Coomaraswamy v University of New South Wales - [2016] NSWCATAD 41 - NSWCATAD 2015 case summary — Zoe

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Coomaraswamy v University of New South Wales

[2016] NSWCATAD 41

NCAT Administrative and Equal Opportunity|2015-11-17|Before: Schmidt J

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2015-11-17

Before

Schmidt J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Introduction

Mr Coomaraswamy is a man in his late sixties of Sri Lankan background, who was training to be a Maths teacher. He was enrolled as a student at the University of New South Wales. On 19 March 2014, Mr Coomaraswamy complained to the President of the Anti-Discrimination Board that he had been discriminated against on the ground of his race, age and disability (sleep apnoea).
Mr Coomaraswamy makes wide ranging allegations about the conduct of eleven people: five employed by the University and six employed by High Schools where Mr Coomaraswamy was placed. I have not addressed allegations against any teachers at those schools in these reasons because they are not employees of the University.
The conduct which Mr Coomaraswamy alleges against employees of the University can be summarised as follows: 1. teaching staff refused to provide him with adequate assistance and support to enable him to complete his studies; 2. teaching staff failed to provide him with adequate assistance and support to enable him to undertake his practicum placements; 3. his enrolment at the University was terminated; 4. teaching staff made derogatory comments about his English language skills; and 5. the University failed to adequately investigate his complaints and give proper consideration to the evidence he provided in support of his appeal from the University's decision to terminate his enrolment.
The President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). The issue in this case is whether it is fair and just for the Tribunal to give Mr Coomaraswamy permission (or "leave") for his complaint to go ahead: Anti-Discrimination Act, s 96. Mr Coomaraswamy bears the onus of persuading the Tribunal that leave should be granted. I have decided not to give Mr Coomaraswamy permission for his complaint to go ahead because there is no direct evidence, nor any basis for drawing an inference, that his race, age or disability was a reason for any of the University's decisions or for the way he was treated.

[3]

Background

Mr Coomaraswamy was enrolled in a Masters of Teaching (Secondary) degree at the University from the start of 2012 to July 2013. His academic record shows that he undertook numerous subjects during semesters 1 and 2 of 2012 and undertook one subject in semester 1 of 2013. His current academic status is "probation". In the second semester of 2012 Mr Coomaraswamy was enrolled in a course called "Professional Experience 2" (PE 2). For that course all candidates were required to satisfactorily complete a 4 to 6 week practical teaching placement at a high school.
Mr Coomaraswamy first attempted PE2 in second semester of 2012. His placement was at Broughton Anglican College. He was given an "unsatisfactory" rating by a supervising teacher from the College. This assessment was supported by the University's own observation of Mr Coomaraswamy's teaching. As a result he received a grade of "not completed" for the PE 2 course in semester 2 of 2012. The Tribunal has previously refused Mr Coomaraswamy permission to go ahead with a complaint of discrimination relating to that placement: Coomaraswamy v Campbelltown Anglican Schools Council [2015] NSWCATAD 271.
As a result of his unsatisfactory performance in the first attempt of PE2, the University identified him as a student at risk of failing and implemented an action plan to give him additional time in the classroom. This action plan included the University arranging for Mr Coomaraswamy to undertake a teaching assistant role at MacArthur Girls High School in March 2013. Following satisfactory completion of his teaching assistant role, the University allowed Mr Coomaraswamy to re-enrol in PE 2 and undertake another practical teaching placement in semester 1 of 2013. That placement took place at Castle Hill High School. His supervising teacher gave him an "unsatisfactory" rating for this placement. That assessment was supported by the University's own observation of Mr Coomaraswamy's teaching. The Tribunal has previously refused Mr Coomaraswamy permission to go ahead with a complaint of discrimination relating to that placement: Coomaraswamy v NSW Department of Education [2016] NSWCATAD 40.
As a result, Mr Coomaraswamy received a grade of "fail" for the PE2 course in semester 1 of 2013 and was informed that he would not be permitted to re-enrol.

[4]

Substantive provisions

The substantive provisions on which Mr Coomaraswamy relies prohibit discrimination by "educational authorities" against "students": Anti-Discrimination Act, s 17(2), s 49L(2) and s 49ZYL(2). For example, s 17(2) provides that: (2) It is unlawful for an educational authority to discriminate against a student on the ground of race: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment.
The University is an educational authority: Anti-Discrimination Act, s 4.
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 Mr Coomaraswamy can prove in relation to the other five broad allegations, that the University has "expelled" him or subjected him to "any other detriment" he then needs to establish that the treatment was on the ground of his race (s 7(1)), age (s 49ZYA) or disability (s 49B). Each of these provisions is in similar terms. Section 7(1) provides that: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person" ) on the ground of race if the perpetrator: (a) on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or (b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, 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. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
I understand Mr Coomaraswamy's complaint to be one of direct race, age or disability discrimination as defined in s 7(1), s 49B(1) and s 49ZYA(1).
In order to substantiate a complaint of direct discrimination Mr Coomaraswamy would have to prove that: 1. he is of a particular race and age and that he has a disability as defined in the Anti-Discrimination Act; 2. the University expelled him or subjected him to a detriment; 3. that treatment was less favourable than the treatment that was or would have been afforded to an actual or hypothetical younger person, a person of a different race or 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 his race, disability or age (causation).

[6]

Expulsion or being subjected to a detriment

I accept for the purpose of this decision that allegations 1, 2, 3 and 5 set out above constitute a detriment. Mr Coomaraswamy is unlikely to be able to prove the fourth allegation, that teaching staff made derogatory comments about his English language skills. Even if he can, the alleged comments are unlikely to be regarded as a detriment.
In an email to Mr Coomaraswamy on 12 March 2013, Professor Davison advises him that the University had agreed for him to enrol again in PE 2 but that he would have to achieve a satisfactory result before he would be permitted to continue with his course. In the email Professor Davison also wrote: You also have indicated that you will pay careful attention to your language and ensure that you write clearly and carefully so that you avoid careless mistakes in spelling and grammar at all times, especially on the board and on lesson plans and students work.
Mr Coomaraswamy interpreted this email as being harassing: Professor Christine Davison harassed me even after I had been allowed to repeat PE2 by emailing me that I am not allowed. When I went to see her to ask why she told ha (sic) I did not know you are good in your English but your emails to her contained spelling mistakes.
I assume that Mr Coomaraswamy is alleging that Professor Davison told him that his English was good but that his emails to her contained spelling mistakes. I am not satisfied that pointing out that a student's emails or other written material contains spelling mistakes and that the student should pay careful attention not to make mistakes in the future, is a "detriment." It is apparent that Professor Davison was doing nothing more than providing Mr Coomaraswamy with feedback. The feedback was not given in a derogatory way. It certainly did not reach the level of being in an environment 'poisoned by harassment': A v Director-General, Department Education and Training [2008] NSWSC 1091 (17 October 2008). Neither was any criticism on the ground of Mr Coomaraswamy's race, age or disability.

[11]

Termination of his enrolment

The University submitted that the decision to terminate his enrolment was taken on the basis of his unsatisfactory performance in the course. Details are set out in the President's report at p 406 - 407. His performance was assessed as being unsatisfactory by two teachers from two different High Schools. These decisions were verified by two different observers from the University. The University has provided evidence of the way Mr Coomaraswamy was assessed by University staff including the Lesson Observation Feedback Form for University Liaison (President's report p 38 -40). The comments and conclusions in that document were supported by the Supervising Teacher at Castle Hill High School.
In the Lesson Observation Feedback Form, completed by an observer from the University, the following comments were made: 1. "You need to ensure your preparation is done well in advance." 2. "Your explanations and questioning are very unclear - you need to plan these in advance." 3. "Mohan, although there is some improvement in your planning and awareness of the need to proof your lessons and material for mistakes, your knowledge and skills especially in terms of pedagogy, student engagement and classroom management are way below the expected standards."
In the Professional Experience Final Report the Supervising Teacher made the following comments: 1. "Limited knowledge of even the most basic mathematical processes." 2. "Believed that his lessons were highly satisfactory even after criticism." 3. "Many students disengaged. Poor directions meant students did not know what to do." 4. "No initiative to ask questions, observe others." 5. "Mohan struggled with preparation, delivery and evaluation of lessons. His ICT (Information and Communication Technology) skills were poor. Rapport with students was unsatisfactory. Highly defensive when his abilities were questioned by both staff and students." (Words in brackets added.)
In an email dated 15 June 2013, Professor Davison formally advised Mr Coomaraswamy that he had been withdrawn from the PE2 at the request of the school and as that was his final chance, a fail would be recorded for PE2 and re-enrolment not permitted. Professor Davison summarised her view of the situation in the following words: It is regrettable that you have not been able to turn your passion and enthusiasm for teaching into the level of knowledge and skill needed to meet graduation requirements, but you are far below what is expected at even an early stage of the programme on almost every area of the standards, including preparation, English language skills and pedagogic content knowledge. Even more of a concern is your inability to recognise and take responsibility for your weakness and to contribute to your own professional development. For these reasons we will not permit any further attempts at completing the programme.

Coomaraswamy v University of New South Wales

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