CEU v University of Technology Sydney

NCAT Administrative and Equal Opportunity|2017-08-29|Before: Schmidt J

Overview

CEU, who has a history of depression and anxiety, complained that the University of Technology Sydney (UTS) discriminated against her on the ground of disability while she was a student nurse: Anti-Discrimination Act 1977 (NSW), s 49L(2). The President of the Anti-Discrimination Board declined the complaint as lacking in substance and CEU has applied to the Tribunal for permission (or 'leave') for the complaint to go ahead: Anti-Discrimination Act, s 92(1)(a) and s 96. The issue is whether it is "fair and just" for the complaint to proceed.
UTS submits that the Tribunal should not give permission for the complaint to go ahead because the decision to discontinue CEU's enrolment was based on a history of concerning behaviour and her failure to demonstrate, on the clinical placement with Royal North Shore Hospital, that she was suited for further professional experience. UTS also submits that at least one of the reasons for requiring her to undertake a Fitness for Placement Assessment before being allocated a clinical placement, was the voluminous emails that she sent to UTS senior staff. According to UTS that behaviour had no clear connection with any disability CEU may have. In any case, UTS submits that it would have treated any student who exhibited that kind of behaviour and failed the clinical placement component of the course in the same way.
The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J:◦ (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

Summary of alleged conduct

CEU makes numerous allegations of discriminatory conduct. I have summarised my understanding of the main allegations below: 1. 31 July 2015 - being required to seek counselling at UTS's expense, as a condition of continued enrolment; 2. 31 July 2015 - being required to satisfactorily Complete a Fitness for Placement Assessment before undertaking any further clinical placement as a nursing student; 3. 11 April 2016 - being withdrawn from all subjects and having her enrolment suspended without academic or financial penalty; 4. 20 May 2016 - following receipt of a psychological assessment, deciding to allow CEU to undertake one clinical placement after which a review would be undertaken to determine suitability to undertake further clinical placement; 5. during the period of clinical placement with Royal North Shore Hospital from 11 to 22 July 2016, treating CEU as a third year student instead of a first year student, over monitoring her, using their influence to ensure that staff at the placement gave her negative feedback and not "testing" the Unsatisfactory Practice Report to see if it was a fair report; 6. 20 July 16 - following receipt of unsatisfactory practice report, discontinuing CEU's enrolment.

Legal elements of complaint

Section 49L(2) of the Anti-Discrimination Act makes it unlawful for an educational authority, such as UTS, to discriminate against a student, such as CEU, on the ground of disability: (2) It is 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, or (b) by expelling him or her, or (c) by subjecting him or her to any other detriment.
"Disability" is broadly defined in s 4 and s 49A and includes "a disorder, or illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." Something is done on the ground of a person's disability if it is done on the ground of the person's disability or a characteristic that appertains generally to persons who have that disability": s 49B(2).
The term "detriment" has a relatively broad meaning. In A v Director-General, Department Education and Training [2008] NSWSC 1091 at [32] - [35] the Supreme Court held that "being in a school environment poisoned by racial harassment" could be a detriment. Similarly, non-compliance with a policy, failure to implement Departmental recommendations or failing to adequately respond to an incident or allegation could be characterised as a detriment.
If CEU is able to establish in relation to each of her allegations, that the University has "expelled" her or subjected her to "any other detriment" she then needs to establish that the treatment comes within the definition of discrimination in s 49B of the Anti-Discrimination Act. I understand CEU's complaint to be one of direct disability discrimination as defined in s 49B(1)(a).
In summary, in order to substantiate a complaint of direct discrimination CEU would have to prove that: 1. she has a disability as defined in the Anti-Discrimination Act; 2. the University expelled her or subjected her to a detriment; 3. that treatment was less favourable than the treatment that was or would have been afforded to an actual or hypothetical person, a person without his disability in the same or similar circumstances; (differential treatment) and 4. at least one of the reasons for the less favourable treatment was her disability (causation).
I have assumed that UTS is not relying on either of the defences in s 49L(4) or (5). CEU registered with the UTS Special Needs Service but did not say that she needed any particular accommodation to be made in relation to her disability.
UTS submitted that the Tribunal does not have power to order that CEU be re-admitted as a student. The powers of the Tribunal are set out in s 108 of the Anti-Discrimination Act and are discussed by authors Rees, Rice and Allen in Australian Anti-Discrimination Law, (2nd ed 2014, Federation Press 2014) at Ch 13.

Other proceedings

CEU has applied to the Tribunal to review decisions or conduct made under the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998 (PPIP Act). UTS submitted that CEU's lack of success in relation to these applications prompted her to complain to the President of the Anti-Discrimination Board. In the view of UTS, her decision to do so suggests that disability was not initially the focus of her grievance. UTS also submitted that the Tribunal's findings in relation to these decisions are relevant to the question of whether CEU should be given leave for her complaint to go ahead.
In one case CEU requested that UTS conduct an internal review of alleged breaches to her privacy under the PPIP Act. The internal review found that there had been no breach of her privacy. CEU applied to the Tribunal for a review of the alleged conduct. The Tribunal found that UTS had not breached any privacy principle and decided to take no further action: CEU v University of Technology Sydney [2017] NSWCATAD 79.
While that decision dealt with different issues from those that arise in these proceedings, the Tribunal set out relevant evidence about CEU's medical history and made findings of fact. I do not adopt those findings in these proceedings but, they are consistent with CEU's case that she had various disabilities during the period of the complaint. To that limited extent, the findings support CEU's complaint. Some of the evidence and findings that may be relevant to an issue in dispute in these proceedings, including UTS's motivation for making any of the decisions it made, can be summarised as follows: 1. CEU has a history of depression and anxiety (at [44)); 2. Ms Cheung, a Disability Support Officer in the Special Needs Service, gave evidence that CEU indicated that she did not need much assistance with exams or assignments and declined an offer to obtain reasonable accommodations while she was on clinical placement (at [69]); 3. Ms Cheung expressed concerns to her manager, Ms Edwards, "over the applicant's alcohol problems as a nursing student about to go on clinical placement, the applicant's fast speech and talking over her and the applicant's ticking consent boxes without thorough explanation, even when asked not to do so" (at [70]); 4. Ms Widjaja, a clinical psychologist and counsellor in the Counselling Service, within the University's Student Services Unit, gave evidence that on 21 May 2015 she raised with CEU the possibility of informing the Nursing Faculty about her problems with alcohol consumption and depression and that CEU then denied that she was drinking or taking medication for alcohol dependence (at [93]); 5. the Tribunal was satisfied that CEU was suffering from alcohol dependency, as diagnosed by Dr Cai, a general practitioner, on 21 April 2015 (at [119]); and 6. the Tribunal was not satisfied that a diagnosis of cognitive impairment was ever made by Ms Widjaja or communicated to Ms Edwards, the Acting Manager of the Special Needs Service (at [81]).

Consideration

CEU has attempted to articulate her case when making her complaint. UTS has responded in detail to that case and CEU has commented on that response. Despite all the material before me, it is not "apparent that the complaint lacks substance". CEU is likely to be able to prove that she has a disability and that UTS subjected her to various detriments. Whether one of the reasons for any of UTS's decisions was CEU's disability and/or her behaviour and whether that behaviour was a manifestation of a disability, a characteristic of a disability or had no connection with a disability, are all unanswered questions. Similarly the appropriate comparator for the purpose of the differential treatment part of the test for disability discrimination is also unclear.
That is not to say that CEU will be able to substantiate her complaint. The allegations about the decision to discontinue CEU's enrolment, and the decisions which led up to that decision, raise complex legal issues including: 1. the nature and extent of CEU's disability and whether CEU is submitting that any discrimination was on an existing disability, a manifestation of that disability or a characteristic that is imputed to a person who has her disability under s 49B(2); 2. the relevance, if any, of findings of fact made in CEU v University of Technology Sydney [2017] NSWCATAD 79; 3. whether the conduct about which CEU complains comes within s 49L(2) of the Anti-Discrimination Act; 4. in relation to the "differential treatment" part of the test for discrimination in s 49B(1)(a), the identification of the relevant comparator and the significance, if any, of the decision in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62, especially in light of the recent Queensland Court of Appeal decision in Woodforth v State of Queensland [2017] QCA 100; 5. in relation to the "causation" part of the test for discrimination in s 49B(1)(a), whether CEU's disability (however characterised) was at least one of the reasons for any of the decisions made by UTS about which she is complaining; and 6. the availability and appropriateness of any remedy CEU may claim if the complaint is substantiated.
This is not intended to be an exhaustive list, but it highlights the range and complexity of the legal issues in this case. In my view, it is fair and just for this complaint to proceed.
The decision to discontinue her enrolment is obviously a very significant one from CEU's point of view. I encourage her to obtain legal advice and, if possible, representation to assist her in formulating and articulating her case and providing relevant evidence and legal submissions. That will also ensure that UTS understands the nature of the complaint and has a reasonable opportunity to respond.

Orders Leave is granted for the Applicant's complaint of disability discrimination in education to proceed.

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: 09 November 2017

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