Coomaraswamy v University of New South Wales

Principles for granting leave

1. 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.

Background

1. 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.
2. 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.
3. 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.
4. 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.

Substantive provisions

1. 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.
2. The University is an educational authority: Anti-Discrimination Act, s 4.
3. 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.
4. 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.
5. 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).
6. 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).

Race, age and disability

1. Mr Coomaraswamy's race is Sri Lankan. I understand his age to have been around 67 in 2013. The disability upon which he relied is sleep apnoea. That is a disability within the meaning of that term in the Anti-Discrimination Act.

Expulsion or being subjected to a detriment

1. 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.
2. 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.
3. 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.
4. 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.

Differential treatment

1. The first component of the test for direct disability discrimination is the "differential treatment" test. The treatment afforded to Mr Coomaraswamy must be compared with the treatment that would have been afforded to a person not of his race or age or who did not have his disability. In the absence of an actual person whose treatment can be compared with the treatment given to Mr Coomaraswamy, a decision maker would have to rely on a hypothetical person in a comparable situation. It is difficult to assess how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation.

Causation

1. At least one of the reasons for the decision to terminate Mr Coomaraswamy's placement must have been his race, age or disability. As with the vast majority of complaints of discrimination, a causal link between any of these matters and the termination 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."

Inadequate assistance and support to complete his studies

1. Mr Coomaraswamy has not provided any details of the assistance or support that he sought but which was not provided. As I have mentioned, an action plan was developed for Mr Coomaraswamy as he was identified as a "student at risk" (President's Report p 427). The plan included arranging a four-week Teaching Assistant role in an appropriate school for term 1 2013. If progress in the Teaching Assistant role was satisfactory the University agreed to repeat a PE2 placement for May June 2013 at a suitable school. Mr Coomaraswamy was also advised of additional workshops scheduled for PE support.
2. Mr Coomaraswamy provided a report from a medical practitioner dated 18 January 2014 expressing the opinion that he had "severe obstructive sleep apnoea". Mr Coomaraswamy accepts that his disability was not disclosed to the University until after he was placed on probation. Students who have a disability are encouraged to register with the University's Student Equity and Disabilities Unit. Mr Coomaraswamy was not registered with that unit and did not apply for any special consideration in relation to his studies.
3. Mr Coomaraswamy conceded that he did not notify the University of his disability but asked rhetorically why, when a teacher noticed him sleeping at the back of the class during her lesson, she did not tell him to fill in the necessary forms? He added that he has not feigned his disability but Professor Davison and others have refused to accept his disability as genuine.
4. In circumstances where Mr Coomaraswamy did not advise the University that he had sleep apnoea and that he needed support, it is highly unlikely that he will be able to prove that any employee of the University discriminated against him on that ground by failing to give him adequate assistance to complete his studies.

Inadequate assistance and support to undertake his practicum placements

1. This allegation is not particularised. The University submits that all staff provided Mr Coomaraswamy with assistance and support to enable them to undertake his practicum placements. He was permitted to re-enrol in the course in 2013 after initially failing to complete it in 2012.

Termination of his enrolment

1. 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.
2. 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."
3. 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.)
4. 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.

Failure to adequately investigate his complaints

1. Mr Coomaraswamy lodged a complaint with the University's Student Conduct and Appeals Office (SCAO) on 30 July 2013. He complained that he had been terminated from his teaching practicum and treated unfairly. The University submits that the complaint was considered and investigated by the SCAO in accordance with the University's Student Complaint Procedure. The SCAO wrote to Mr Coomaraswamy on 9 August 2013 advising that this complaint had not been upheld. Mr Coomaraswamy lodged an internal appeal against that decision. He was given an opportunity to present his appeal before the University's Complaint Appeals Committee. The Committee decided that there had been no denial of procedural fairness in the SCAO's investigation and was satisfied that the SCAO took into account the issues submitted in the complaint.
2. Mr Coomaraswamy complained to the NSW Ombudsman who concluded in a letter dated the 10 February 2014 that " … there was no issue with the conduct of the appeal".
3. The University has responded in detail to Mr Coomaraswamy's more general allegations: President's report page 408 - 411.
4. There is no evidentiary basis for drawing an inference that Mr Coomaraswamy's race, age or disability contributed in any way to any of the treatment Mr Coomaraswamy described. In those circumstances, it is not fair or just for this complaint to proceed.

Orders

1. Leave is refused for the applicant's complaint of race, disability and age discrimination 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: 01 March 2016