Chi v Technical and Further Education Commission [2007] FCA 925 | Case summary

REASONS FOR DECISION Introduction 1 In October 2005, the applicant Mr Chi lodged a complaint against the Technical and Further Education Commission (TAFE) with the Anti-Discrimination Board alleging race and disability discrimination and victimisation whilst he was enrolled at the TAFE, Sydney Institute, Ultimo College (Ultimo College). 2 On 6 November 2006, the President of the Anti-Discrimination Board declined the complaint as lacking in substance. On 1 May 2007, the Deputy President of the Administrative Decisions Tribunal (Tribunal) granted Mr Chi leave under s 96 of the Anti-Discrimination Act 1977 (AD Act) to proceed in the Tribunal in relation to a complaint of victimisation and a complaint of disability discrimination (the anti-discrimination proceedings): see the decision of Deputy President Hennessy in Chi v Technical and Further Education Commission [2007] NSW ADT 98. 3 The proceedings raise the following two issues for determination: (a) whether on 2 February 2005, Ms Siljanovic - who was at the time Head Teacher, Information Technology, Web Development at Ultimo College - engaged in impermissible victimisation of Mr Chi when she allegedly refused to allow him to enrol in certain modules because of a prior complaint made by him (the victimisation incident); and (b) whether on 3 February 2005, Ms Bennett - who was at the time Assistant Director, Educational Programs at Ultimo College - discriminated against Mr Chi on the ground of disability when, during a meeting with Mr Chi, she summoned TAFE security staff and allegedly instructed them to prevent Mr Chi from leaving her office and thereafter allegedly directed them to follow him off the campus. Heading 4 Mr Chi was born in Taiwan on 11 April 1957. He arrived in Australia in 1985. He was diagnosed with a number of psychiatric illnesses in 2000. Since 24 October 2005, Dr John Roberts has been his treating psychiatrist. In a report prepared in connection with these proceedings, Dr Roberts confirmed that Mr Chi's "symptomatology is consistent with an adjustment disorder with anxiety and depression arising as a result of circumstances". 5 Although not originally admitted by the respondent, for the purpose of the proceedings it was not in dispute that Mr Chi has a disability within the meaning of s 4(1) of the Anti-Discrimination Act 1977 (NSW) (AD Act), namely a depression and anxiety disorder for which he continues to receive psychiatric treatment. 6 At all material times, the respondent was constituted as a body corporate under the Technical and Further Education Commission Act 1990 (NSW) (TAFE Act), and an "educational authority" within the meaning of s 4(1) of the AD Act. At all relevant times, Ms Siljanovic and Ms Bennett were employed by the respondent under the TAFE Act. 7 In 2002 and 2003, Mr Chi enrolled in and completed a Certificate IV in Website Design at TAFE, North Sydney Institute, Crows Nest College (course number 3756), and a Diploma in Network Engineering at TAFE, Northern Sydney Institute, North Sydney College (course number 3664). 8 In February 2004, Mr Chi enrolled in a Diploma in Information Technology (Website Development) offered by the respondent at its Sydney Institute, Ultimo College (course number 3757). 9 From about March 2004, Mr Chi received counselling assistance at Ultimo College. In June 2004, he was referred to the Disabilities Unit for additional tutorial and other assistance. Thereafter, additional tutorial and other assistance was funded by the Disabilities Unit after confirmation by the Head Teacher Consultant, Ms Peta Smith, that Mr Chi had a disability. 10 During Semester 1 of 2004, Mr Chi studied three modules that made up the subject Web eCommerce Development A at Ultimo College, but failed. 11 On 19 July 2004, Ms Siljanovic provided Mr Chi with a proposed timetable for Semester 2 of 2004, and for Semester 1 of 2005. The modules for Semester 2 of 2004 included those for Web eCommerce Development A taught by Mr Dean Nguyen, a different teacher to the one who had failed him in Semester 1. The modules for Semester 1 of 2005 included those subjects called Web eCommerce Development B and Web Services. 12 According to an email from Ms Siljanovic to Ms Bennett dated 19 July 2004, Mr Chi had informed her that morning in the presence of his then counsellor Mr Lamas that "he was not ever coming back to Ultimo" and that he did not want to be taught again by the teacher whose modules he had failed in Semester 1. According to Ms Siljanovic's email, she had, at Ms Bennett's suggestion, sat with Mr Chi and worked out a timetable based on the repeat modules he needed to complete from Part A of the course, plus modules that he could commence in Part B. 13 Ms Siljanovic also advised Ms Bennett that Mr Chi had opted to attend the Saturday course in Web eCommerce Development A taught by Mr Nguyen (rather than the course taught by the teacher who had failed him in Semester 1 of 2004). Further, she had advised Mr Chi that one of the modules to be completed in Semester 1 of 2005 would be taught by the teacher whose modules he had failed. According to Ms Siljanovic'e email, Mr Chi said he would not listen to her "but would proceed with his complaints". 14 Mr Chi's evidence was that as this time he already had "some psychological injury from the time of [his] employment with Coles Supermarket and these further incidents upset [him] very greatly". 15 On 28 July 2004, Ms Siljanovic sent an email to a senior counsellor, Ms Gray, copied to Ms Bennett and Mr Lamas, advising inter alia that Mr Chi was not currently enrolled in Web eCommerce Development B and Web Services "because both these areas focus on a higher level of programming knowledge, the foundation of which is eCommerce Development A". Ms Siljanovic further advised that if Mr Chi were to enter the Web eCommerce Development B and Web Services classes, one of his teachers "would have to be" the teacher who had failed him in Web eCommerce Development A. Ms Siljanovic's understanding was that Mr Chi did not want that teacher to teach him again. Also, as the teacher's head teacher, Ms Siljanovic believed that it would be very stressful for the teacher to have to teach Mr Chi again since he had accused the teacher of "racism and of being a bad teacher". 16 In the meantime, Mr Chi's counsellor Mr Lamas was endeavouring to contact a person at the Randwick College of the TAFE Sydney Institute (Randwick College) to ascertain whether Mr Chi could be transferred there. Ms Siljanovic advised that "Randwick offers the course over one semester only". In other words, if Mr Chi successfully completed his studies at Randwick College, he would have completed all the requirements for the Diploma in Information Technology (Website Development) (course number 3757) in Semester 2 of 2004. 17 On or about 2 August 2004, Mr Chi lodged with the Department of Education and Training (DET) a form entitled "Suggestion or complaint form" dated 20 July 2004 and headed "SUBJECT: Complaint of unfair mark of my Ecommerce subject" (the August 2004 complaint). In the August 2004 complaint, Mr Chi alleged that he had "suffered a long period of discrimination and harassment" from his eCommerce teacher and "there was no solution" which he could get from his head teacher, Ms Siljanovic. The complaint referred inter alia to his "depression and anxiety" and to his "psychiatry treatment", as well as to his meeting with Ms Siljanovic and Mr Lamas on 19 July 2004 to discuss his results in eCommerce. It is of significance, in our view, that whilst the complaint contained numerous allegations about "the lack of teaching and extraordinary teaching style", it focussed on the issue of the unfairness of the mark of 42% awarded to Mr Chi in the eCommerce subject. Other than the reference to "a long period of discrimination and harassment", it made no allegation of discrimination on any particular ground such as race or disability. 18 On 10 August 2004, Mr Peddle, the director of the Sydney Institute responded to Mr Chi in relation to his complaint concerning the marking of his eCommerce subject, noting inter alia: (a) his examination in Web eCommerce Development A had been remarked twice, once by his class teacher and once by Mr Nguyen, another teacher in the section; (b) in response to Mr Chi's request for a third remark by an "independent assessor", his test had been forwarded to an another Institute to be remarked; (c) he had been advised that on 19 July 2004, the head teacher had formulated a special timetable of him based on the repeat modules needed to complete Part A of his course, plus the modules to commence Part B of the course; (d) arrangements had been made effective 11 August 2004 to provide Mr Chi with two hours per week tutorial support for Web eCommerce Development A and Advanced Networking; (e) in the interim, Mr Chi had transferred his enrolment to Randwick College. 19 On 18 October 2004, Ms Bennett wrote to Mr Chi referring to a meeting held on 22 September concerning his completion of the Diploma in Information Technology (Website Development), and confirming the agreement that to facilitate Mr Chi's course completion in Semester 2 of 2004: (a) his course enrolment would remain at Randwick College; (b) he would attend classes for all modules at Randwick College, with the exception of modules 3757A, 3757J and 3757P (the modules for Web eCommerce Development A); (c) he would attend at Ultimo College on alternate Saturdays for modules 3757A, 3757J and 3757P only (for which modules tutorial support would be funded by the Disabilities Unit); and (d) he might "elect to study the advanced eCommerce modules in semester 1 of 2005", but that these were not necessary for him to be course complete. 20 During Semester 2 of 2004, Mr Chi repeated the subject Web eCommerce Development A at Ultimo College, and passed. During that semester, Mr Chi also studied full-time at Randwick College. As at the beginning of 2005, four of his results from Randwick College were deferred, due to the late submission by Mr Chi of work. 21 On 31 January 2005, Mr Chi attended Ultimo College on enrolment day. Precisely what was said by whom is in dispute. However, it is tolerably clear that Mr Chi made clear to Ms Siljanovic at the very minimum that he wished to enrol in the subject eCommerce Development B taught by Mr Nguyen (modules 3757B, 3757H and 3757F). Whether he also expressed the desire to enrol in the subject known as Web Services at this meeting on 31 January 2005, or first at a subsequent meeting on 3 February 2005 is unclear. Having regard to the documentary record, we think it more probable that the question of enrolment in Web Services was first raised by Mr Chi on 3 February 2005. In any event, the meeting between Ms Siljanovic and Mr Chi on 31 January 2005 concluded with Ms Siljanovic indicating that Mr Chi should wait for an email from her before coming in again to enrol. 22 On 31 January 2005, Ms Siljanovic sent an email to Ms Peta Smith of the Disabilities Unit, copied to amongst others Ms Bennett, confirming that she had met that day with Mr Chi with Mr Terry Turner in attendance, and that Mr Chi had four deferred results listed on his record from Randwick College. If Mr Chi passed all those subjects, he would be course complete. Ms Siljanovic continued: "Naturally this does not suit Johny as he still wishes to study with Dean Nguyen this semester. I believe TAFE policy now is that a student may attend to complete modules more than once - but that two unsuccessful attempts are the limit. Basically I would allow Johny to attend with us to do 3757B, 3757H and 3757F again - BUT only if you have the funds to be able to support him during the semester" …. 23 In an email sent later on 31 January 2005 to, inter alia, Ms Smith and Ms Bennett, Ms Siljanovic noted that she was proposing to offer Mr Chi "to do 3757B, H and F again to keep the peace - however he will be offered group tutorial support only by the Disabilities section". 24 On 1 February 2005, Ms Siljanovic sent an email to Mr Chi, thanking him for coming in the previous day, and confirming that she had since ascertained that students "may satisfactorily complete modules up to a maximum of two times", and that she was happy to provide a place for him to study the following eCommerce modules with Mr Nguyen: (a) 3757B Ensure Dynamic Website Security (for which his result was then currently deferred from Randwick College); (b) 3757H Configure Payment Gateway (for which his result was then currently deferred from Randwick College); (c) 3757F Translate Business Need into Technical Requirements (for which his result from Randwick College was pass status). 25 Collectively, these subjects comprised the subject known as ecommerce Development B. 26 On 1 February 2005, Ms Smith sent an email to inter alia Ms Siljanovic advising as follows: "Well done to all if he is successfully completed his course in 2004 (with late marking in 2005) While I commend Johny for his interest in successfully reviewing his successful modules I can not justify individual tutorial support from the disability budget supporting students who are course complete. … He is welcome to attend group tutorials … That is the best I can offer in the circumstances …" 27 On the afternoon of 2 February 2005, Mr Chi again attended at Ultimo College to meet with Ms Siljanovic to discuss his enrolment. The meeting was also attended by a TAFE counsellor, Mr Gollan. What occurred at this meeting is disputed, and is the subject of the victimisation complaint. The differing accounts of what occurred are considered further below. In essence, it is not disputed that Mr Chi expressed the desire to enrol in the subject known as Web Services. Nor is it disputed that Ms Siljanovic told Mr Chi several times during the meeting that he did not need the three modules in that subject in order to be course complete. Nor is it disputed that the meeting was concluded by Ms Siljanovic confirming that she would organise a meeting the following day with Ms Bennett to discus Mr Chi's desire to study Web Services. 28 As at Semester 1 2005, the only teacher allocated to teach Web Services was the teacher who had failed Mr Chi in eCommerce Development A in Semester 1 of 2004. Mr Chi's evidence was that at the meeting Ms Siljanovic said to him words to the effect: Johny you know the reason why we would not allow you to enrol in "Web Service" is because you complained about your teacher …Do you remember that … [She] will be your teacher." 29 Both Ms Siljanovic and Mr Gollan gave evidence that Ms Siljanovic said no such thing at the meeting on 2 February 2005. Mr Chi's evidence was to the effect that notwithstanding the identity of the teacher who would be teaching the modules, Mr Chi made it known to Ms Siljanovic that he wished to enrol in the subject. 30 The three modules collectively known as Web Services were:

31 The course outline document for the Diploma in Information Technology (Website Development) taught at Ultimo College indicated that the course consisted of 20 core modules and two elective modules. Group 1 - the core modules - was described as providing "a robust base of knowledge and skills for this qualification". Group 2 consisted of 22 elective modules, two of which were required to be completed. Group 3 consisted of some four enrichment modules which were not necessary in order to be course complete. 32 Mr Chi had been given an exemption from the core module 3756B - Develop website information architecture. The evidence of Ms Siljanovic and Mr Gollan - accepted by Mr Chi's counsel - was that students who had completed a Certificate IV in Information Technology (Website Design) were exempt from studying this core module as they had already attained the necessary competency. Mr Chi had completed his Certificate IV at TAFE - North Sydney Institute. 33 Later on 2 February 2005, Ms Siljanovic sent an email to amongst others Ms Bennett in relation to the meeting that afternoon with Mr Chi which had also been attended by Mr Gollan. The email provided, inter alia: "… Should Johny pass his four DRs from Randwick he will be course complete now. … Johny is now no longer satisfied with only repeating the three modules on Friday evening with Dean. He demands also to attend Web Services classes where the modules are electives only. There are two web Services classes. Both are taught by Deb McHugh. Johny stated very strongly to a counsellor and to Bronwyn in my presence that he never wanted to see this teacher again. He also accuses her of racial discrimination. I informed Johny that it would not be a good experience for him to attend the Web Services class with a teacher he does not like and has accused to racial intolerance Deb McHugh is an excellent, new fulltime teacher ... I can guarantee that she would be extremely agitated and stressed if she had to teach Johny again .... I abandoned the enrolment process and asked him to see you again tomorrow." 34 On 3 February 2005, Mr Chi met with Ms Siljanovic and Ms Bennett in Ms Bennett's office at the Ultimo College. Again, what transpired at this meeting is disputed, and the events are the subject of the disability discrimination complaint. The differing accounts of what occurred at the meeting are considered further below. 35 In essence, however, it is not disputed that Mr Chi again expressed the desire to enrol in the subject known as Web Services. Ms Siljanovic and Ms Bennett confirmed to him that the subject was an elective, and he did not need it in order to be course complete. However, they advised him that if he wished, he might again enrol in a subject he had completed at Crows Nest College in Semester 2 of 2003, an introductory course in the subject known as XML. The elective module in Web Services 3765A - Build a Doc using Extensible Mark-Up Lang (XML) - was predicated on an existing knowledge of XML. 36 What occurred thereafter is unclear. In any event, Ms Bennett pressed the duress alarm, and the College's security guards attended at her office. The security guards waited outside Ms Bennett's room for a short time. When Mr Chi left Ms Bennett's room, they followed him from the campus. Mr Chi ran to Surry Hills police station and reported the incident. 37 On 7 February 2005, Mr Chi met with Ms Bennett, Ms Siljanovic and Mr Paul Colwell from the Counselling and Careers Unit. Ms Bennett and Ms Siljanovic again declined to accede to Mr Chi's request to enrol in the Web Services subject, (3756B, 3765A and 3757AB), and repeated the offer to him to enrol in the subject XML. 38 On 7 February 2005, Ms Bennett wrote to Mr Chi referring to his "demand" to enrol in an additional three elective modules (3756B, 3765A, 3757AB), confirming that he had already passed more than the required number of elective modules to be course complete. Despite the TAFE NSW Revision of Student Selection Policy (ES1/00022) that in general students should not be re-enrolled in a course or module which they had already completed, Mr Chi would be permitted to enrol in modules for which he had results pending from Randwick College (3757B and 3757H), and also in the module 3756Y (Complex Mark-up Language Documents) which he had passed at Crows Nest in Semester 2 2003 (that is, the introductory XML course). 39 The evidence of Mr Colwell was that he took the opportunity to discuss the contents of Ms Bennett's letter of 7 February 205 with Mr Chi, and following that discussion Mr Chi agreed to accept enrolment in the subjects set out in that letter. 40 In 2005, having completed the core modules and a sufficient number of elective modules, Mr Chi was awarded a Diploma in Website Development. 41 On 4 October 2005, Mr Chi lodged a complaint with the Anti-Discrimination Board (ADB). The gravamen of Mr Chi's complaint was that he was the only student singled out for the subject Web Services to be elective and not compulsory. 42 On 6 November 2006, the President of the ADB declined the complaint as lacking in substance. On 1 May 2007, the Deputy President of the Administrative Decisions Tribunal granted Mr Chi leave under s 96 of the AD Act to proceed in the Tribunal in relation to a complaint of victimisation and a complaint of disability discrimination: see the decision of Deputy President Hennessy in Chi v Technical and Further Education Commission [2007] NSW ADT 98. Factual matters in dispute: the victimisation incident 43 Mr Chi alleges that on 2 February 2005, Ms Siljanovic refused to allow him to enrol in certain courses. He alleges that she so acted on the ground that he had made the August 2004 complaint and that, in the premises, the respondent contravened s 50(1)(c) of the AD Act. 44 In his written submissions, Mr Chi submits that the real reason for refusing to enrol him in the course was that Ms Siljanovic wished to "shield" her from teaching a student who had complained about her being racist, and that he suffered various detriments as a result of having made a complaint of racial discrimination. 45 Ms Siljanovic' evidence in relation to this incident during his enrolment on 2 February 2005 was as follows: (a) she had prepared a timetable for Mr Chi which set out the modules he needed to complete in Semester 1 of 2005 in order to obtain his Diploma; (b) Mr Chi had previously indicated to her that it was his desire to be course complete in the shortest amount of time available; (c) the Web Services modules in which Mr Chi wished to enrol (3756B, 3765A and 3757AB) were: (i) a module from which Mr Chi had an exemption (module 3756B); (ii) an elective module (module 3765A), and Mr Chi had already completed more than sufficient elective modules to satisfy the requirements of the diploma; and (iii) an enrichment module (module 3757AB) that did not count towards course completion; and (d) she repeatedly explained to Mr Chi that it was not necessary for him to undertake the Web Services modules to be course complete. Notwithstanding her explanations, Mr Chi would not accept that it was not necessary for him to undertake these modules to be course complete. It was in these circumstances that Ms Siljanovic placed Mr Chi's enrolment process on hold pending him making an appointment to see Ms Siljanovic's supervisor, Ms Bennett. 46 Accordingly, the respondent disputed that Ms Siljanovic refused to allow Mr Chi to enrol in the Web Services modules. Rather, when Mr Chi was unprepared to listen to her explanation that it was unnecessary for him to enrol in those modules for the purposes of completing the diploma, she indicated to him that it would be necessary to elevate the matter to Ms Bennett for further discussion. 47 Ms Siljanovic's evidence was that she did not act in the manner she did on 2 February 2005 because Mr Chi had previously made complaints about Ms McHugh, and in particular because he had made a complaint on 2 August 2004. Her evidence was that as at 2 February 2005 she was unaware that Mr Chi had made a complaint to DET on 2 August 2004. 48 Mr Chi pointed to the fact that a prior proposed program of study prepared by Ms Siljanovic had foreshadowed him studying Web Services modules in Semester 1 of 2005. However, the respondent contended that Mr Chi had not accepted that proposed program of study, and that it thereby became redundant, and was overtaken by Mr Chi's decision to enrol at Randwick College in Semester 2 of 2004. Factual matters in dispute: the disability discrimination incident 49 On 3 February 2005, Mr Chi met with Ms Bennett in her office at Ultimo College, and discussed his enrollment for 2005. Mr Chi alleges that Ms Bennett was aware that he had a disability and that she was aware of the nature of the disability. The respondent admits that Ms Bennett had knowledge of the fact that Mr Chi had received tutorial support and that this support had been funded by the respondent's Disabilities Unit, but otherwise denies these allegations. 50 During the discussion between Ms Bennett and Mr Chi, Ms Bennett summoned security staff by pressing a button. There is no dispute that the security staff were summoned. However, the respondent says that Ms Bennett summoned them because Mr Chi had begun to shout at her, had stood from his seated position, was waving his arms about in an intimidatory manner. Ms Bennett's evidence was that she pressed the duress alarm because Mr Chi was behaving in "an aggressive and intimidating manner and she felt threatened". 51 The respondent says that in the same or similar circumstances, Ms Bennett would have acted in exactly the same manner regardless of whether or not the person with whom she was talking had a "disability". 52 Mr Chi'e evidence was that when the security staff arrived, Ms Bennett instructed them to prevent him from leaving her office, and that when he sought to leave the office, Ms Bennett and the security staff at her direction attempted to prevent him from doing so. According to Mr Chi, Ms Bennett then directed the security staff to follow him as he left the campus of Ultimo College. The respondent denies each of these allegations. 53 Mr Chi alleges that one of the reasons Ms Bennett so acted was his disability, that in so acting she treated him less favourably than she would have treated a person who did not have his disability in the same circumstances or in circumstances which were not materially different and that, in the premises, the respondent contravened s 49L(2) of the AD Act. Each of these allegations is denied by the respondent. Relevant legislative provisions: the victimisation complaint 54 Section 50(1) of the AD Act provides relevantly: "(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: … (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act …" 55 Section 53(1) of the AD Act provides in relation to the liability of principals and employers that: "(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act." 56 The respondent admits that for the purpose of the proceedings, the acts of Ms Siljanovic can be taken to have been done by the respondent by virtue of s 53(1), but denies that the acts of Ms Siljanovic amounted to a contravention of the AD Act. Relevant legislative provisions: the disability discrimination complaint 57 Mr Chi's disability discrimination complaint is one of direct discrimination. Section 49B(1)(a) provides relevantly : "(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability …., the perpetrator: (a) 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 …" 58 Mr Chi relies on s 49L(2)(c) of the AD Act. Section 49L(2) provides relevantly: "(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." 59 In this connection, it is also relevant to note s 4A of the AD Act, which provides: a) "4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason." 60 Section 4A is not expressed as applying to complaints of victimisation. 61 Finally, again the respondent admits that for the purpose of the proceedings, the acts of Ms Bennett can be taken to have been done by the respondent by virtue of s 53(1), but denies that the acts of Ms Siljanovic Bennett amounted to a contravention of the AD Act. The victimisation complaint: findings 62 Section 50 of the AD Act was considered at some length by the former Equal Opportunity Tribunal in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at page 78, 986. The approach in Shaikh has been affirmed by the Tribunal on numerous occasions: for example, Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60; D v Berkeley Challenge Pty Ltd [2001] NSWADT 92; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40]; Hunt v Rail Corporation of New South Wales [2007] NSW ADT 152 at [179]. 63 In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 the Appeal Panel at [8] cited Shaikh as authority of the proposition that four elements must be satisfied before a complaint of victimisation can be substantiated: (a) first, the complainant must have done one of the things listed in s 50(1)(a) to (d); (b) second, the respondent must have caused the complainant to experience something; (c) third, the complainant must have suffered some consequential "detriment"; (d) fourth, that detriment must have occurred " on the ground that " the complainant did one of the things listed in s 50(1)(a) to (d). The element under consideration in Nicholls was this fourth element, causation.

Causation: "on the ground that" 64 We turn first to consider the fourth of these elements, that of causation. 65 In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [43] the Tribunal considered the issue of causation for the purposes of s 50(1) of the AD Act. The Tribunal noted that Kirby J had considered the issue in IW v City of Perth (1997) 191 CLR 1 at 62-64 when discussing the provisions of the West Australian Equal Opportunity Act 1984. The Tribunal adopted the language of Kirby J at 64. "We adopt his language: it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of race discrimination, "had a real causative effect in the sense that but for its presence the act complained of would not have occurred." 66 Referring to this passage from Sivananthan, the respondent submitted in relation to causation that there was a wholesale absence of a real causative effect, and that the Tribunal would accept that Mr Chi was not enrolled in the Web Services modules (which were not necessary for course completion) on 2 February 2005 for the reasons identified by Ms Siljanovic, referred to in paragraph 41 above. 67 It is significant, however, that two years after the Tribunal handed down its decision in Sivananthan, the High Court again considered the test of causation in relation to complaints of discrimination. In Purvis v State of New South Wales (2003) 217 CLR 92 a student with brain damage was excluded from a high school because of aggressive behaviour including hitting and kicking. The case involved the interpretation of the words 'because of' which appear in the Disability Discrimination Act 1992 (Cth) (DDA) (the equivalent statutory expression in the AD Act is "on the ground of". The High Court confirmed that the test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus was on the "true basis", the "genuine basis" (Gleeson CJ at 102), or the "real reason" (per McHugh & Kirby JJ at 144) for the treatment. 68 In a joint judgement with McHugh J in Purvis (in which they dissented in the result), Kirby J re-visited the passages in IW v City of Perth (1997) 191 CLR 1 at 143 which referred to the "but for" test of causation. Their Honours noted that the "weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation". In their joint judgement in Purvis Gummow, Hayne and Heydon JJ made no reference to the "but for" test, but instead adopted a "true basis" test. Their Honours observed: "For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of"." 69 In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 the Appeal Panel at [28] concluded that "The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant." 70 The Appeal Panel next considered the meaning of the expression "on the ground of" in victimisation complaints under s 50(1) of the AD Act in light of the High Court's decision in Purvis. In particular, the Appeal Panel considered whether the fact that s 4A of the AD Act is not expressed to apply to complaints of victimisation means that "on the ground of" should be given a different meaning in s 50. The Appeal Panel noted that in Penhall-Jones v State of New South Wales [2007] FCA 925 Buchanan J gave the words a different meaning. I atht case, his Honour held at [69] that s 10 of the DDA (the equivalent to s 4A of the AD Act) did not affect the meaning of s 42 (the equivalent of s 50 of the AD Act). In particular, his Honour rejected the submission that s 10 established any proposition that existence of one of the conditions for the engagement of s 42 might be an insubstantial reason. Buchanan J stated the test of causation in victimisation complaints under the DDA as follows: ". . the ground or reason relied upon to establish a breach of the relevant legal obligations need not be the sole factor but it must be a substantial and operative factor . . . It must afford a rational explanation, at least in part, 'why' an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation." 71 In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 the Appeal Panel noted that the Federal Court has applied the same test in relation to the victimisation provision in the Sex Discrimination Act 1984 (Cth) in Obieta v NSW Department of Education & Training [2007] FCA 86 at [240]; see also Huang v University of NSW [2008] FMCA 11 at [120]. The Appeal Panel continued at [33]: "In our view, Buchanan J's observation that the ground or reason 'must afford a rational explanation, at least in part, "why" an action was taken' is correct. The formulation of the test in that way is consistent with the High Court's formulation of the test for causation in discrimination complaints in Purvis . However, by requiring that the reason must be 'substantial' Buchanan J formulated a different test from that in discrimination complaints. The point of difference is that even if a reason was one of the grounds for imposing the detriment, a victimisation complaint will not be substantiated unless that reason is a 'substantial' reason." 72 The Appeal Panel concluded at [36]-[37] as follows: "36 …. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision. 37 Conclusion. Throughout its reasons, the Tribunal applied the 'but for' test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. …" 73 In the present case, it was submitted on behalf of Mr Chi that the real reason or, at the very least, a real and substantial reason for the refusal was that Mr Chi had lodged a complaint alleging racial discrimination against the teacher who would be teaching the Web Services modules (emphasis added). In his affidavit, Mr Chi deposed that at the meeting Ms Siljanovic said to him words to the effect: "Johny you know the reason why we would not allow you to enrol in "Web Service" is because you complained about your teacher …Do you remember that … [She] will be your teacher." 74 In her affidavit filed in the proceeding, Ms Siljanovic denied saying any such thing to Mr Chi. Her evidence was that she said words to the effect: "DS: You have told me you never want to see that teacher again. JC: Change the teacher. DS: I can't, she is the only one who teaches those subjects this semester. JC: I must learn that subject. You are denying me an education." 75 That Ms Siljanovic was concerned to avoid Mr Chi studying with teacher by whom he had said in the past that he did not wish to be taught again consistent with her e-mails of 28 July 2004 and 2 February 2005. Her e-mail of 28 July 2004 provided in part: "If Johny does enter the eCommerce Dev B and Web Services classes, then one of his teachers would have to be Deb McHugh. My understanding is that Johny does not want Deb to teach him again. Also, I would have to say as Deb McHugh's head teacher, I believe it would be very stressful for her to teach Johny since she has been accused by him of racism and of being a bad teacher." 76 Her e-mail of 2 February 2005 provided in part: "there are two web Services classes. Both are taught by Deb McHugh. Johny stated very strongly to a counsellor and to Bronwyn in my presence that he never wanted to see this teacher again. He also accuses her of racial discrimination. I informed Johny that it would not be a good experience for him to attend the Web Services class with a teacher he does not like and has accused to racial intolerance. Deb McHugh is an excellent, new fulltime teacher ... I can guarantee that she would be extremely agitated and stressed if she had to teach Johny again .... " 77 On behalf of Mr Chi it was submitted that the weight of the evidence was that the reason he could not enrol in the Web Services modules was that he had made a complaint against the teacher. It was, it was submitted, implausible to suggest that the real reason that Ms Siljanovic would not enrol him because he was course complete. It was further submitted that the failure of Ms Siljanovic to be candid on this issue reflected more broadly on her credit, as she has been prepared to give false evidence and to make admissions only when faced with her own e-mails to the contrary. 78 On balance, we do not accept Ms Siljanovic's evidence that as at 2 February 2005 she was unaware that Mr Chi had made a complaint to DET on 2 August 2004. The response to Mr Chi dated 10 August 2004 by Mr Peddle, the director of the Sydney Institute, in relation to his complaint concerning the marking of his eCommerce subject, suggest that Mr Chi's head teacher, Ms Siljanovic was consulted in relation to the response. It follows that Ms Siljanovic was probably aware of the existence of a formal complaint by Mr Chi. It does not, however, follow that she was aware of the precise allegations made in the complaint. Indeed the fact that her emails refer to allegations of racial discrimination and racial intolerance, in circumstances where the formal complaint made by Mr Chi on 2 August 2004 contained no such allegation (focussing instead on "the lack of teaching and extraordinary teaching style") strongly suggest that her knowledge of Mr Chi's hostility towards and allegations against the teacher did not emanate from the 2 August 2004 complaint. 79 Nor does it follow from her professed unawareness of the 2 August 2004 complaint that we regard Ms Siljanovic as a witness of little credit, or accept the characterisation of her evidence as "false". To the contrary, Ms Siljanovic impressed us as a witness of candour who made genuine attempts to accommodate a student who presented particular challenges in terms of timetabling and required tutorial, counselling and other assistance. 80 It is clear from her evidence in the proceedings and from the various emails referred to above that Mr Chi had made it clear to Ms Siljanovic on numerous occasions that he harboured intense feelings of dislike towards the teacher, had previously expressed the view that he did not wish to be taught by her again, and had made accusations of racial intolerance and racial discrimination against her. I It is therefore unsurprising that Ms Siljanovic later expressed some apprehensions about Mr Chi being a student in classes taught by that teacher. Indeed in her affidavit, Ms Siljanovic freely admits that she said to Mr Chi at the meeting on 2 February 2005 that it would "not be a good experience to undertake a course with a teacher he did not like". 81 That Ms Siljanovic was also concerned that a new teacher might be agitated and stressed to have to teach a student again about whom he had previously expressed such strong dislike and accused of racial intolerance is also unsurprising. That as head teacher she was concerned to avoid this situation in circumstances where the student concerned was already course complete is, in our view, not only unsurprising but entirely appropriate. As Gleeson CJ pointed out in Purvis v New South Wales (2003) 217 CLR 92 at [7], it is important to maintain coherence in the law by ensuring that the obligations arising from anti-discrimination legislation are construed having regard to the functions, powers and responsibilities of the alleged discriminator. In particular Gleeson CJ said that: "If there is a reasonable construction of the Act, which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind." 21 These principles were applied in Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 in relation to a complaint of disability discrimination; see also St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4 at [20]. 82 In cross-examination, Ms Siljanovic did not accept that she offered Mr Chi subjects that he had already done in order to "keep the peace". However, her e-mail of 31 January 2005 to Ms Bennett confirmed that that was at least part of her reason. However, in our view, this does not reflect adversely on her credit. Nor does it follow offer was "a way of fobbing Mr Chi off and discouraging him from enrolling at all." To the contrary, despite the fact that if he had successfully completed the courses he had enrolled in at Randwick College, Mr Chi would have been course complete, Ms Siljanovic was prepared to allow him to enrol again in the subject eCommerce Development B with Mr Nguyen, a teacher with whom he wished to study further, as well as in the subject XML. 83 Further, Ms Siljanovic's evidence in cross-examination, which we accept, is that Mr Chi had "struggled throughout his studies", and for him to assume the burden of the additional (unnecessary) modules in Web Services "would prove very taxing for him" and "would delay his goal of becoming course complete in the shortest amount of time available". This was because he would be assuming an additional burden of extra modules, which were modules that he did not need to complete to be course complete. 84 We also accept the evidence of Ms Siljanovic in relation to budgetary constraints impeding the capacity of students to do more than the required minimum number of modules. In cross-examination, her evidence was as follows: "Q. Although there was a minimum number of subjects to complete, students could do more than the required minimum, couldn't they? A. No, we have budget, very severe budget restrictions and we are audited on completions. We get severe reprimands from VTAB (?) if we are shown to be over completing. Q. But if students want to do more modules and they need to be course complete, TAFE allows them to do that doesn't it? A. No. A. I don't think so, no. We allow people to repeat their training if they had failed." 85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences of discrimination: (a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts; (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. 86 In our opinion, such considerations are equally applicable to drawing inferences of victimisation. In the instant case, of particular pertinence is the consideration that an inference cannot be made where more probable and innocent explanations are available on the evidence. 87 On the evidence before us, we are not satisfied that Mr Chi's complaint of 2 August 2004 was the "true basis" or "genuine basis" or "real reason" Mr Chi's enrolment was placed on hold on 2 February 2005, and the matter elevated to Ms Bennett for further discussion. Whilst we do not accept that Ms Siljanovic was unaware of the August 2004 complaint, we are satisfied, on balance, that there is a more probable and innocent explanation for her acts. In our view, there was a combination of reasons for Ms Siljanovic actions. These include Mr Chi's previous hostility towards the teacher concerned, as well as the imminence of his course completion, concern for the teacher involved, and concern for a student who had in the past received counselling, tutorial and other assistance. We are not satisfied that the fact of the 2 August 2004 complaint was a real, let alone dominant or substantial reason, reason for why Mr Chi was treated as he was on 2 February 2005. 88 Finally in relation to causation, we note the respondent's submission that where the evidence of TAFE witnesses conflicted with that of Mr Chi, the Tribunal would prefer the evidence of TAFE witnesses. In particular, the respondent submitted that "Mr Chi's evidence was characterised by an unwillingness to answer directly the questions put to him, inaccuracies in his evidence and a preparedness to embellish matters to advance his own cause". We do not accept such a general characterisation of Mr Chi's evidence. It is true that on a number of occasions the Tribunal directed Mr Chi to address his mind (and answers) to the questions that were being put to him in cross-examination. However, in our view, the necessity for such directions arose from Mr Chi's occasional state of agitation whilst giving evidence in relation to the events the subject of his complaints, and did not reflect any view taken by the Tribunal in relation to his candour or credit. It is pertinent to recall in this regard that Mr Chi suffers from an anxiety disorder for which he receives psychiatric treatment. 89 Likewise, it is true, as the respondent contended, that a number of references in Mr Chi's affidavit filed 20 June 2008 to exhibits turned out to be erroneous. An entirely plausible explanation for such slip-ups is representative error, or a lapse of attention on Mr Chi's part in settling his affidavit. Again, these matters do not in our view reflect adversely on Mr Chi's candour or credit. Nor do they establish a preparedness to depose to matters that are "inaccurate in an attempt to visit the serious, but ultimately erroneous, allegation of victimisation upon Ms Siljanovic". We do not accept that Mr Chi was deliberately inaccurate in the evidence he gave. Rather, as noted above, it was apparent in much of the evidence Mr Chi gave orally that he remained agitated and distressed in relation to the events the subject of the proceedings. We find no lack of sincerity in the perception of Mr Chi that his complaint of 2 August 2004 the real reason for Ms Siljanovic's actions on 2 February 2005. 90 Accordingly, we do not accede to the respondent's sweeping submission that the evidence of the TAFE witnesses would be generally preferred. In relation to the events that took place on 2 February 2005, however, we have concluded that Mr Chi has failed to establish the necessary causal relation between his complaint to DET on 2 August 2004 and the placement on hold of his enrolment on 2 February 2005. 91 Consequently, it follows that the victimisation complaint must fail.

Chi v Technical and Further Education Commission

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