Dirckze v Holmesglen Institute [2015] VCAT 1116 | Case summary

Dirckze v Holmesglen Institute [2015] VCAT 1116 | Case summary | Zoe

[6]

On 25 January 2013, Mr Dirckze enrolled to undertake the Diploma of Nursing (Enrolled Nursing) (the diploma) at the Moorabbin campus of Holmesglen Institute (Holmesglen).
Between August 2013 and May 2014, Mr Dirckze made complaints to Holmesglen about a range of matters, particularly about exam results and other assessments.
On 23 May 2014, Mr Dirckze was suspended from attending Holmesglen and on 29 May 2014, he was expelled. Mr Dirckze appealed that decision to the Student Discipline Appeals Committee. On 30 July 2014, the expulsion decision was confirmed.
On 22 October 2014, Mr Dirckze made an application to the tribunal alleging that he had been discriminated against by Holmesglen in respect of education and the provision of services based on age, employment activity, industrial activity, physical features, political belief or activity, race,[1] religious belief or activity and sex. He also complained that he had been victimised and sexually harassed. Mr Dirckze added a claim that he had been discriminated against based on a presumed disability. The hearing of the application proceeded on the basis that Mr Dirckze claimed he had been discriminated against because of his age, physical features, race, sex and a presumed disability.
Mr Dirckze is 42 years of age and is male. The physical features he relies on are his hair loss and the fact that, from time to time, he had dyed his dark coloured hair blonde. Mr Dirckze has dark brown skin and says that he was called 'a monkey'. He complains that is a racist remark. In late 2013, Mr Dirckze was required by Holmesglen to have an assessment of his mental state. He says that action amounts to discrimination based on a presumed disability. Mr Dirckze says he was discriminated against and victimised when he was expelled.
The other claims arise from Mr Dirckze having failed subjects, been excluded from participation in practical components of the diploma and from things Mr Dirckze says were said and done in meetings and interactions with Holmesglen staff. The sexual harassment allegations also arise in the context of meetings and interactions with certain Holmesglen staff. Mr Dirckze says that much of his treatment amounts to victimisation as a consequence of complaints he made about his treatment and about the manner in which Holmesglen is run.
Mr Dirckze's claims are made under the Equal Opportunity Act 2010 (Vic) (EO Act).
Holmesglen denies all of these allegations. It says it appropriately applied its policies regarding academic progress to Mr Dirckze and that it offered him appropriate support from time to time. It says that he failed exams, not because of any attribute protected by the EO Act, but because his academic performance was not adequate. Holmesglen relies on Mr Dirckze's behaviour as the basis on which he was expelled. It follows that Holmesglen denies there was any victimisation of Mr Dirckze. The relevant staff deny the alleged acts of sexual harassment.
Section 109 of the EO Act provides that, if a person, in the course of their employment, engages in conduct such as discrimination, sexual harassment or victimisation, both the person and the employer may be liable. Section 110 sets out an exception to the application of section 109. Mr Dirckze has brought his claim against Holmesglen only and it has not denied it may be liable for acts of its employees which breach of the EO Act.
Mr Dirckze's claims include complaints about the conduct of various students at Holmesglen. Following discussion at the hearing, he understood that Holmesglen was not legally responsible for the actions of his fellow students and that those matters would not be considered in this proceeding. His materials also raise complaints about compliance with ethical and regulatory requirements. Those matters have not been considered other than to the extent they may be relevant to the EO Act claims.
Having heard evidence from Mr Dirckze and seven Holmesglen staff and reviewed a large number of documents, I am satisfied that Mr Dirckze has proven one of his claims but that the remainder are to be dismissed. I have found that one instance of racial discrimination has been proven and so have made an award of compensation in respect of that matter. I will first address the law under which the claims are made and then turn to the substance of the allegations.

[52]

After submitting the grievance, Mr Dirckze was given the opportunity to sit the exam for a third time. He passed with a mark of 54%. I understand the further re-sit was allowed after the meeting.
At the hearing, in cross-examination, M Dirckze was asked about the basis for the comments about harassment. He said at that time, it was mainly other students treating him badly because of his blonde hair colour. He referred to a teacher making faces at him (opening her mouth) and making facial expressions (unexplained). He said he had made complaints to Ms Brown but could not recall what they were.
As for the meeting, Mr Dirckze's evidence was that he and Ms English had a discussion about his concerns, he was asked to provide details and they spoke about them. He said there was a reference to the Independent Broad-based Anti-corruption Commission (IBAC) and corruption within Holmesglen. He gave Ms English names of students who had been troubling him. His evidence was that he agreed to withdraw the grievance on the basis that Ms English would look into his concerns. He was satisfied at that stage that she was 'ok'.
Ms English's evidence was that she told Mr Dirckze at the meeting that she took allegations of the kind he was making very seriously but that she needed details. Her evidence was that he refused to provide details.[9]
There is nothing before me to suggest that Mr Dirckze was pressured to withdraw the grievance and I am satisfied he elected to do so. Neither the content of the grievance nor the evidence given establishes that Mr Dirckze made a complaint of the kind discussed in section 104 of the EO Act. While he gave evidence that students were teasing him, he gave none about treatment by staff that could form the foundation of a victimisation claim. Mr Dirckze did not give evidence to the effect that, during his discussions with Ms Brown and Ms English, he referred to his race, his age or any other attribute in respect to the Client Assessment and Nursing Care exam. There is no evidence of a complaint or allegation of a breach of the EO Act or any other action falling within section 104(1) of the EO Act.
I note that the evidence from Holmesglen was that, Mr Dirckze was given the opportunity to sit the exam for a third time contrary to usual policy.

[53]

On 8 October 2013, Mr Dirckze sat the complex care exam. As noted earlier, Mr Dirckze's teacher for complex care was Ms Gilder. He failed the exam with a mark of 40%. The exam paper was re-marked and was given the same result.
Mr Dirckze submitted a grievance in which he complained that Ms Gilder had refused to allow him to examine and review the examination paper.[10] He also referred to the following incident.
Mr Dirckze says he arrived for the complex care exam and he and his friends were talking about the topics and asking each other questions. Five minutes before the exam was due to start he took a seat in the front row of the exam room. He had already been given an exam paper which he was holding in his hand. Ms Gilder was said to have then 'forced' another copy of the same exam paper into his hand even though he had a copy already. He explained that he thought that to have been inappropriate and harassment. He was asked whether he thought Ms Gilder had acted in this way because of his then hair colour or some other identified attribute. His response was to say 'god only knows' why he was harassed in this way and suggested it might have been because he had made complaints about another staff member.
In the context of the exam review process, he said that Ms Gilder had given him a work sheet with suggestions and said he did not need to come back to review the exam paper. He said, after re-sitting again, he felt misled, cheated and unfairly treated. He asked for the matter to be looked into and for him to be given a chance to have a supplementary exam.
Ms Gilder's evidence was that she did allow Mr Dirckze to review the exam and to take notes of the areas in which he needed improvement. She arranged this review in accordance with instructions from Ms Brown, which were to conduct any meeting with Mr Dirckze with a second staff member present. On the day arranged no other teacher was available and so Ms Gilder conducted the examination review at the reception area desk in view of reception staff.[11]
Mr Dirckze was again allowed a further opportunity to sit the exam and he again failed with a mark of 44%.[12]
In cross-examination, Mr Dirckze agreed that the grievance said nothing about discrimination and he could not recall saying anything about that. He referred to Ms Gilder making facial expressions during the re-sit in November 2013. It was not clear what he thought they signified.
Neither the content of the grievance nor Mr Dirckze's evidence shows that a complaint of the kind referred to in section 104 of the EO Act was made to Holmesglen.

[54]

In November 2013, Mr Dirckze was required to attend a clinical placement for a subject concerning mental health at an aged care facility. Mr Dirckze left the placement after two and a half days following an incident with the facilitator, Ms Sandra Gec. He lodged a grievance about the matter and Ms Gec completed an incident form.
The grievance[13] said Ms Gec was abusive and rude in her communications with him. It said that Ms Gec tried to harm him by breaching health and safety requirements. Mr Dirckze said Ms Gec abused him when she tried to make him wash a resident on his own instead of with the help of another person. In an accompanying email, Mr Dirckze complained that Ms Gec tried to have him take a blood glucose reading without gloves and raised concerns about infection control.
Ms Gec's incident report[14] explained that on 27 November 2013, she, Mr Dirckze and another student were reviewing various insulin dependent residents in the facility. The students were asked to carry out blood glucose assessments. Ms Gec said that Mr Dirckze consistently had trouble understanding information and following directions. He appeared to be nervous and agitated and was sweating profusely, including onto the medication chart. Similar observations were made about Mr Dirckze's presentation and behaviour the day before, in the context of washing a resident. When about to commence attending to a resident, Mr Dirckze became very agitated, he raised his voice and appeared to Ms Gec to be aggressive. He complained he was being bullied. Ms Gec asked if they could discuss the matter quietly outside, he refused and walked away. Mr Dirckze was reported to have then collected his belongings and left the facility.
At the hearing, Mr Dirckze was asked about these events. His evidence was that the problems with the placement concerned the manner in which he was being asked to undertake tasks and associated health and safety requirements. He said Ms Gec yelled at him. He denied he was aggressive. When asked why he thought Ms Gec would bully him, Mr Dirckze said he did not know why but referred to the complaint about Ms Gilder. He seemed to suggest some connection between Ms Gec and Ms Gilder.
The above material does not reveal any complaint about discrimination in relation to Ms Gec's dealings with him at the placement or any other breach of the EO Act. There is no complaint of the kind referred to in section 104 of the EO Act in Mr Dirckze's email.

[55]

Ms Koutoukidis arranged a meeting between herself, Ms Kerr and Mr Dirckze on 18 December 2013. The purpose of the meeting was to discuss what had occurred at the clinical placement and Mr Dirckze's overall progress in the diploma course.
Mr Dirckze lodged a grievance following the meeting.[15] It said that his main concerns were about having a re-sit, reviewing exam papers and having a proper clinical placement. He referred back to his earlier grievance letters and said they were completely ignored. He mentioned again bullying and harassment. He referred to underhand activities. He disputed suggestions that he had invaded Ms Gec's space.
Mr Dirckze mentioned inappropriate comments having been made by Ms Kerr on 18 November 2013 - I understand that meeting may have in fact been held on 27 November 2013. No particulars of the comments were provided. He then made further reference to exams, reviews and expressed concern about completing stage 3 of the diploma in the first half of 2014. He asked the executive director to intervene and to help him complete specific parts of the diploma course and to be 'treated equally'. He then expressed thanks to student services for their assistance.
Ms Koutoukidis' witness statement describes a discussion about the events at the placement and Mr Dirckze's concerns. He objected to what was being said and walked out saying he would take the matter higher. [16] Ms Koutoukidis said that she had some underlying concerns about Mr Dirckze not acting in a rational manner and that he may have some underlying pathology. She recommended that he had a psychiatric consultation before returning to his studies in 2014.[17] Ms Koutoukidis denies the criticisms made of her conduct in the grievance.[18] Ms Koutoukidis' evidence in cross-examination was that she made no assumptions as to the outcome of the mental health assessment she had recommended and was not aware of the outcome.
Other than the reference to a wish to be treated equally, Mr Dirckze makes no specific reference to discrimination. It appears that the reference to comments said to have been made earlier by Ms Kerr relates to an allegation that at a meeting in mid-November 2013, Ms Kerr called Mr Dirckze a 'monkey'. No express reference was made to the alleged comment or that word in the grievance.
There is no complaint of the kind referred to in section 104 of the EO Act in Mr Dirckze's grievance about the meeting.
At the hearing, there was a question about whether the grievance was received by the executive director, Ms Mary Faraone. I was satisfied on the evidence before me that she was on leave at the time it was sent and it was instead referred to the acting executive director, Mr Max Newton. He said in an email that the material would be sent on to Ms English who would make contact with Mr Dirckze after he returned from overseas.

[71]

Mr Dirckze complains that, because he was not able to attend classes until he had undertaken the mental health assessment and because that assessment did not occur until March 2014, he was unable to attend classes and meet these minimum requirements.
He also complains that the mental health check and health assessment were required for 'their ulterior motives'. It is not clear what those motives are said to be. He also says that the requirement for the health checks was unfavourable because fellow students and Ms Brown and Ms Kerr thereafter viewed him negatively.[24]
Concern about treatment of Mr Dirckze's diabetes was raised following the mental health placement as were concerns about his mental state following that event and his meeting with Ms Koutoukidis and Ms Kerr.
Ms Gec's report said that she spoke privately to Mr Dirckze on the first day of the placement about his sweating and nerves. She records that he said that he had diabetes and other health conditions. The note shows that his blood glucose level was of concern. As Mr Dirckze presented to Ms Gec as being unconcerned, he was encouraged to see a general practitioner as he appeared to be symptomatic.[25]
In her memo about the meeting held between her, Ms Brown and Mr Dirckze on 29 November 2013, Ms Kerr referred to a discussion about whether Mr Dirckze had diabetes, whether it had been diagnosed and whether he had been prescribed medication. [26] The note referred to Mr Dirckze saying he was taking medication but that it was his mother's. The note then said that Mr Dirckze called later to say he was taking medication but it was not for diabetes. The memo suggested that Mr Dirckze did not know if he had diabetes or not and, if so, whether he was receiving treatment.
In evidence was a letter dated 7 February 2014, from a medical practitioner stating that Mr Dirckze was fit to continue his studies (addressing item 4 of the 10 February 2014 letter).[27] As the letter was provided promptly and confirmed that Mr Dirckze was able to continue his studies despite the concerns about whether he had undiagnosed diabetes, it is not clear why Mr Dirckze says that the request for it was unfavourable. He did not elaborate and provided no evidence about whether or not he has diabetes and, if so, whether it was or is being treated.
While I understand that Mr Dirckze now objects to having been required to obtain a medical clearance, there was no information to indicate he considered that to be the case at the time. Even if he had, that does not prove it was unfavourable.
Ms English was asked about the assessments in cross-examination. She said that the request for a medical clearance and mental health assessment was made because of Mr Dirckze's behaviour at the February 2014 meeting. He was said to have been 'rambling' and she was concerned about his mental state. Staff felt concerned about him and threatened. She referred to having a duty of care to staff and patients. She said the medical information was requested to ensure that Mr Dirckze was mentally and physically fit to practise and that it was sought to protect him and others. I accept that evidence.
I find that the reason the medical certificate was sought was to ensure that Mr Dirckze was well because there were grounds for concerns about possible diabetes. As noted, it was obtained quickly. The enquiry was in Mr Dirckze's interests and to satisfy Holmesglen that he could safely continue with the course, particularly where he had raised it with staff. In the circumstances, I find the request for a medical certificate was not unfavourable under section 8 of the EO Act as it facilitated his continuation in the diploma.
The evidence was that the mental health assessment was made in March 2014 and the assessment was to the effect that, although Mr Dirckze may have been mildly anxious about his study situation, no overt symptoms of any mental illness were found.[28]
Mr Dirckze complained about a delay in the appointment being arranged. As indicated by item 5 of the 10 February 2014 letter, it was a matter for Mr Dirckze to make the appointment. There was no evidence about when he first sought an appointment or otherwise about delay. Further, there is no evidence that Mr Dirckze approached Ms English or anyone else about the delay in obtaining an appointment or made any request to be allowed to recommence his studies pending an appointment.
I find on the evidence of Ms Koutoukidis and Ms English that the reason for the mental health assessment was to ensure that Mr Dirckze was well enough to continue to undertake the diploma and to attend the next scheduled placement. As discussed in the context of the medical certificate, I find that it was not unfavourable for Mr Dirckze to be required to satisfy Holmesglen that he was able to effectively participate in the course, and in particular the scheduled placement, where he would be required to work closely with vulnerable patients. In the context of the earlier placement, I consider that action to be based on reasonable grounds and of benefit to Mr Dirckze as it was more likely to assist in ensuring the placement was useful to him and met the requirements of the course he wished to complete.

[74]

A meeting was arranged for 23 May 2014 between Mr Dirckze and Ms English with Ms Harari attending to observe. The exam deferral was to be discussed, as well as the grievance Mr Dirckze had lodged in December 2013. As discussed earlier, the December 2013 grievance raised concerns about a re-sit of an exam, opportunities to review exam papers and having a proper clinical placement. At that stage, a make up mental health placement had been planned to commence the next week.
In his particulars of claim, Mr Dirckze says that at the meeting Ms English acted in an inappropriate way using threatening and intimidating behaviour and engaged in verbal abuse.[30]
Mr Dirckze says that Ms English told him he could not do the planned mental health placement. He says that he left the meeting because of her conduct, her threatening attitude towards him and her refusal to let him sit the required exams. He says she refused him permission to do his mental health placement because he 'sweats like a monkey'. On hearing all of this, he said there was no point in continuing with the meeting and he got up and left.
Ms English's witness statement says she confirmed that the deferred assessment request had been denied and so Mr Dirckze would have to repeat units. She said he could still attend the re-scheduled mental health placement and attempted to ascertain his readiness to undertake that placement. She denies the sweating comment. Her witness statement says that Mr Dirckze became abusive. He said that both she and Ms Kerr needed mental health assessments and that she could 'stick it up [her] arse.' He left the room swearing.[31]
Ms Harari confirmed this description of events to be true in her witness statement[32] and in her oral evidence. Ms Harari's evidence was that at no time at the meeting or otherwise did Ms English say in her presence that Mr Dirckze could not go on placement because he 'sweats like a monkey'.[33]
Mr Dirckze agreed in cross-examination that he had suggested Ms English needed a mental health assessment and said so on his observation of her behaviour.
Mr Dirckze was asked about 'indecent behaviour' he claimed had been engaged in by Ms English at the meeting. He said she said words to the effect 'If I were you, I'd work my butt off'. He regarded the word 'butt' as indecent.
Ms Harari made a file note on 23 May 2014 about the meeting. [34] In her note she expressed concern Mr Dirckze had an undiagnosed mental illness he was not getting assistance with. The note said that Ms English would respond to Mr Dirckze on the grounds of duty of care to patients at the hospital and suspend him from attending the planned placement the following week. She asked what else could be done to support Mr Dirckze, what action would be taken in regard to his abusive outburst and the expressed mental health concerns and whether he would be a threat to staff if disciplinary action followed.
Having observed Mr Dirckze, Ms English and Ms Harari give evidence and having reviewed the documents and other material before me, I am satisfied that the evidence of Ms English and Ms Harari is more reliable than that of Mr Dirckze. I am not persuaded that Ms English's comment about hard work is indecent or is capable of establishing sexual harassment. I consider it more likely than not that, consistent with the efforts of Holmesglen throughout its dealings with Mr Dirckze, she intended to try to facilitate the mental health placement.
I consider it more probable than not that Mr Dirckze told Ms English, in an agitated and aggressive manner, to 'stick it up your arse' and walked out of the room in an agitated state.
I now turn to the allegation that Ms English said he was always 'sweating like a monkey' and that was why she would not allow him to undertake the mental health placement. Having considered the evidence of Ms English, Ms Harari and Mr Dirckze, I am not satisfied that the claim is proven. There was nothing about Ms English's conduct to suggest she would use such language, especially when Mr Dirckze had clearly been unable to complete the first mental health placement for other reasons. Further, it is clear from her memo that Ms English's concerns about the proposed placement related to Mr Dirckze's overall health.

[90]

Mr Dirckze says his expulsion was an act of discrimination. His other objections to the expulsion decision are contained in his particulars of claim and the additional material dated 20 April 2015 and are as follows:
- He does not agree he was abusive towards Ms English at the 23 May 2014 meeting;
- He should never have been on a learning contract and Holmesglen breached the learning contract. He refers to the Department Head signing under his handwritten comments to indicate agreement with them and him not being given a copy on request;
- He had made a complaint about Ms Koutoukidis. What she said to the Committee was not true because he was scheduled for two clinical placements and had received all the required immunizations and tests. Further he had undertaken two revisions required in the learning contract and Ms Stilo had given him the paperwork required for the placements;
- He disagrees that he has failed the subjects required for the clinical placements. In respect of complex care and wounds he says he was only failed because of discrimination and Holmesglen not allowing him to take his three re-sits;
- He was treated unfavourably as a consequence of his suspension and so missed classes and labs until he provided a clearance;
- In her memo dated 26 May 2014, Ms English 'apart from other misleading derogatory and false statements about me that got me expelled, has presumed that I have some sort of disability'; and
- He says that all of the conduct was victimisation to gag him, humiliate him and to put his morale down for exposing their activities.
I find that the Committee letter dated 30 July 2014 constitutes Holmesglen's decision to expel Mr Dirckze and sets out the reasons for doing so.
Neither Mr Prescott nor Mr Coltman gave evidence. As set out above, four reasons are given by the Committee as the basis on which it found that the expulsion decision was substantiated. In the absence of evidence to the contrary, I proceed on the basis that each of the four listed reasons was a substantial reason for the Committee's decision which was final and not capable of further appeal. The reasons are not weighted or ranked or otherwise expressed to indicate that one or some were more significant to the Committee.

[92]

Mr Dirckze complains that, requiring him to enter into the learning contract was victimisation. He also suggests it was discriminatory. As discussed earlier, taking into account the absence of any complaint of discrimination or sexual harassment having been made earlier, a victimisation claim cannot be proven. The only possible reference to a protected attribute in the learning contract is made by Mr Dirckze. There is no evidence that the learning contract was required to be made because of his race, age, physical features or a presumed disability. Rather, I find on Ms English's evidence and having regard to the content of the document itself, that Mr Dirckze's academic performance and his behaviour at the mental health placement at the aged care facility led to conditions being placed on his further participation in the diploma rather than due to an attribute.
The learning contract indicates that Holmesglen concluded that Mr Dirckze had not met a large number of requirements including as to attendance and assessments. The academic record before the tribunal shows that Mr Dirckze had failed some exams, had not attended re-sits for some and had not completed the clinical placement required to pass the subject. While Mr Dirckze may be correct to say that it is not accurate to say he had failed subjects required for clinical placement, the status of the subjects arise from him walking out of the original placement and failure to attend scheduled re-sits. The low marks in some subject exams cannot be denied.
While Mr Dirckze complains about the decision to not defer the complex care and wounds exams, there is nothing in his evidence to show that discrimination was the reason. It would appear that he was seeking an indulgence of time not open to other students and that he failed to notify Ms Kerr that he was grieving for his aunt. Whether a different decision could have been made is not the issue - the issue is whether there were discriminatory grounds for deciding to not allow Mr Dirckze an additional opportunity to sit an exam and so avoid failure of the subject.
As discussed earlier, Mr Dirckze had already failed complex care in October 2013. As the further deferral was refused, he failed the wounds exam. In his particulars of claim Mr Dirckze complains that he was treated unfairly in relation to various subjects and exams. He refers to his alleged inability to properly review the complex care exam paper discussed earlier. Although Mr Dirckze says all of these matters show that he has been discriminated against, he does not identify any evidence which could prove that claim. I have proceeded on the basis that he uses the terms discrimination, harassment and victimisation to indicate dissatisfaction with what has happened rather than as reliance on the EO Act. No act of discrimination in respect of the particular subjects has been proven.
Mr Dirckze objects to a range of the conclusions drawn by Holmesglen saying they are tainted by victimisation, discrimination and unfair treatment. As discussed earlier in these reasons, those claims have not been proven. Holmesglen's assessment of Mr Dirckze's compliance or otherwise with the learning contract and his academic performance is not a matter for this tribunal to investigate.
Mr Dirckze has not proven that the reasons for his expulsion relating to the learning contract and his academic performance are contrary to the EO Act.

[93]

Mr Dirckze's objections to this aspect of the Committee's decision seem to relate firstly to the accuracy of information provided by Ms Koutoukidis and second to Ms English's comments in the 23 May 2014 memo.
For the same reasons as set out above, where Mr Dirckze has not produced evidence to show that he was discriminated against in respect of the decisions about his participation in placements or victimised in respect of those matters, the assessments made about his suitability to manage the placements are not a matter for this tribunal.
On reading Ms English's memo, it is apparent that she had formed the view that Mr Dirckze had a mental illness for which he was unlikely to seek medical assistance. She refers to a range of behaviours which, in her view, rendered him unsuitable for clinical placements and the diploma. It would be fair to conclude that she presumed he had a disability and that her memo precipitated the May 2014 expulsion decision.
I have concluded that Ms English's views about a presumed disability do not prove that discrimination was the cause of the Committee's decision to confirm the expulsion.
I first note that there is no reference to Ms English in Mr Coltman's letter. As I understand it, at the relevant time Ms Koutoukidis was the Acting Dean and was called upon for her opinion. The Committee letter makes no reference to Ms English's opinion and it would appear she was not involved in the appeal process.
Second, the letter does not raise any matter relating to Mr Dirckze's health. While it is correct that it was Ms Koutoukidis who suggested a mental health assessment for Mr Dirckze, she was not involved beyond that. Her evidence makes plain that she was concerned about how Mr Dirckze behaved during the meeting in December 2013 which followed him walking out of the mental health placement. Her evidence was that she had not made an assumption about the outcome of the assessment and did not know the result. As Mr Dirckze's materials show, his objection to Ms Koutoukidis' opinion and statements was that he thought they were inaccurate and not that she believed he had a mental illness.
Finally, while Mr Dirckze provided information in person at the Committee hearing, he agreed in cross-examination that he made no mention of any discrimination, sexual harassment or victimisation. The Tribunal Book included a copy of a document entitled 'Board paper for meeting [August 2014]'.[40] The document had been written to address the Committee outcome in respect of Mr Dirckze. While no evidence was given about the document, I note that it recorded that, during the course of his address to the Committee, Mr Dirckze said that he 'believes the expulsion to be vexatious, and a reaction against him for raising concerns regarding the programmes (sic) operation'. That statement is not consistent with a belief that the expulsion was because of race or disability related discrimination.
These matters indicate to me that it is more probable than not that, at the time, Mr Dirckze did not regard the reasons given for his expulsion as being discriminatory. While he may not have been aware of Ms English's memo at that time, he had already been required to have the mental health assessment and knew that Mr Prescott had concluded he was unsuitable for clinical placement and yet he did not raise this matter.
I consider it significant that the Committee states it relied on Ms Koutoukidis' opinion of Mr Dirckze's suitability for clinical placement rather than that of Ms English. Ms Koutoukidis gave evidence that she had been a registered nurse for nearly 30 years and had worked in a clinical environment for around eight to 10 years and otherwise as an educator. I note Ms Koutoukidis' evidence about why she recommended the mental health assessment be undertaken and the fact she was not aware of the result. There is no evidence that the recommendation that such an assessment be undertaken in December 2013 was part of Ms Koutoukidis' July 2014 opinion. While Mr Dirckze complains about various aspects of what Ms Koutoukidis said, he does not claim that she presumed he had a mental illness or other disability.
I have considered the report written by Ms Gec about the mental health placement. I have also considered Mr Dirckze's own evidence about those events and that of Ms Koutoukidis and Ms Kerr, as they met with Mr Dirckze around the time of the placement and discussed it with him.
As I understand it, Mr Dirckze disputes Ms Gec's account of events and instead says she was abusive towards him and sought to have him engage in unsafe health care practices. I consider it more probable than not that the significant aspects of Ms Gec's contemporaneous report are accurate.
There is no dispute that Mr Dirckze walked out of the placement without allowing time for discussion. This fact tends to indicate that, whatever problems he may have had with how the placement was being conducted, he was unwilling to adapt or find a solution. Ms Stilo's view of his inadequate skills when administering injections and Mr Dirckze's assessment that he would have scored 95%, support a conclusion that there is a disconnect between Mr Dirckze's demonstrable skills and capabilities and Mr Dirckze's opinion of those. The evidence about the various meetings held with Mr Dirckze indicate that, at the time, he had little capacity to manage conflict, different views or problems. All of these matters raise a question about how such a student would manage a placement which calls for interactions with vulnerable patients in challenging circumstances.
Taking all of these matters together, I find that it is more probable than not the decision as to suitability for clinical placements was not based on a presumption that Mr Dirckze had a disability but rather on the experience and assessment of Ms Koutoukidis who was aware of Mr Dirckze's performance to date and the requirements of the diploma and nursing practice. The Committee clearly accepted her opinion and adopted it in making its decision.
While I understand that Mr Dirckze was personally offended by the content of Ms English's memo, he has not proven that it or any presumption as to a disability or any other protected attribute was the cause of his expulsion. Accordingly, this claim of discrimination will be dismissed.

[96]

I have already commented on the allegation that Ms English referred to Mr Dirckze as sweating like a monkey during the 23 May 2014 meeting. For the reasons given, I dismiss that claim.
On 19 November 2013, Mr Dirckze met with Ms Brown and Ms Auxillia Madhuvu. Mr Dirckze alleges that Ms Brown said words to the effect that 'even monkeys can pass skills labs'. Mr Dirckze says the comment was made in the context of a discussion he was having with Ms Brown and Ms Madhuvu about his progression in the diploma. In his particulars of claim, Mr Dirckze makes reference to a belief that some students had been allowed to move onto part 3 of the course even where they had not completed the earlier part.[43]
In her witness statement and in giving oral evidence at the hearing, Ms Brown denied making the comment.[44]
Mr Dirckze produced a poor quality recording of the discussion, clearly made without the knowledge of Ms Brown or Ms Madhuvu. The recording confirms that there was a discussion about whether Mr Dirckze had passed certain subjects. It seems Ms Brown said he had not passed or sufficiently progressed in a subject. She then said something like 'You know why, because a monkey can stand and do this and do this and do this'.
Ms Brown gave further evidence about the remark. She said she had no memory of saying it, however, she accepted that she used the term 'monkey' when speaking to Mr Dirckze. In her further evidence, Ms Brown explained she made the comments in an effort to make a point about the need to pass skills labs and clinical components of the course. She said she was making the point that a person can learn to do and repeat a skill but it is necessary for the person to be tested to ensure they understand how to undertake the skill, how it impacts on the patient and other related matters. She conceded it was an inappropriate word to use.
As noted earlier, when considering whether conduct is discriminatory, whether or not the conduct was intentional is not relevant. What is required is an objective assessment of the conduct and then consideration of whether it is unfavourable.
Holmesglen noted that the recording appeared to have been edited and so it was not clear what had come before or after. Holmesglen also noted that Mr Dirckze is a particularly sensitive person who reacts unusually and excessively to innocent remarks.
I accept that, until she heard the recording played, Ms Brown did not recall making the remark. I also fully accept Ms Brown's explanation about the point she was trying to make. I think it likely that she was using, what used to be a reasonably commonplace way of explaining that a capacity to undertake repetitive skills which can be taught by rote to anyone, including monkeys, does not equate to understanding and depth of knowledge.
However, as recent controversies involving well known sporting figures have shown, the words 'monkey' or 'ape' to refer to or describe or in connection with a person of colour or a person of some racial or ethnic backgrounds are regarded as derogatory and humiliating. I consider that community attitudes are such that the use of terms such as these in connection with people of colour or people of some racial or ethnic backgrounds is unacceptable and offensive.
Mr Dirckze was and remains very upset by the use of the word. I am satisfied that it was used in a context in which he was entitled to understand he was being compared to a monkey. While I consider that, at times, Mr Dirckze's reading of comments and circumstances has been unusual, I accept that, subjectively and objectively, being talked of in this way was unfavourable treatment contrary to section 8 of the EO Act. I am also satisfied that the conduct amounted to subjecting Mr Dirckze to detriment in the form of humiliation which is a breach of sections 38(2)(c) and 44(1)(c) of the EO Act.
At the hearing, I asked Mr Dirckze in general terms what he was seeking from the tribunal. He said he wished to resume and complete the diploma. He also sought compensation for pain and suffering as the tribunal saw fit. As I understood it, Holmesglen did not consider that an award of compensation would be appropriate in respect of the comment, particularly given Mr Dirckze's extreme sensitivity.
I am satisfied that an award of damages is appropriate in respect of the humiliation suffered by Mr Dirckze. Whether Mr Dirckze is particularly sensitive is not the point - as noted above, I am satisfied that he was injured by being referred to in the same context as a monkey and one must take the victim as one finds him.[45] Having said that, I have taken into account the fact that most people would understand that, when using the analogy, Ms Brown was not saying Mr Dirckze himself was an animal.
As will be apparent from these reasons, Mr Dirckze feels injured and humiliated in relation to many aspects of his relationship with Holmesglen. I have found many of the claims made here about that relationship to be misconceived and unproven. That means it is difficult to identify an amount to compensate for humiliation in relation to only one comment. Noting that the Tribunal recently made an award of the sum of $3,000 in respect of two discriminatory comments, one of which involved the applicant being referred to as a 'gorilla',[46] doing the best I can, I have decided to award that same sum in respect of this aspect of Mr Dirckze's claim. That amount is to be paid by Holmesglen in 30 days.

Dirckze v Holmesglen Institute

At a glance

Court

Decision date

Source

Judgment (139 paragraphs)

Dirckze v Holmesglen Institute (Human Rights List) [2015] VCAT 1116 (10 July 2015)

Parties

Legislation Cited (1)