BVA v The University of Newcastle

Background

1. Both BVA and the University provided a detailed chronology of events to the President of the Anti-Discrimination Board attaching relevant documentation. That makes is a relatively straight forward task to make findings of facts about what happened. The real issue is whether the University has breached the Anti-Discrimination Act.
2. BVA enrolled in a PhD in 2010. Her supervisor was Professor X and her co-supervisor was Professor Y. In October 2011, about 9 months before BVA went on leave, Professor X became concerned with BVA's lack of progress in her research. Despite discussions with her, he did not see any improvement. In December 2011 Professor X agreed with BVA on a detailed progress plan for the next 6 months. On 22 May 2012, in an attempt to motivate BVA, Professor X set some goals and told BVA that a failure to meet them would result in the commencement of action whereby BVA would have to 'show cause' as to why her canditature should not be terminated. On 27 June 2012 Professor X determined that BVA should be asked to show cause. Steps were being taken to issue the show cause notice when, on 1 July 2012, BVA was involved in a serious car accident in which she suffered physical injuries. By that time she had completed about 2 ½ years of study and had about 18 months to go.
3. The University gave BVA 6 months leave for the second semester of 2012. When that time expired, she was given a further 6 months leave for the first semester of 2013. The complaint covers the period of just over a year from 1 June 2013 to 28 July 2014 when BVA was still on leave and negotiations were being conducted in relation to the conditions on which she would be permitted to re-enrol.
4. There are three components of the complaint: the publication of a research paper, the imposition of conditions on BVA's re-enrolment and the decision in July 2014 to require BVA to take a further 12 months leave.

Publication of research paper

1. BVA met with her supervisors, Professor X and Professor Y, on 5 May 2013 to discuss the publication of a paper. BVA's version of what happened is that; I was told we would submit the paper within 2 weeks of our meeting. The paper was extremely time sensitive. My supervisor would not allow me to submit my paper and I was informed I could not submit it without permission and the relevant policy quoted to me. I was told (name deleted) was negotiating getting the paper submitted under my name and suddenly it was submitted without my permission. I was then told it would go ahead with my name as first author, months passed and no one would tell me what was happening. It was only when I went to the journal, did I find out the paper had been withdrawn. There was then an investigation where I was not given the opportunity to state my case. There was then a further investigation where I was not spoken to, I made a statement, my supervisor made a statement, it was then judged that my supervisor's statement was more valid since he was the experienced researcher. I stated I had evidence to back up my claim and no-one requested it before making the decision. I was told the paper was rejected, when it had already been withdrawn months previous. I was told I could submit the paper and I attempted to, then the journal rejected it because the same person who said I could submit it, told them I couldn't without notifying me, making me look stupid to the journal. I was then told at a later date I could submit it under my own name.
2. On 24 March 2014 the University responded to a complaint BVA had made regarding authorship of the paper. The outcome was that BVA was to be named as a co-author and that Professor X was to be named as first author. BVA responded by saying that she did not give permission for Professor X to be first author, that she wrote the paper and that Professor X had claimed credit for her paper which was unethical.

Imposition of conditions on re-enrolment

1. Following the expiry of the 12 month period of leave, the University wrote to BVA on 25 June 2013 to ask her about her plans for the second semester of 2013. The University told BVA in that letter that if she planned to recommence her candidature and scholarship, the University would require confirmation from her medical care team that she is physically and psychologically fit to resume her studies.
2. BVA responded by asking a series of questions about undertaking her PhD elsewhere. Professor Y, who had been her co-supervisor, answered those questions in an email of 29 June 2013. He told her that if she wished to transfer her project she would need to discuss that matter with the Office of Graduate Studies. The University denies that it ignored her requests for information and assistance.
3. Further options were presented and discussed including a proposal by BVA that she study part-time and continue with the same project at a different university. BVA says that she initially asked for access to the computer program she said she needed to continue with her PhD but was told she could not have access to it until she re-enrolled. Further negotiations ensued but BVA did not apply to re-enrol for the second semester of 2013.
4. On 10 December 2013, the University wrote to BVA advising her that she was due to return from her leave of absence in Semester 1 2014 but that because of a breakdown in the relationship between her and her supervisors, the matter of a research topic and supervision would have to be negotiated after she confirmed her intention to return. The University expressed its expectation that she would re-enrol as an on-campus, rather than an external student so that they would be able to provide her with support for her research. As an initial step the University required written notification of BVA's intention to resume studies.
5. BVA wrote back on 17 January 2014 requesting that the University consider allowing her to continue as a part-time external student because she had no accommodation or family support in Newcastle. BVA requested that Professor X continue to be her supervisor and that communication be through a mediator. She noted that Professor Y had previously performed that role. BVA nominated two people at other universities who she said had agreed to be her other supervisor. BVA added that to complete her PhD she would need access to Professor X's computer program so that it could be integrated with her own. BVA also provided some information relating to treatment for her mental health issues but that information was not in evidence.
6. The University replied on 7 March 2014 offering BVA the opportunity to re-commence in her program as a part-time off campus student subject to agreement about the level of resources to be provided by the University, that Professor Y would be her supervisor and possible re-scoping of the research project. The University also required that a communication plan be developed. BVA was given three weeks to respond to this offer. She did not accept the offer.
7. In the ensuing weeks BVA sent more than 25 emails to various members of staff making serious allegations including that she has been sabotaged by her previous supervisor, bullied by other students, prevented from continuing her studies, maliciously denied relevant information and deliberately ignored for 9 months. In addition BVA alleged that a student had fabricated evidence against her, her supervisor had stolen her work and acted unethically and that the University's procedures were corrupt and dishonest.
8. In a reply dated 25 March 2014 she made the following points: 1. the University did not respond to significant aspects of her proposal even though she had a good reason for everything she proposed; 2. although the University's policy states that they will respond in 2-3 days, the University has taken 9 months to respond to her; 3. Professor X was supervising other PhD students and he should not be able to dictate which students he can supervise; 4. she still needs access to the computer program from Professor X so he needs to be her supervisor and they could communicate through an intermediary; and 5. Professor Y is not an appropriate supervisor because he does not give constructive feedback.
9. The email also contained the following passage: "The University won't stop this torture until I die. I wish I had died in that car accident, it would be far preferable to be abused and tormented for every day of my life for months almost years. My requests are reasonable. I don't understand why there is any problem with them, it would not harm anyone, just prevent me from harming myself which it seems that is what the university wants to happen to me so I will no longer be an issue to them. "
10. On 28 March 2014 the University wrote to BVA saying that while Professor X is the leading expert in her field of research, any collaboration between him and BVA is no longer practical given the serious allegations she has made against him. The letter concluded by saying that: "Any further assertions that Professor X must supervise your thesis will not be entertained and the University regards this matter as closed."
11. The University gave BVA three options: accepting the re-enrolment conditions in the 7 March 2014 letter, applying for further leave of absence or withdrawing her candidature. BVA wrote back on 31 March 2014 rejecting the proposal for re-enrolment.
12. On 2 May 2014 Professor Z, on behalf of the University, put a second proposal to BVA based on her continuing with her candidature off campus and on a part-time basis. That offer contained conditions relating to supervision, funding, a project plan and a communication protocol. The communications protocol was based on the fact that there was an agreement that BVA only contact the University through a representative of the Newcastle University Post Graduate Students Association (NUPSA). Despite that agreement the University alleged that BVA had been contacting staff directly and making adverse comments about the University and staff on Facebook.
13. BVA responded on 8 May 2014 repeating that she needed the computer program written by Professor X, she did not understand why Professor X could not be her supervisor and did not agree with all aspects of the communications protocol. On 5 June 2014 the University extended the offer to 1 July 2014.
14. On 5 June 2014 BVA emailed the University saying that she had no choice but to end her life, to end the suffering and torment. She hoped 'everyone is happy that they have finally gotten rid of me." The University contacted the police and a clinical nurse in the city in which BVA was living. The University also made other offers of assistance from the University's counselling service.
15. On 26 June 2014 the University reminded BVA that the offer on the table was that made on 2 May 2014 and gave her an extension of time to reply until 3 July 2014. There was further correspondence between the parties as to the necessity for some of the conditions.
16. On 8 July 2014 BVA purported to re-enrol but agreement had not been reached in relation to the all the conditions.

Imposition of 12 months enforced leave

1. On 24 July 2014 the University wrote to BVA saying that her rejection of the conditions for re-enrolment meant that she had not effectively re-enrolled. The University placed BVA on a period of enforced leave for 12 months.
2. The University also submitted that BVA's behaviour had been unreasonable and the communications protocol was necessary to protect the health and safety of its employees.

Characterisation of breaches

1. When determining whether it is fair and just for the complaint to proceed, the merits of the complaint are relevant. As Schmidt J held in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [38], while "an obviously meritorious complaint will not be refused leave" a complaint which lacks substance may be refused.
2. No pleadings have been filed in these proceedings but the factual and legal parameters of the complaint are those set out in the President's Report. The President referred one complaint of disability discrimination in breach of s 49L.

Disability

1. BVA describes her disability as "severe depression" but acknowledges that her mental health team does not believe she has a mental illness. No medical reports or other information were included in the President's Report apart from a brief email from a mental health nurse dated 18 March 2014. The nurse states, in part, that: I will arrange a medical appointment with Dr (name deleted) but she doesn't really want to take any medication, doesn't present with biological symptoms of depression.
2. BVA is highly distressed. She cried throughout the oral submissions that she made by phone to the Tribunal. Her level of distress is also apparent from her correspondence with the University. Based on that information, it is likely that she would be able to prove that she has a "disorder, illness or disease that affects her thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour": Anti-Discrimination Act, s 4.

Denial of access to benefits and subjecting to a detriment

1. Section 49L(2) provides that: (2) It unlawful for an educational authority to discriminate against a student on the ground of disability: (a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, (b) by expelling him or her, or (c) by subjecting him or her to any other detriment.
2. We accept that, if leave were granted, the Tribunal hearing this matter would be likely to find that BVA is a "student", even though she was not enrolled during the period of the complaint and that the University is an educational authority.
3. The University has, in relation to each of the three components of the complaint, subjected BVA to a "detriment" and/or denied her access or limited her access to a benefit provided by the University. The only exception to that finding is that the University denies that its administrative staff and supervisors provide the benefit of providing any professional mental health service to BVA. BVA stated that she knows that doing the PhD is the only thing that helps with her depression. She stated that: When I get depressed and suicidal, only speaking with members of staff at the University can prevent me from doing harm to myself, because they are the only ones who know information about the situation, and the situation is what is causing me so much pain.
4. The University submits that BVA has unreasonably required certain members of staff to act as pseudo mental health clinicians. That is an unreasonable expectation and not a 'benefit' that those members of staff provide to students under s 49L(2)(a).
5. Section 49L (5) provides an exception for "unjustifiable hardship" in certain cases: (5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.
6. Unjustifiable hardship is defined in s 49C: 49C What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
7. The University did not rely on this defence when responding to the application for leave for the complaint to proceed.
8. The University did not dispute that it is vicariously liable for the actions of its employees by virtue of s 53.

Definition of discrimination

1. The main issues, if the complaint proceed to a hearing, would be whether the University discriminated against BVA on the ground of disability either "directly" or "indirectly". There is no positive duty on the University in the Anti-Discrimination Act to accommodate any needs BVA may have as a result of a disability.
2. Section 49B defines discrimination on the ground of disability. Discrimination may be "direct" as defined in s 49B(1)(a) or "indirect" as defined in s 49B(1)(b): (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
3. The two elements which must be proved to substantiate a complaint of direct discrimination are "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. The treatment afforded to BVA must be compared to the treatment that was or would have been afforded to a real or hypothetical person without her disability in the same circumstances or in circumstances which are not materially different. In addition, disability must be at least one of the reasons for the treatment: Anti-Discrimination Act s 4A.
4. There is no reference in the President's Report to a person who could serve as an actual comparator. The Tribunal would have to imagine a hypothetical person without depression and identify the circumstances to be taken into account when comparing how the University treated BVA and how it would have treated such a hypothetical person.
5. In Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 the principal of a High School excluded Daniel, a student who, because of brain damage, engaged in aggressive and violent behaviours. Although the case was brought under the Disability Discrimination Act 1992 (Cth) the provisions are relevantly identical to those under consideration in this case. The majority (Gummow Hayne and Heydon JJ) held at 161 [224], that when comparing how the principal treated the student in comparison with a person who did not have brain damage, the decision maker must take into account "all of the objective features which surround the actual intended treatment of the disabled person". The majority went on to hold that: "It would be artificial to exclude (and there is no basis in the test of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. . . . In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had.
6. In light of the High Court's decision, the Tribunal would have to compare the way the University treated BVA given all her interactions and behaviours, with the way it would have treated another student without depression in the same circumstances. The objective circumstances in this case would include the way BVA has acted towards and interacted with staff at the University. Particularly relevant is the fact that she persistently and unreasonably contacted staff because she was depressed and suicidal.
7. In relation to the "causation' part of the test for direct discrimination, there is no evidence that BVA's disability, as distinct from her conduct and other factors, was a reason for the way she was treated. No-one said, for example, that the reason conditions were imposed on BVA's enrolment was that she has depression. As with the vast majority of complaints of discrimination, a causal link between BVA's disability and the University's conduct would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: ". . . (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ; (d) a fact relied on 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"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence."
8. In order to substantiate a complaint of "indirect" discrimination, BVA would have to prove that: 1. the University has required her to comply with a requirement or condition; 2. she cannot comply with that requirement or condition; and 3. a substantially higher proportion of students without her disability can comply with that requirement or condition; 4. the requirement or condition is not reasonable in all the circumstances.

Principles

1. While the Tribunal should adopt a 'cautious approach', especially in circumstances where the evidence has not been tested, the onus is on BVA to establish that leave should be granted. The question for the Tribunal in this case is whether all or part of the complaint is lacking in substance so that it would not be fair or just for it to proceed.

Publication of research paper

1. Following a complaint by BVA, the University conducted an investigation into the publication of the paper. In correspondence to the President of the Anti-Discrimination Board dated 28 August 2014, BVA wrote that, "the paper issue has sort of been sorted by default, but I feel it highlights how terribly they have treated me."
2. The University submitted that there does not appear to be any allegation of discrimination on the ground of disability in relation to the publication of the research paper and no remedy is sought.
3. It is not apparent that given the same objective circumstances, a hypothetical person without depression would have been treated any differently than BVA was treated in relation to the publication of the research paper. Nor can it be inferred that a reason for the University's decisions about the publication of the paper were made 'on the ground of' BVA's depression. A more probable and innocent explanation is that the University made decisions in accordance with its understanding of relevant policy and in response to representations BVA made. Even if the University behaved 'unethically' or treated BVA "terribly" that is unlikely to establish the necessary causal connection between the treatment and her disability.
4. There is no discernible basis for a complaint of indirect discrimination. No unreasonable requirement or condition was imposed on BVA with which BVA could not comply and with which a substantially higher proportion of people without depression could comply.
5. As well, BVA acknowledges that the issue has been "sorted by default".
6. This part of the complaint lacks substance. For that reason and because it appears to have been resolved satisfactorily, it is not fair or just to grant leave for it to proceed.

Imposition of conditions on BVA's re-enrolment

1. According to BVA, she needed to have the computer code and data in order to continue her PhD. That was a non-negotiable matter from her point of view. She said she thought it was "bullying" not to allow her access to the resources she needed. She added: It also feels like discrimination, they have made everything a lot worse for me and are using the fact they have made me a lot worse to state I am not fit to return, but they have no medical documentation to back that up. . .
2. Even if the University's conduct made BVA's mental state worse, that is not the issue at this stage of the proceedings. Any worsening of her condition only becomes relevant if the complaint of discrimination is substantiated and BVA claims monetary damages.
3. The University refused to give her access to the code or the data until she re-enrolled on the conditions it had specified.
4. It is not apparent that given the same objective circumstances, a hypothetical person without depression would have been treated any differently than BVA was treated in relation to this issue. Nor can it be inferred that a reason for the University's decisions about the publication of the paper were made 'on the ground of' BVA's depression. A more probable and innocent explanation is that the University refused to provide the information because BVA was not enrolled as a student at the time.
5. When considering indirect discrimination, a possible "requirement or condition" that the University imposed was that in order to obtain the computer code and data, BVA needed to be enrolled as a student. Even if, in a practical sense, BVA could not comply with that requirement, it was not a requirement with which a substantially higher proportion of students without BVA's disability could comply. Nor is it likely to be considered to be unreasonable in all the circumstances.
6. This part of the complaint lacks substance. For that reason it is not fair or just to grant leave for it to proceed.
7. The University was initially prepared to accept that because of BVA's circumstances she should be permitted to re-enrol part-time and externally. The approval was on BVA's insistence and against the advice of the University. It was subject to various conditions which the University regarded as reasonable. Those conditions were necessary, in the University's view, because of the fact that BVA was on the verge of having 'show cause' action implemented when she was involved in the car accident, the need for a new supervisor because of her behaviour towards the previous supervisor and the part-time, off campus nature of the proposed enrolment. BVA rejected those conditions. The University later put forward a new proposal which was also rejected.
8. It is not apparent that given the same objective circumstances a hypothetical person without depression, but who behaved in the same way as BVA, would have been treated any differently. Nor can it be inferred that the proposals put forward by the University were 'on the ground of' BVA's depression. A more probable and innocent explanation is that the University was attempting to accommodate BVA's requests but was also mindful of the policies in relation to PhD students and the effect of BVA's re-enrolment on certain members of staff.
9. There is no discernible basis for a complaint of indirect discrimination. No unreasonable requirement or condition was imposed on BVA with which BVA could not comply and with which a substantially higher proportion of people without depression could comply. This part of the complaint lacks substance. For that reason it is not fair or just to grant leave for it to proceed.
10. The University's explanation for requiring a new supervisor was that the relationship between BVA and Professor X had broken down and there was a risk to his health and safety if the University required him to continue with that relationship. In particular, there was evidence from Professor Y that Professor X's health had been affected by BVA's behaviour towards him.
11. In BVA's view, Professor X was supervising other PhD students and he should not be able to dictate which students he can supervise.
12. It is not apparent given the same objective circumstances, that a hypothetical person without depression, but who behaved in the same way as BVA, would have been treated any differently. Nor can it be inferred that the condition that Professor X not supervise BVA was 'on the ground of' BVA's depression. A more probable and innocent explanation is that the University was attempting to protect Professor X's health and safety while, at the same time, ensuring that BVA was adequately supervised.
13. In terms of indirect discrimination, it is arguable that the University's imposed a requirement that in order to re-enrol, BVA would have to do so without Professor X as her supervisor. That is not a requirement with which a higher proportion of people without BVA's disability could comply. This part of the complaint lacks substance. For that reason it is not fair or just to grant leave for it to proceed.
14. The communications protocol was necessary, in the University's view, because of the regularity of BVA's contact with staff and her allegations and threats against several employees over a significant period of time. That protocol did not prevent BVA from accessing the University's services or facilities but it did require her to obtain permission before contacting staff members. It was designed to provide a safe framework in which BVA could interact with her supervisors, the Dean of Graduate Studies, her nominated support person and counselling services.
15. It is not apparent given the same objective circumstances, that a hypothetical person without depression, but who behaved in the same way as BVA, would have been treated any differently. Nor can it be inferred that the communications protocol was put forward 'on the ground of' BVA's depression. A more probable and innocent explanation is that the University was attempting to facilitate communication with BVA while also ensuring that the health and welfare of members of staff was not at risk.
16. It is arguable that the University imposed a requirement that in order to continue her studies, BVA had to agree to be subject to the communications protocol. Even if it is accepted that BVA could not comply in a practical sense with the protocol because it made her feel anxious if she was prevented from communicating, it is likely that a Tribunal hearing this complaint would be satisfied that such a requirement was reasonable in all the circumstances.
17. This part of the complaint lacks substance. For that reason it is not fair or just to grant leave for it to proceed.

12 months enforced leave.

1. The University submitted that the period of 12 months enforced leave was imposed in July 2014 because of the complainant's unreasonable behaviour which, by that stage, had escalated. The University did not take the more serious step of terminating BVA's candidature because of her failure to re-enrol.
2. It is not apparent given the same objective circumstances, that a hypothetical person without depression, but who behaved in the same way as BVA, would have been treated any differently. Nor can it be inferred that BVA was placed on enforced leave 'on the ground of' BVA's depression. A more probable and innocent explanation is that the decision was made on the basis of BVA's continuing and escalating unreasonable behaviours.

Order 1. The leave from complaint to proceed 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2015