Mary White College Board as a Resident Assistant (RA). 5 The Applicant was one of a number of RA's at Mary White College. The terms of the appointment of College RAs at that time were governed by the "Mary White College Resident's Assistant's Agreement 2005" (the Agreement). The Agreement was signed by the Applicant on 11 November 2004 and by Mr Hanson on 12 November 2004. In summary RAs provide services to the College in return for accommodation and other services including meals being provided at concessional rates. 6 The Agreement provides at clause 15 as follows: I acknowledge and understand that the resident assistants are not deemed to be employees of the University, but that in accepting this role I undertake to provide a range of services to the resident community and to support the Principal and his staff in the efficient management at the College. In return, in addition to the accommodation and other services provided at concessional rates, the Principal undertakes to provide advice, guidance , training and opportunities for personal growth and development. 7 On 12 September 2005 Mr Nick Hanson asked the Applicant into his office and gave the Applicant notification in writing that he was dismissed from his position as College RA and directed him to vacate the College. The letter noted that Mr Hanson had received a number of complaints against the Applicant. The complaints were described as being complaints of " sexual harassment and possibly sexual assault". Mr Hanson wrote, " I have investigated the complaints that I have received in writing, and I am convinced that they are genuine and accurate ." The letter goes on to state, " As you are aware the position of College Resident is one of trust and responsibility. Following discussions with a number of female residents, or former residents, of College, I am of the opinion that you have displayed unacceptable behaviour that is not in keeping with what is expected of a resident assistant." 8 Mr Hanson further writes, "independent verification of reports made to me show that you have on a number of occasions contacted female residents at unreasonable hours, and in a manner that is not in keeping with your position as a residential leader." 9 The Misconduct is identified by Mr Hanson as in breach of section 4.1.1 and section 4.2.8 of the UNE Handbook 2005. He also refers to clauses 12 and 13 of the Agreement. He writes that the Applicant's behaviour has breached these conditions and is sufficient grounds for immediate dismissal. The letter goes on to specify that he is using the powers as College Head under Student Conduct clause 10, page 74 of the UNE Handbook 2005. The letter directs the Applicant to vacate the college by 4pm that day and bans him from College premises and the immediate environs until further notice. Mr Hanson goes on to recommend that the Applicant not speak to any current resident of the College without first seeking his permission. 10 The Applicant was also advised in the letter that "Further investigations are continuing and the matter may be referred to the Student Disciplinary Committee." The Conduct 11 The Applicant alleges that the following conduct amounts to less favourable treatment on the grounds of race: It is alleged that when Mr Hanson gave him the letter terminating his Resident's Assistant Agreement he said the words, " You Africans behave like animals ." The Applicant claims that his dismissal from the role of RA and his eviction from Mary White College were without investigation in breach of the required UNE policy and procedure. The Applicant claims he was told to vacate his accommodation at Mary White College within three hours or otherwise he would be removed by force. He was also not offered alternate accommodation. Mr Hanson held a meeting directly after the Applicant left the College and told those attending the Applicant had been dismissed from College because of the sexual harassment allegations made against him. This is claimed to be in breach of UNE policy and procedure in respect of confidentiality. It is alleged that on 21 October 2005 Mr Hanson instructed the Students Centre to de-register the Applicant and cancel his PhD canditure because of a debt to Mary White College. The Applicant was in credit and did not own a debt to the College. The Evidence and the Tribunal's Findings The statement 12 The Applicant gave evidence that when he was in Mr Hanson's office Mr Hanson said the words, "You Africans behave like animals". Mr Hanson denied he made any such statement. There were no other witnesses present when the statement was alleged to have been made. 13 The Respondent relies upon a document entitled "Attachment to form 7A- application for Relief in Relation to Unfair Dismissal" "Reasons for Application". The document was prepared in relation to an unfair dismissal claim which was subsequently abandoned by the Applicant. The document claims the dismissal was "unfair, unjust and unreasonable as the Applicant was not provided with any procedural fairness or natural justice by the Respondent to address false allegations made against the Applicant by students for sexual harassment". The document was prepared by the Applicant's former solicitors, being Rice More and Gibson Solicitors. The document does not refer to the comment made by Mr Hanson. 14 Also in evidence is a statement from Dr Jane Watt, the Applicant's treating general practitioner from the University Medical Centre. Dr Watt treated the Applicant in relation to effects of the incident at Mary White College. Dr Watt records the Applicant first presented on 29 September 2005. She reports that he was very upset in that consultation. She records the history given with the Applicant being dismissed from the College on 12 September 2005 after allegations of sexual harassment. She reports that the Applicant claims he was unaware of the allegations of sexual harassment at the time. He was only given three hours to vacate the College. The Master at the College then publicly announced his dismissal to the whole of the college community. He had nowhere to stay and had been sleeping in his office, although now had alternate accommodation. 15 Dr Watt reported the treatment provided by her and the diagnosis. At the time of writing the report she noted that the Applicant "expressed a desire to continue to seek justice for himself and to prevent others experiencing what he had to go through." Dr Watt does not mention the Applicant claimed that he was racially discriminated against. Specifically she does not mention that the Applicant told her about the comment alleged to have been made by Mr Hansen. 16 The evidence given by the Applicant was that he could not recall if he told Dr Watt about the statement. He said that he did tell others, although could not recall who those persons were. 17 Also in evidence is a statement from Lyn Tucker who is the Employment Equity and Diversity Officer at the UNE. Ms Tucker states that she saw the Applicant on 13 September 2005 in her role as Senior Equity Officer at the UNE. He advised that he had been evicted from Mary White College the day before. He said that he had been accused of sexual harassment but did not know who made the allegations or what the basis of the allegations was. He requested assistance in the matter. 18 Ms Tucker states that with the Applicant's consent she spoke to the Head of College, Nick Hansen, the Deputy Vice-Chancellor Professor David Rich and the Postgraduate Liaison Officer Jane Davies over the next few days. She also gave the Applicant the UNE "Sex-based Harassment Policy and Procedures" and discussed options available under that policy. Ms Tucker makes no reference to being told about the alleged statement of Mr Hansen. 19 Professor Eilis Magner, Foundation Professor of Law, UNE gave evidence that in December 2004 she had been appointed as the Senior Ombudsman for the UNE which oversaw investigations of complaints by students and staff. Professor Magner states that she was contacted by Ms Jane Davies who wanted her to investigate the dismissal of the Applicant. She spoke to the Applicant who was extremely upset and he said words to the effect, "They have denied me natural justice by dismissing me this way." 20 Professor Magner stated that she advised the Applicant that the Ombudsman team only had jurisdiction to deal with matters where there was no other avenue of recourse. She said that the university had sexual harassment provisions which covered this kind of situation and she stated that he had the right to seek an investigation under those provisions. Professor Magner states that at no time during the meeting did the Applicant allege that Mr Nick Hansen made a racial slur against him during his dismissal. 21 Professor Magner stated that she subsequently received a letter from Ingrid Moses, the Vice Chancellor of UNE asking her to investigate the sexual harassment claims made against the Applicant. While it was not part of her usual role, the head of the Equity Office who normally dealt with such matters was on extended leave. She wrote to the Applicant on 30 September 2005 asking if he objected to her conducting the investigation and he did not object. 22 Professor Magner states that she did not recall at any time during any of the meetings with the Applicant that he ever mentioned that he felt he had been racially discriminated against by the College or UNE. 23 There was no evidence from any witness in any way to support this part of the Applicant's claim. 24 The Tribunal notes that after the incident on 12 September 2005 the Applicant took steps to address his dismissal and eviction. He contacted Ms Lyn Tucker who assisted him in his attempts to resolve the issues. He wrote to the Vice Chancellor. He and Ms Tucker had an appointment with Professor Magner the University Ombudsman. He subsequently participated in an investigation conducted by Professor Magner in respect of the sexual harassment allegations. He also engaged solicitors to act on his behalf. His solicitor from Rice More Gibson Solicitors initially commenced proceedings in the Industrial Relations Commission, although those proceedings were discontinued. The Applicant gave evidence that he told people about the statement, although he could not recall who they were. 25 In relation to the statement the only evidence is that of the Applicant that Mr Hanson made the statement, which is denied by Mr Hanson. There is simply no other evidence aside from that of the Applicant to support the fact that the statement was made. In this situation where the Applicant appears to have taken all the steps he can to assert his rights it is implausible that there is no other evidence to support the Applicant's assertion. The Tribunal is therefore not satisfied that the statement was made, as the Applicant has failed to discharge the evidentiary burden that the statement was made more likely than not. The denial of procedural fairness in relation to the dismissal and the eviction and Failure to comply with University Policy and Procedure 26 Mr Nick Hanson gave evidence that he had received complaints about sexual harassment from female residents of the College. He said that he spoke to the two complainants. He then spoke to other members of Block 7, residents and former residents. He said that he formed the view that there was a sufficient pattern of behaviour which was unacceptable for a leader in a residential college. 27 Mr Hanson was asked how he could be convinced about the allegations when the subject, (the Applicant), was not involved in the investigation. Mr Hanson stated that he knew the "girls" very well and knew of their honesty and integrity. He was convinced the complaints were "genuine and accurate". He said the second complainant was "so scared" of the possible consequences if the Applicant knew about the complaint. 28 Mr Hanson's evidence was that the two complainants provided written statements. He had spoken to four former residents. He said that he rang them and asked if they had problems with the Applicant regarding his behaviour. Three indicated that on occasions his behaviour made them uneasy and there were also late night phone calls with suggestions to come to his room. Mr Hanson said that he deemed this sort of behaviour to women inappropriate for a person in a leadership role in College. This was particularly so when the RA's held a master key to all rooms in the College. 29 His evidence was that the reason the Applicant was required to vacate the College by 4pm on the day was that Mr Hanson was concerned to protect the two complainants. Mr Hanson further stated that he believed because of the nature of the complaints that the Applicant would be able to easily deduce who made the complaints. 30 Mr Hansen said that before he took action against the Applicant he sought advice from Mr Michael Maas, who was the Residential Systems Manager for the 7 University Colleges. He advised him of the allegations and the actions he had taken to obtain written statements from the complainants. He said that he sought advice on the draft letter to the Applicant and amended the letter at Mr Maas request. He had also requested that the Applicant be transferred to another College on a temporary basis. Mr Hansen stated that after consulting with the Pro-vice Chancellor it was the view of Mr Maas, that the Applicant should be removed from Mary White College and that he could not stay on a temporary basis in another residence College. He said that it was on this basis that he acted. 31 Mr Hanson stated that he did make a call to Smith House, a backpacker Hostel, prior to meeting with the Applicant to ascertain if there was accommodation available that night. He advised the Applicant during their meeting that there was accommodation available at Smith House. 32 In her statement Professor Magner sets out how she came to investigate the allegations of sexual harassment made against the Applicant. She also details the manner in which she conducted the investigation. She states that she provided a report which included her findings, a copy of which was before the Tribunal. The findings were that each of the complaints of sexual harassment had occurred. It was her recommendation that the Applicant not be restored to his position as RA of the College. She states that had he not already been dismissed from the position of College RA she would have recommended that he be removed from this position. She would also have recommended that the option of transferring him from Mary White College to another student residence be explored as she did not feel it was appropriate that he remain a resident of the Mary White College. 33 Professor Magner states that she did not recall at any time during any of the meetings that the Applicant ever mentioned that he felt he had been racially discriminated against by the College or UNE. 34 When asked whether she condoned what happened to the Applicant, Professor Magner stated that she condoned nothing that had occurred prior to her involvement. Professor Magner clarified this by stating that she was very concerned with the way the matter was handled by Mr Nick Hansen. She was very concerned that the Applicant did not have an opportunity to respond to allegations or address those allegations. She was also very concerned by the fact that Mr Hansen called the meeting with other RA's at the College to discuss the actions he had taken as this was a breach of confidentiality. There was a lack of natural justice in respect of the way the matter was dealt with by Mr Hansen. She recommended training in how to deal with such matters. 35 The Tribunal has had regard to the UNE "Sex-based Policy & Procedures". Paragraph 6 clearly sets out the "Mechanisms for Complaint Handling". There are a number of mechanisms available depending upon how the parties wish to proceed. This includes a discussion with the complainant without further action, or mediation, or formal complaint and investigation. Except for the procedure where the complainant wants to discuss the matter without taking it further the procedure requires the respondent to be notified of the complaint. In respect of a formal complaint with investigation the procedure specifically imposes an obligation to make available to the respondent a copy of the complaint. The respondent has a right of reply to the complaint. Paragraph 6.6 directs that the investigation will be carried out confidentially and in line with the principles of natural justice. 36 The Tribunal finds that there has been a clear departure by Mr Hanson from the requirements of the mechanisms for handling sexual harassment complaints. Mr Hanson's actions are clearly contrary to the requirements of the UNE Sex-based Policy & Procedures. The Tribunal further finds that there has been a complete denial of procedural fairness in relation to the actions taken by Mr Hanson in termination of the RA and the eviction. The Meeting 37 There is no dispute that after the Applicant left Mary White College on 12 September 2005 Mr Nick Hanson called a meeting. The Applicant relies upon statements from Fredy Valenzuela a PhD Candidate at the New England Business School, UNE and a resident of block 7 at Mary White College. Mr Valenzuela states that on 12 September 2005 along with other members of block 7 Mary White College he attended a meeting with Mr Nick Hanson, the College Principal. Mr Hanson told the meeting that the Applicant had been expelled from College due to allegations of sexual harassment by two female residents. Mr Hanson also mentioned that he phoned several other women who also had concerns about the behaviour of the Applicant. 38 Mr Hanson told the meeting that since the Applicant had a "trusting position in the college (Resident Assistant) Mr Adjapawn could not continue being resident of the college." Mr Valenzuela also states that one resident asked about the legal situation and Mr Hansen replied that "they were at the stage of merely allegations". 39 Mr Graeme Bourke, PhD candidate and a resident of block 7, Mary White College also gave a statement. He also attended the meeting on 12 September 2005 where Mr Nick Hanson addressed the residents of block 7. Mr Bourke's evidence is that Mr Hanson advised that the Applicant had been dismissed from his position as RA and expelled from the College. Mr Hanson advised the meeting there were two written complaints of sexual harassment. In addition Mr Hanson said he had made several telephone inquiries to several women who were past residents of the College and they also had concerns about the Applicant's behaviour. Mr Hanson said that these conversations confirmed for him that the written complaints were true. As a result he took the actions he did. Mr Bourke's evidence is that he asked about the present status of the complaints and was told that they were merely allegations. 40 The evidence of Mr Hanson was that he did call the meeting on 12 September 2005. This was because there were rumours and innuendo circulating among members of staff and RAs throughout the College. He stated that he thought it necessary to tell the residents that the Applicant had been dismissed and about the allegations made against him. He said there was a need to determine if he needed a temporary RA in block 7, as block 7 is for mature age students and is located on the periphery of the College. 41 When questioned about the requirements of the University Policy Mr Hansen said that he was not aware of any policy that would restrict a meeting of residents. When directed to the Policy guidelines Mr Hansen stated that he was not aware of the clause in the sexual harassment policy guidelines in relation to confidentiality. He stated that he had acted in order to reduce the likelihood of misinformation spreading through the College, which he stated was what was occurring at the time. 42 Paragraph 6.1 of the Sex-based Policy & Procedures is headed "The First Stage". At that stage both the complainant and the alleged perpetrator will be directed to maintain confidentiality in the matter. In respect of lodging a formal complaint again paragraph 6.4 and 6.5 impose the obligation of confidentiality on the complainant and the respondent. Paragraph 6.6 directs that the investigation will be carried out confidentially and in line with the principles of natural justice. Paragraph 8 headed "Confidentiality and Legal Liability" once again addresses the need for confidentiality in the handling of sex-based harassment complaints. The Tribunal therefore finds that Mr Hanson was in breach of the Sex-based Policy & Procedures in relation to the disclosures made about allegations of sexual harassment against the Applicant at the meeting on 12 September 2005. The Deregistration 43 The Applicant claims that on 21 October 2005 Mr Hanson instructed that he be deregistered from enrolment at the University because of a debt to the College. The Applicant's evidence was that he was not in debt to Mary White College and had a credit of $366.30. The Respondent concedes that the Applicant was in credit at the time he left the College. The Applicant claims that he was deregistered because of Mr Hanson's direction and it was not until a letter was sent from Ms Sally James, the administrator at Mary White College, that his enrolment was reinstated. 44 Mr Nick Hanson gave evidence that the deregistration of the Applicant was due to an error in which he had no involvement. His evidence was that the Student Centre had introduced a new system whereby if debts were not paid student enrolment could be cancelled. He said that the respective "Heads of College" had disquiet about the system introduced. 45 He gave evidence that what had occurred was that the Applicant's student file had incorrectly showed a debt. He gave advice that the account should be adjusted by letter of 15 September 2005. Mr Hanson stated that at that time there were 50 to 60 other students who also had there enrolment cancelled. He again reiterated that he had no involvement in the cancellation of the Applicant's enrolment. 46 Mr Hanson was asked why it had taken a letter from Sally James, Mr Hanson's assistant, to the finance department to lift the deregistration. Mr Hanson's evidence was that the letter may have been prompted by a phone call from Lyn Tucker to tell him that the Applicant's enrolment had been suspended. He said this surprised him. He had asked his assistant to adjust the Applicant's account for his departure. He said at the time the new residential financial system was having teething problems, the deregistration was clearly an error. 47 The Applicant appears to believe that Mr Hanson was involved in having his student enrolment deregistered. There is no evidence before the Tribunal to support this claim, other than the unsubstantiated belief of the Applicant. Mr Hanson has provided a plausible explanation as to how the deregistration came about. Having regard to the evidence before us the Tribunal does not accept that Mr Hanson either directed or was involved in the deregistration of the Applicant's enrolment as a student at UNE. The Conclusion 48 The Applicant relies upon section 7(1)(a) of the Anti-Discrimination Act 1977 (the Act). Section 7 provides that a person discriminates on the ground of race if on the ground the person's race the perpetrator treats them less favourably than in the same circumstances, or circumstances which are not materially different, it treats or would treat a person of a different race. 49 Section 8(2)(c) provides that it is unlawful for an employer to discriminate against an employee on the ground of race by dismissing the employee or subjecting the employee to any other detriment. 50 Section 20(2)(b) provides that it is unlawful for a person, whether as principal or agent to discriminate on the grounds of race by evicting the person or subjecting the person to any other detriment. 51 The Applicant must establish that in relation to his claim that he was treated less favourably by the Respondent than it would have treated someone not of his race. 52 In Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP5 (Aldridge) the Appeal Panel in the ADT identified two questions to be asked. Firstly was there less favourable treatment and secondly if so, was it on the ground of race. The comparator is a hypothetical comparator, a person not of the Applicant's race. 53 In Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Dutt) the ADT dealt with the issue of how these questions might be answered. It was noted that when the comparator is a hypothetical, the first question cannot be answered as a simple stand alone question. The way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. They go on to state, "The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same or similar circumstances." 54 The approach taken by the Appeal Panel in Aldridge is noted in Dutt, "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". The Panel in Dutt however went on to state, "In the case of a hypothetical comparison, an extension of this might be: "but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known." 55 In this matter the only direct evidence that the Applicant was less favourably treated on the grounds of race was the alleged statement of Mr Hanson. The Tribunal has not accepted the Applicant's claim that the statement was made. There is therefore no direct evidence of discrimination on the grounds of race. 56 The issue of what happens when there is no "direct evidence" of less favourable treatment has been discussed in decisions including Dutt, Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence of less favourable treatment the Applicant must rely upon inference. In Paramasivan v Wheller [2001] FCA 231 it was noted that where the discrimination will not be able to be proved directly by reference to oral and written statements the discrimination may be able to be inferred from a course of conduct. 57 In respect of drawing inferences to prove less favourable treatment in Dutt the Panel stated that the authorities identify the following considerations: - a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts; - an inference must be reasonably drawn on the basis of primary facts; - an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; - a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof; - it is not enough that the inference is a mere possibility: it must be one of "probable connection"; - the inference must be a logical one, and not supposition; - an inference cannot be made where more probable and innocent explanations are available on the evidence. 58 In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 also referred to in Dutt it was noted at paragraphs 23 and 24: … The applicant produced no direct evidence of race discrimination and he has not pointed to any circumstantial evidence which would permit us to draw the inference that race had a "causally operative effect" upon the impugned actions of the respondent … … We were left in no doubt that it was the applicant's strongly held belief that he had been the victim of race discrimination but "the level of his belief went no further than a mere suspicion with (sic) any supporting material"… There was nothing in the applicant's voluminous evidence which in any way went beyond mere suspicion on his behalf that anyone associated with the respondent had at any time discriminated against him on the ground of race. 59 In this matter the circumstantial evidence upon which the Tribunal has found proven is that the Applicant was dismissed from his role as an RA and evicted from his accommodation in a manner which was in breach of UNE policy and procedure. Mr Hanson failed to comply with the guidelines in any way at all. The manner in which the investigation was undertaken also constituted a complete denial of procedural fairness. There was also a breach of the UNE confidentiality requirements by Mr Hanson in respect of the meeting held after the Applicant vacated the College on 12 September 2005. 60 It is clear to the Tribunal that the process was very difficult for the Applicant. Mr Hanson did however provide a plausible explanation for why he acted in the manner he did. He has given evidence that he made enquiries, such as they were, and formed a genuine belief in the accuracy of the complaints. He was therefore very concerned about the behaviour in respect of a College leader. He was also very concerned about the safety of the female complainants. Before he took any steps Mr Hanson checked the course of action he was proposing with Mr Maas. Upon the advice of Mr Maas he did not suggest a temporary transfer to another College until such time as the matter was fully investigated. 61 The Tribunal has noted that Mr Hanson's actions completely denied the Applicant procedural fairness. It would appear that there was a lack of familiarity with the policy which governed the actions of both Mr Hanson and Mr Maas. The conduct of the matter by Mr Hanson is not acceptable in terms of procedural fairness requirements or the UNE policy and procedure. The Tribunal is however unable to find that there is a probable connection between the conduct and the Applicant's race. This is particularly so where Mr Hanson has provided an explanation for the reason he acted in the manner he did and with the support of Mr Maas. 62 For these reasons the complaint fails. Orders That the complaint be dismissed.

Adjapawn v University of New England

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Cases Cited (1)

Cited By (1)