DJH v Secretary, Department of Education;; DJI v Secretary, Department of Education - [2018] NSWCATAD 31 - NSWCATAD 2017 case summary — Zoe

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DJH v Secretary, Department of Education;; DJI v Secretary, Department of Education

[2018] NSWCATAD 31

NCAT Administrative and Equal Opportunity|2017-12-12

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Court

NCAT Administrative and Equal Opportunity

Decision date

2017-12-12

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

REASONS FOR DECISION

This is an application by DJH for leave for two complaints to proceed in the Tribunal against the First Respondent, Secretary, Department of Education. One complaint was made by DJH on behalf of her son DJI alleging disability discrimination in education against the First Respondent. The other complaint was made by DJH alleging victimisation against her by the Respondent and staff member DJJ, the Second Respondent.
In proceedings number 2018/0034743 DJH, on behalf of her son DJI, seeks leave for a complaint of disability discrimination in education to proceed.
In proceedings number 2017/00338801 DJH seeks leave for her own complaint of victimisation by the Secretary, Department of Education and Mr DJJ to proceed.
Both complaints were declined by the President of the Anti-Discrimination Board as lacking in substance and in those circumstances leave is required under section 96 of the Anti-Discrimination Act 1977 (NSW).
Both matters were considered together at the leave hearing.
These reasons for decision deal with both sets of proceedings.

[2]

ConfidenItiality Orders under Section 64 Civil and Administrative Tribunal Act 2013

After the hearing and prior to the publication of this decision, the Applicant sought orders that the name of her son and any material which might identify him not be published. The Respondent did not oppose the application. The Respondent sought that the name of the school and its staff also not be published - lest this lead to the identification of the student.

[4]

Factual basis of complaints

The factual basis of these complaints is set out in a letter to the Anti-Discrimination Board (ADB) from DJH on 7 November 2016. The complaints relate to DJH's son, DJI and his attendance at FLC High School as a student commencing in January 2014.
In summary, DJH's complaints of discrimination and victimisation related to DJI's alleged experiences as a student at their High School from November 2014 to November 2016. The complaints set out that DJI had been suspended on a number of occasions for behaviour which was due to his disability. The school had not taken DJI's disability into consideration when imposing suspensions. The suspensions had led to DJI missing a lot of school as well, including special education days and to DJI falling behind. The school staff had ignored advice from professionals as to how DJI should be managed. DJI had been subject to teasing from other students because of his disabilities and this had not been prevented by the school. In 2015 DJI was assaulted by another student during sport and there was inadequate action and investigation taken. In February 2016 DJI's parents had requested that the school Institute a headache management plan for him but this was ignored. On another occasion he was not given analgesia for a headache when at school. The school had instituted a restricted communications protocol for DJI's parents with school staff. This had led to DJI being taken out of a group email for English lessons.
DJH said that the victimisation consisted of repeated suspensions of DJI which caused DJH great stress. The headmaster Mr DJJ had notified DJH and her husband to the Child Welfare Unit because of their complaints to Mr DJJ. Mr DJJ had initiated a restricted communications protocol and refused to allow DJH to communicate with teachers, except at the annual parent teacher occasion. One of the teachers invited DJH to meetings that were to be informal one-on-one meetings. DJH alleged she was instead ambushed by a number of staff attending the meetings. Mr DJJ had made comments about psychology as not being "rocket science".

[5]

The Respondent's response

The Respondent responded to the ADB by letter of 4 May 2017. In summary, the Respondent said that DJI had received no less favourable treatment than a student without his disability. DJI had not been made to comply with any condition which was not reasonable in the circumstances. A behaviour management plan and an individual learning and support plan had been signed off by DJI's parents and the school on 18 December 2013, prior to his commencement in January 2014. There had been 32 incidents of misbehaviour reported in 2014 concerning DJI. In September 2014 the school had demonstrated leniency in that it sent a suspension warning letter. It had not suspended DJI at that time. Again, in late November 2014 the school did not suspend DJI even though his behaviour warranted suspension.
He had a short suspension in November 2014. This was after other strategies had been used - prior to imposing a suspension.
In November 2014 the behaviour management plan and the individual learning support plan were reviewed and updated. There were a further 70 incidents in 2015. On occasions they used alternatives to suspension in managing DJI. His second suspension was in March 2015 following an incident of violence. After this DJI's individual learning support plan and behaviour management plan were again reviewed. In May 2016, DJI was suspended after he used offensive language to the head teacher. DJH's appeal against DJI's suspension had not been upheld. The Respondent maintained that any child without a disability would have been treated in the same way in respect of the behaviour. The school denied that DJI had missed academic and sporting opportunities because of suspensions. Even if DJI had missed academic and sporting opportunities because of suspensions, this was a natural consequence of suspension and would have been experienced by any child who was suspended. The school denied ignoring a request for a headache management plan and also said that medication had been administered for a headache. Mr DJJ had not reported DJI's parents to the Child Welfare Unit. Rather he had obtained advice about how to respond to comments made by DJH from the Child Welfare Unit. The school stated that there had been no reported injuries nor independent medical advice to support the allegation of an assault on DJI during a soccer/PE class in 2015.
Mr DJJ denied that the restricted communications protocol was instituted because of the complaints. The restricted communications protocol had been implemented because of the increasing number of emails and texts passing between DJH and school staff. It was implemented to ensure there was consistent information flowing between DJI's parents and the school. It was not unlawful discrimination to impose the restricted communications protocol. The Respondent denied that staff had ignored advice from professionals. The school had made adjustments for DJI's disabilities and all complaints of victimisation were denied.

[20]

Indirect discrimination complaint.

In her letter of 6 December 2017 and oral submissions before the Tribunal's leave hearing on 12 December 2017, DJH asserted that the complaint was more a complaint of indirect discrimination, which had not been considered by the President of the ADB.
DJH expressed the complaint of indirect discrimination as follows. A requirement had been put on DJI by the school that to attend the school he must be sufficiently able to control his behaviour so that he can follow the "[School] Way" and not be subject to the discipline policy. However due to DJI's disability, he is unable to comply with the [School] way and not be subject to the discipline policy and therefore he has been subject to increasingly longer suspensions due to repeated instances of swearing and misbehaviour. It is arguable that DJI is not able to comply with the school's discipline policy because of his disability. This is because he cannot read social situations as well as many other students and his disability causes DJI to respond and react to hurtful or frustrating situations differently, without understanding the consequences of his reaction, and without being able to control his reaction. It is arguable that the strict discipline code on DJI is not reasonable, and considering DJI has an altered behaviour management plan in relation to managing his disability, it would be reasonable that he receives an altered discipline policy from the school. Therefore, the series of increasingly long suspensions, and subsequent exclusion from excursions at the end of that term/year in special education or external events, without having regard for DJI's disability, can be argued as indirect discrimination. DJH stated that she had repeatedly requested, mainly verbally to Mr DJJ [who refused to correspond by email or in writing] to make adjustments to the discipline code for DJI - suggestions such as shorter suspensions, in school suspension, or more practically appropriate and less formal - picking him up urgently from school and taking him home, for time out, de-stressing, reflecting and support/advice from his psychologists. DJH stated: "We agreed that at times consequences for certain behaviours were necessary in helping him take control of his behaviour, but social and educational exclusion was very damaging…" With an altered BMP, it is reasonable to request an adjusted discipline policy to cater for his disability. Accordingly, the requirement upon DJI of not displaying violent or distressed behaviour such as swearing as a consequence of bullying or frustration/anxiety, otherwise he will be suspended, arguably is not reasonable. It is arguable that, with ASD, ADHD, anxiety and mild OCD, it's not reasonable for the school's discipline code to be imposed so strictly on DJI. I do not believe the school can argue unjustifiable hardship in relation to this adjustment, as any detriment to them of instituting alternative discipline methods to DJI is likely to be far outweighed by the benefits to DJI of increased time at school, better social integration, increase self-esteem and academic and sporting success. It does not appear that there would be financial detriment to the school in making this adjustment. Mr DJJ advised that he could not alter the discipline code for DJI as he was worried about what other parents would think.

[35]

That detriment must have occurred 'on the ground that' the Complainant did one of the things listed in s 50(1)(a) to (d) - causation element

In determining complaints of victimisation in the matter of Nicholls (see Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20) the Administrative Decisions Tribunal Appeal Panel said at paragraph [37]: 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.
DJH has asserted that the reason she was subjected to the detriments set out was because she had made complaints to the school that DJI was being discriminated against on the grounds of his disability. DJH's allegations of detrimental behaviour are connected to the way in which the school dealt with the disability discrimination complaints. That is, they relate to the way in which the school was prepared to deal with the complaints - specifically the restricted communications protocol and the alleged ambush at meetings.
The school argued that the restricted communications protocol was necessitated to ensure that there was consistent information flowing between DJI's parents and the school. It was not unlawful discrimination to impose the restricted communications protocol. The Tribunal notes however that the prohibited reason need only be one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment.
In considering whether to grant leave the Tribunal must put the complaint at its highest. Accepting the facts as claimed by DJH to be hypothetically true - the Tribunal is satisfied that there is an arguable case that the Respondent's actions in specifying the way it was prepared to discuss DJH's complaints of discrimination, caused her detriment, and, at least one of the reasons was the fact of DJH making the complaints.
The Tribunal is satisfied in these circumstances that it is fair and just that leave be granted for DJH's complaint of victimisation against her to proceed under section 96 of the ADA, 1977.

DJH v Secretary, Department of Education;; DJI v Secretary, Department of Education

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