Frost v TAFE NSW

NCAT Appeal Panel|2021-02-19

Overview

Ms Frost has appealed from a decision of the Tribunal dismissing her applications under the Anti-Discrimination Act 1977 (NSW). Ms Frost asked the Appeal Panel to address the appeal from a "common sense perspective". She urged us to take into account the fact that TAFE has a monopoly on the provision of educational qualifications for people with disabilities in NSW. By excluding her from participating in courses in retaliation for other complaints she has made, TAFE has set a very "low bar". She alleges, among other things, that TAFE did not investigate her allegations of fraud against teachers and that the Tribunal did not conduct a proper inquiry into her complaints. The Appeal Panel should look at all the interlocutory decisions and appeals and make a decision based on all the evidence.
The Appeal Panel has no power to conduct a broad inquiry into Ms Frost's grievances. Our role is very specific. It is confined to deciding whether any of Ms Frost's grounds of appeal identify an error of law and whether we should give her permission to appeal on other grounds: Civil and Administrative Tribunal Act 2013 (NSW), s 80. Reasons for giving permission to appeal on grounds other than a question of law include that it would be unjust to allow the factual finding to stand or that the Tribunal made a factual error that was clearly mistaken: Collins v Urban [2014] NSWCATAP 17 at [84].
Ms Frost did not have a lawyer representing her. In those circumstances, we have a duty to ensure that she is not disadvantaged: Hamod v State of New South Wales [2011] NSWCA 375 at [309] - [316]. That may involve suggesting a question of law which Ms Frost has not articulated: XYZ v State Trustees Limited [2006] VSC 444; (2006) 25 VAR 402 at [43]; Donoghoe v Compass Housing Services [2015] NSWCATAP 97; Kendray v New South Wales Land and Housing Corporation [2015] NSWCATAP 139 at [30]. We could not find a question of law ourselves, nor did Ms Frost identify such a question. There is no basis for giving Ms Frost permission to appeal on a ground other than a question of law.

Interactions with TAFE NSW and Tribunal's findings

Ms Frost enrolled in the Introduction to Beauty course at the Gosford campus of TAFE NSW in 2017. She was excluded from class while complaints about her conduct towards other students were investigated. Before that investigation had been completed, Ms Frost withdrew from the course. The outcome of the investigation was that Ms Frost was reprimanded for making offensive comments to students in breach of the Student Disciplinary Policy.
Ms Frost's allegations included that she was victimised and harassed because of complaints she made before enrolling in the course, vilified by a teacher telling other students that she had a mental illness, (an allegation the teacher denied) and bullied at a private meeting to discuss the allegations against her.
The Tribunal found at [104] and [108] that it was Ms Frost's unacceptable behaviour, rather than her disability (depression and anxiety) which was the reason for the decisions TAFE employees made about her. The Tribunal found at [111] that the vilification complaints were misconceived because it is not unlawful to vilify a person on the ground of disability. In any case, the Tribunal found that the teacher did not tell the class that Ms Frost had a mental illness. The Tribunal also rejected Ms Frost's allegations that the way employees of TAFE treated her constituted unlawful harassment.
Later in 2017, Ms Frost enrolled at the Kingscliff campus of TAFE in another beauty course and a fitness instruction course. Teachers alleged that she had bullied students in the class. After a confrontation with one of the teachers, Ms Frost was found to have breached the Student Disciplinary Policy. She was excluded from class for 21 days while the matter was investigated. As a result of the investigation, Ms Frost was excluded from TAFE until the end of 2017.
Ms Frost alleged that she was refused permission to keep her "therapy dogs" on campus and that she was continually forced into meetings for no reason. These and other allegations were said to amount to discrimination against her on the ground of her disability, victimisation for making complaints and being subjected to disability vilification.
The Tribunal preferred the evidence of the TAFE teachers about the altercation and other allegations and concluded that Ms Frost had not established that any of the conduct amounted to disability discrimination, victimisation or vilification as defined in the Anti-Discrimination Act 1977.

Summary

In summary, Ms Frost grounds of appeal were that: 1. the hearing was unfair because the Tribunal: 1. 'blocked' her from cross-examining witnesses including being prevented from asking whether a teacher at Gosford campus was fired or quit; 2. did not ask her any questions, and 3. did not realise she was making a complaint of victimisation and erased the tape where that admission was made. 1. TAFE did not investigate her allegations that TAFE teachers were "unqualified fraudsters" because they were hairdressers and had no make-up artistry qualifications.

Blocked from cross-examination

Ms Frost alleges that she was prevented from effectively cross-examining witnesses because the Tribunal members kept interrupting her and disrupting her train of thought. In particular, Ms Frost alleged that she was prevented from asking whether a teacher at Gosford campus was fired or quit. She says that was relevant to that person's credibility.
Ms Frost did not provide an extract from the transcript to prove her claim. Without that evidence, we are not satisfied of the factual basis of this submission. Ms Frost says that she cannot afford to order the transcript or have it transcribed, nor is she able to transcribe it herself.
We note that the directions made by the Tribunal on 21 October 2020 were to lodge with the Appeal Panel and give to the Respondent: The sound recording or transcript of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts.
The fee for the sound recording is $45 per day. Ms Frost did not say that she had applied for a waiver of this fee. We understand that Ms Frost claims to have limited use of her hands to write, type or thumb through pages because of hand pain and arthritis. She provided a short typed submission. Without some detailed medical evidence, we are not satisfied that her disability prevented her from providing a typed copy of instances during the hearing where the Tribunal had unfairly prevented her from asking a specific question. In our view, she failed, without a reasonable explanation, to provide the evidence to support the factual basis of this ground of appeal. Even if she had provided that evidence, the Appeal Panel would then have had to decide whether the hearing was procedurally unfair.
We note that the decision records that Ms Frost cross-examined Ms Kerry Bryant, Ms Anita Rafferty and Ms Elizabeth Rensink. The decision goes on at [39]: The hearing was scheduled to continue for a third day, but the applicant notified the Tribunal that she did not propose to cross examine any further witnesses or to participate further in the hearing.

Tribunal did not ask her questions

Ms Frost submitted that the lawyer for TAFE NSW did not cross-examine her, nor did the Tribunal ask her any questions.
Ms Frost is responsible for proving that TAFE NSW has breached the Anti-Discrimination Act. In legal terms, she has the onus of proof. She must present evidence to establish each element of the contravention, whether it be disability discrimination, victimisation or vilification.

Ignorant of victimisation complaint and erased the tape

Ms Frost alleged that during the hearing, the presiding member said that Ms Frost had not complained of victimisation. Ms Frost asserted that the lawyer for TAFE NSW corrected her by saying that Ms Frost had complained of victimisation. Ms Frost questions the competence of the presiding member if she is not aware of the extent of the complaint. Furthermore, Ms Frost suggested that someone has erased that part of the tape recording where the presiding member made that comment.
Ms Frost did not obtain a copy of the relevant parts of the transcript or provide a statement to prove the factual basis for this ground of appeal. We make the same observations as in [15] above about her asserted inability to provide that evidence. However, even if the presiding member made the comment, Ms Frost would still have to prove that the Tribunal made an error of law in circumstances where the reasons for decision address the complaints of victimisation.

Allegations that teachers were not qualified

Another ground of appeal is that teachers at TAFE who were critical witnesses, had fraudulently misrepresented themselves as teachers of make-up artistry when they were hairdressers. Ms Frost sees herself as a whistle-blower exposing corruption within TAFE. She said that the Tribunal refused her application to issue a summons for documents from TAFE to prove her claims of fraud. She did not appeal from that decision.
These proceedings are not an appeal from the decision to refuse a summons application. Ms Frost did not provide any evidence to prove the factual basis for the allegation said to justify the summons. Making allegations of fraud is a very serious matter. Contrary to Ms Frost's assertion, it is not up to TAFE NSW to provide evidence that the teachers are suitably qualified - it is up to her to provide evidence that they are not, or may not be, qualified. That involves identifying the required qualifications and her knowledge of the qualifications of the particular teachers. However, even if Ms Frost provided that evidence, we would also have to be satisfied that the Tribunal made an error of law by accepting evidence from unqualified teachers.

Conclusion

Ms Frost is under the impression that "people at the top of TAFE organised to have her expelled" in retaliation for her whistleblowing activities. The Tribunal found at [173] that the treatment Ms Frost received "resulted from her own behaviour" towards other students and teachers. We can find no error of law in the Tribunal's decision, nor is there any reason to give Ms Frost permission to appeal on other grounds.

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: 24 February 2021

At a glance

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Judgment (9 paragraphs)

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Legislation Cited (2)

Cases Cited (6)