Mr Gabriel attended TAFE NSW (TAFE) sometime prior to 2019. In 2019, Mr Gabriel enrolled in a Certificate III Screen and Media course at the Kingswood campus of TAFE. In 2020, Mr Gabriel enrolled in a Diploma of Screen Media (Diploma) at the Kingswood campus.
Craig Daalmeijer-Power was one of the teachers teaching the Certificate III Screen and Media course. In the first semester of 2019, Mr Gabriel was one of his students. During 2019 and 2020, Mr Daalmeijer-Power was also the Head Teacher of Photography, Screen Media and Games at the Kingswood campus.
Mr Gabriel was enrolled in a class called Interactivity in the first term of 2020 as part of the Diploma. The class was taught by Craig Daalmeijer-Power. Mr Gabriel was a student in a 3D Modelling class in the first semester of 2020 as part of the Diploma. That class was taught by Mr Gregory Todd.
On 11 June 2020, Mr Daalmeijer-Power received an email from Mr Gabriel making a complaint about Mr Todd. The subject of the complaint was Mr Todd's inability to cooperate with students. Later on 11 June 2020, Mr Gabriel raised another matter in regard to not being able to complete work in Mr Todd's class due to technical issues.
Mr Daalmeijer-Power decided to investigate Mr Gabriel's complaint against Mr Todd. On 17 June 2020, Mr Daalmeijer-Power informed Mr Gabriel in an email that he was investigating allegations made by him. In the same email Mr Daalmeijer-Power also raised a concern about Mr Gabriel's conduct that morning in the Interactivity class conducted on MS Teams. Mr Daalmeijer-Power asserted in the email that Mr Gabriel's behaviour of commenting on the allegations against Mr Todd in the classroom was inappropriate.
On the same day, Mr Gabriel sent an email stating that he would not be attending Mr Todd's classes. Mr Gabriel also made numerous vague allegations including that Mr Daalmeijer-Power does not like people to complain and that 'people have been turned against him'. Mr Gabriel foreshadowed that he has documents on which he would rely in an external complaint and would make public complaints on social media.
On 19 June 2020, Mr Gabriel sent an email to Mr Daalmeijer-Power and others indicating that he wished to withdraw the complaint against Mr Todd but he did not want to attend any further subjects taught by him or to communicate with Mr Todd in regard to an outstanding assessment task pending in the 3D Modelling class.
On 22 June 2020, Mr Daalmeijer-Power responded to Mr Gabriel clarifying that he sought to rescind his complaint against Mr Todd. Mr Daalmeijer-Power also offered to assist with the technical issues and asked Mr Gabriel to commit to behaving respectfully if he was to return to Mr Todd's class.
Later on 22 June 2020, Mr Gabriel sent an email to Mr Daalmeijer-Power communicating that he was a respectful person and explaining that Mr Todd reacted angrily to him asking a question which made him feel humiliated and disrespected.
On 16 July 2020, Mr Todd sent an email to Mr Gabriel about the outstanding assessment. On the same day Mr Gabriel sent a long email to Mr Todd which included the following words 'thanks for your email you made my day miserable like a piece of s***'.
On 19 July 2020, Mr Gabriel notified Mr Daalmeijer-Power and others that he wished to defer the Diploma of Screen & Media for the foreseeable future due to COVID-19.
On 1 December 2020, Mr Gabriel indicated that he wished to return to TAFE to continue the Diploma. Mr Daalmeijer-Power told Mr Gabriel that he would need to talk to Ms Mary Senj before returning to TAFE. Following this conversation with Mr Daalmeijer-Power, Mr Gabriel sent an email to Ms Senj.
On 12 January 2021, TAFE sent a letter and an email to Mr Gabriel that there may be a history of violent behaviour that requires an assessment by a panel and sought to organise a meeting with Mr Gabriel.
On 20 January 2021, Mr Gabriel responded that he did not wish to have a meeting or to discuss matters. He asked that the allegations be provided to him in writing.
On 21 January 2021, Mr Gabriel sent an email to Ms Senj and others. He alleged that Mr Daalmeijer-Power took advantage of her because she has a different ethnicity and that he (Mr Daalmeijer-Power) is white. He alleged that because of this, Ms Senj was treating Mr Daalmeijer-Power as a boss. Mr Gabriel accused Mr Daalmeijer-Power of being a liar, a hypocrite and that he has no dignity.
On 22 January 2021, Ms Senj sent a letter to Mr Gabriel asking him to disregard previous correspondence as to History of Violent Behaviour disclosure and indicating that the matter would be managed under the Student Conduct and Discipline Policy (Policy). The letter referred to two alleged breaches of the Policy - on 11 June 2020 and on 17 June 2020. Mr Gabriel was informed that he was excluded from TAFE until the investigation into the allegations was concluded. He was given an opportunity to present his case as part of the investigation.
On 5 March 2021, Mr Gabriel was notified that the allegations against him were substantiated. The letter also referred to new allegations of improper behaviour on 19 and 20 January 2021. TAFE determined to exclude Mr Gabriel for a period of 60 days as a penalty. Mr Gabriel was notified that he had a right to internally appeal the decision by 29 March 2021.
[2]
Allegations made by Mr Gabriel
Mr Gabriel made a complaint to Anti-Discrimination NSW on 23 February 2021. The period of the complaint is from 1 March 2020 to 23 February 2021.
The complaint is discrimination on the ground of race in education pursuant to ss 7 and 17 of the Anti-Discrimination Act 1977 (NSW) (ADA). Mr Gabriel identifies as an Australian of Middle eastern background, specifically from Iraq.
There are two parts to the complaint set out in the President's Report to the Tribunal 27 July 2021. The first is that Mr Daalmeijer-Power discriminated against Mr Gabriel on the ground of race in the area of education when he subjected him to derogatory comments. The alleged conduct includes:
1. picking on Mr Gabriel's accent;
2. referring to him as a 'Lebo' and 'Ali';
3. suggesting that he had body odour and needed to wear deodorant;
4. preventing him from handling a virtual reality headset after it had been passed to all other students, suggesting that he would make it dirty or unhygienic; and
5. advising him that 'Middle Eastern' people made good builders and plumbers but that screen and media 'is not a subject for your kind of people'.
The second part of the complaint is that TAFE discriminated against him on the ground of race in the area of education when it barred him from resuming his Diploma based on false allegations that he breached the student code of conduct.
Mr Gabriel also alleged that TAFE described him as a 'bad man' because of his race and TAFE recorded in its system that he has dangerous behaviour as a man of 'Middle Eastern background'.
Mr Gabriel informed the Tribunal that someone from the NSW Ombudsman's office said to him that TAFE described him as a 'bad man', however there was no evidence before the Tribunal in regard to this allegation. As there is no evidence to ground this allegation, the Tribunal deals with it no further.
[3]
The relevant law
The following provisions of the ADA are relevant to the proceedings in the Tribunal; section 4(1) definition of educational authority and race; section 7, definition of race discrimination and section 17 education. These provisions are set out below:
Section 4(1)
"educational authority" means a person or body administering a school, college, university or other institution at which education or training is provided.
"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.
Section 7 (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.
Section 17 (1)
It is unlawful for an educational authority to discriminate against a person on the ground of race--
(a) by refusing or failing to accept the person's application for admission as a student, or
(b) in the terms on which it is prepared to admit the person as a student.
(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.
(3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed.
TAFE is an educational authority and Mr Gabriel is a student, who at the time of the complaint had deferred his studies.
For the purposes of this complaint, the Tribunal assumes that an Australian of Middle Eastern background, specifically from Iraq, is a description capable to be considered within the meaning of 'race' in s 4 of the ADA.
In proceedings under the ADA as to direct discrimination on the ground of race, the applicant bears the onus of proving on the balance of probabilities that the facts in issue occurred and that the person was treated less favourably because of the person's race compared to another person, real or hypothetical 'in the same or not materially different' circumstances: Dutt v Central Coast Area Health Service [2002] NSWADT 133; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]; Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56].
The applicant has to prove that his or her race is at least one of the 'real', 'genuine' or 'true' reasons for the treatment; Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62 at [224].
The Full Court of the Federal Court in Vata-Meyer v Commonwealth [2015] FCAFC 139 and in Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 took a broad view of the types of acts or conduct that could amount to a contravention of race discrimination laws. These included racially offensive remarks, jokes, innuendo and stereotypical comments.
An inference drawn to make a finding of fact must be one that is reasonably available on the evidence and capable of being expressed with clarity. An inference will not be reasonably available if it rests upon 'mere conjecture'; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
As explained in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70], any inference must be logical and reasonable, and must show that a connection is probable; an inference cannot be made where more probable and innocent explanations are available on the evidence.
[4]
The Evidence
Mr Gabriel relied on the documents he provided to Anti-Discrimination NSW, including emails dated 23 February 2021 and 13 March 2021. Mr Gabriel provided an email to the Tribunal on 22 September 2021 which was in the nature of a witness statement. Mr Gabriel provided an email to the Tribunal on 18 January 2022 which was in the nature of a response to the evidence filed by TAFE.
In the email dated 23 February 2021, Mr Gabriel alleges that:
1. Mr Daalmeijer-Power made fun of his accent when he was speaking to him as he did not understand something;
2. Mr Daalmeijer-Power responded to Mr Gabriel's good morning on entering the classroom as 'good morning Lebo'. Lebo being a derogatory term for a person from a Middle Eastern background; and
3. Mr Daalmeijer-Power and the faculty manager of Kingswood campus, Ms Senj discriminated against him because he made a complaint against a teacher because he 'hates Middle East so he pick on me' by barring him from TAFE NSW.
In the email dated 13 March 2021, Mr Gabriel alleges that:
1. Mr Daalmeijer-Power said to him 'what's wrong Ali Baba?' and started to laugh at his accent. An example is given of pronunciation of the words 'Abode Audition' to which Mr Daalmeijer-Power replied 'when can you be an Australian'. He repeated words to this effect three times. This occurred in May 2019;
2. in March 2020, when arriving 5 minutes late to class, Mr Daalmeijer-Power called him a 'Lebo';
3. in about March to April 2020, Mr Daalmeijer-Power prevented him from handling a virtual reality headset after it had been passed to all other students, suggesting that he would make it dirty or unhygienic;
4. when in the Green room, Mr Daalmeijer-Power said 'you Middle eastern guys you know where to buy deodorant?';
5. when discussing assessment for the 3D course, Mr Daalmeijer-Power said Ali, I know that 'Middle Eastern' people made good builders and plumbers but that screen and media 'is not a subject for your kind of people'.
In an email dated 22 September 2021, Mr Gabriel repeated the content of the email of 13 March 2021 and added additional content under the headings 'Effects' and 'I demand the following'. Mr Gabriel explained that he is seeking restitution for time lost for the decisions taken by TAFE based on racism, and for the emotional and psychological impact the conduct has had on him and his relationship with his children.
Mr Gabriel says that his name is now smeared throughout TAFE and he is on a blacklist.
Mr Gabriel seeks $90 000 compensation and that the decisions by TAFE be revoked. We understand this to mean the decisions to:
1. exclude him from TAFE for a period of 60 days from 5 March 2021 and
2. mark his educational record as 'Fail' in regard to the 3D Modelling class in the first semester of 2020 as part of the Diploma.
Mr Gabriel also seeks orders that Ms Senj and Mr Daalmeijer-Power be held accountable and that there is implementation of anti-racism and anti-discrimination training classes at the TAFE.
At the commencement of proceedings TAFE objected, on the basis of relevance and procedural fairness, to the admission of a paragraph in Mr Gabriel's email dated 18 January 2022 that Mr Daalmeijer-Power discriminated against him on the ground of homosexuality. Mr Gabriel did not press for the paragraph to be read and the Tribunal ordered that the relevant words would not be read into evidence.
TAFE relied on the documents they provided to Anti-Discrimination NSW as well as witness statements from Mr Daalmeijer-Power, Mr Todd, Ms Senj, Ms Chloe Mackie and Mr Aaron Waite. All witnesses were cross examined.
Mr Daalmeijer-Power denied that he made any racist or derogatory comments to Mr Gabriel. Specifically, Mr Daalmeijer-Power denied that:
1. he picked on Mr Gabriel because of his race or generally;
2. referred to him as a 'Lebo' or 'Ali Baba';
3. said that he had body odour and needed to wear deodorant; and
4. said to him that 'Middle Eastern' people made good builders and plumbers but that screen and media 'is not a subject for your kind of people'.
Mr Daalmeijer-Power admits that on the first day of class in 2019, he called Mr Gabriel 'Ali' as this was the preferred name on the TAFE NSW system. Once Mr Gabriel notified Mr Daalmeijer-Power that his name was 'Alan', Mr Daalmeijer-Power's evidence is that he called Mr Gabriel, 'Alan' and assisted him to change his preferred name on the TAFE NSW system to 'Alan'.
Mr Daalmeijer-Power admits that there was an occasion when Mr Gabriel had to wait for the virtual reality headset to be cleaned before he could use them. Mr Daalmeijer-Power's evidence is that the virtual reality headset had to be cleaned before and after being used by any student due to hygiene issues.
[5]
Allegation 1: Picking on Mr Gabriel's accent and referring to him as a 'Lebo', 'Ali', and 'Ali Baba'. Saying 'when you can be an Australian?', 'when you'd like to be Australia (sic) like us?', 'why you cannot speak like us?', 'why you speak in a different accent?'
Mr Gabriel's allegations in regard to being called a 'Lebo' and 'Ali Baba' and the comments about his accent and about not being Australian are alleged to have occurred in 2019 which is outside of the complaint period. However, as there was no objection from the respondent and the respondent had an opportunity to lead evidence and make submissions in regard to these allegations, they will be considered and determined.
Mr Gabriel alleges that he was discriminated against by Mr Daalmeijer-Power because his name appeared on the TAFE NSW system as 'Ali'.
Mr Gabriel alleges that on approaching Mr Daalmeijer-Power to change the preferred name on the TAFE NSW system from 'Ali' to 'Alan', Mr Daalmeijer-Power said the words 'what's wrong Ali Baba' and laughed at his accent.
Mr Gabriel alleges that Mr Daalmeijer-Power said the words 'good morning Lebo' as he was entering the classroom in the presence of other students in the classroom. As referred to above Mr Daalmeijer-Power denied having made these remarks.
At 10.48am on 31 May 2019, Mr Gabriel sent an email to Mr Daalmeijer-Power and another person: '… my display name still not fixed… can you please try to fix the name…'
Within 10 minutes, Mr Daalmeijer-Power sent an email to Mr Edwards stating 'can you assist with this as the student login is Alan but his display name is Ali. He is getting upset by not seeing his real name rather than a nickname a teacher called him in 2005.' When Mr Edwards informs Mr Daalmeijer-Power that the issue has been resolved, Mr Daalmeijer-Power responds to Mr Edwards with the words 'you are awesome.'
The Tribunal accepts the respondent's submission that this conduct by Mr Daalmeijer-Power demonstrates that he is doing an act that is beneficial to Mr Gabriel and is demonstrating empathy in being aware that the name 'Ali' is upsetting to Mr Gabriel. Mr Daalmeijer-Power's response to Mr Edwards suggests that he was genuinely pleased that the matter has been resolved for Mr Gabriel.
During cross examination, Mr Gabriel initially said that Mr Daalmeijer-Power did not help him to change his preferred name on the Moodle (the Course Management System) and that it was Kerry Marsh from administration. A little later he said that he did not know who helped him change his preferred name on the Moodle but thanked Mr Daalmeijer-Power anyway.
The respondent submits that the fact that Mr Gabriel did not at this stage take the opportunity to ask Mr Daalmeijer-Power to not refer to him as 'Lebo' or 'Ali' or 'Ali Baba' is indicative that in fact Mr Daalmeijer-Power never called Mr Gabriel those derogatory names.
Mr Gabriel was asked during cross examination why he did not complain to Mr Daalmeijer-Power about being called Ali Baba or other derogatory names. Mr Gabriel said that he did not complain because he was scared of Mr Daalmeijer-Power, that Mr Daalmeijer-Power was powerful and had he complained he would have been 'gone by now'.
The respondent submits that Mr Gabriel's evidence that he was too scared to complain to Mr Daalmeijer-Power should be rejected as it is contrary to the evidence that Mr Gabriel did in fact make numerous complaints to Mr Daalmeijer-Power about other teachers.
The comments he made about other teachers to Mr Daalmeijer-Power in October 2019 were critical of the teachers. In regard to one teacher Mr Gabriel says 'he doesn't know how to teach' and 'cant give what he can't (sic) have', '(his teaching) not understandable, not enjoyable'.
On 11 June 2020, Mr Gabriel made a complaint about one of his teachers, Mr Todd to Mr Daalmeijer-Power. On 14 June 2020, Mr Gabriel sent an email to Mr Daalmeijer-Power stating:
Hi Craig, its me Alan Gabriel thank you so much for ignoring my two emails regarding the 3D animation class please keep ignoring me that's it is fine!! I am not worried about the test no I can pass it easily I will email to you and me email it to everybody in the Faculty just to keep a record and I will when I email it I will screen record it as well my big worries is the same teacher next semester he's going to teach us the same thing and also after effect that's it is the biggest problem for me you know we need to resolve it before the next semester I don't need someone just ignore me my email ok money for this class not here just to West (sic) anybody's time I have a right I think I'm entitled to practice my right
The email from Mr Gabriel to Mr Daalmeijer-Power is objectively concerning. He is mocking Mr Daalmeijer-Power 'keep ignoring me that's (sic) it is fine!!' He goes on to threaten Mr Daalmeijer-Power to email some document to everybody in the Faculty. Mr Gabriel demonstrates his low regard for the teaching at TAFE by suggesting that the content next year will be the same and that people are wasting time.
However, on 25 June 2020 in a meeting about the complaint against Mr Todd, that Mr Gabriel attended together with Mr Daalmeijer-Power and Ms Senj, Manager TAFE Services, Mr Gabriel made a number of complimentary statements about Mr Daalmeijer-Power to him and Ms Senj, saying 'I think you are the best teacher I have ever seen in my life' and thanked him for being a big help to him.
The Tribunal also takes into account that when Mr Gabriel indicated to Mr Daalmeijer-Power on 30 July 2019 that he was withdrawing from the Certificate IV in Photography and Photo Imaging course because of 'difficulties and family commitments', Mr Daalmeijer-Power contacted Mr Gabriel and wrote:
Hi Alan
Not a problem, I was just worried about you and wanted to make sure that you are ok and know the options are available.
As previously mentioned there is the support available via counselling to support any student who may have issues with study and life balances and we have our ESO's available as well to assist you.
Looking forward to seeing you this week and take care.
The response from Mr Daalmeijer-Power is kind, considerate and respectful and is in stark contrast to Mr Gabriel's allegations that Mr Daalmeijer-Power was frightening, and humiliated and degraded him in front of other students by his racist statements.
Mr Aaron Waite, a student in the same course as Mr Gabriel in 2019, gave evidence that he had no recollection of Mr Daalmeijer-Power referring to Mr Gabriel as Ali Baba or asking him when he would be an Australian or words to such effect. Mr Waite did not recall Mr Daalmeijer-Power being discriminatory or racist at any time during his time as a student in Mr Daalmeijer-Power's class.
Mr Gabriel cross examined Mr Waite. He accused him of being part of the racist group and bullying and excluding him during the course. Mr Waite's evidence during cross examination was direct, responsive and consistent with his statement. He denied that he disliked Mr Gabriel or excluded him or made fun of him.
Based on Mr Daalmeijer-Power's conduct towards Mr Gabriel as recorded in the documentary evidence and on Mr Daalmeijer-Power's oral evidence before the Tribunal, the Tribunal accepts his evidence that he did not call Mr Gabriel the names as Mr Gabriel alleges.
Mr Gabriel assumed that when he commenced the Certificate III in April 2019 Mr Daalmeijer-Power was responsible for and caused his preferred name on the TAFE NSW system to appear as 'Ali' because he discriminated against him on the basis of race. There is no evidence to support the proposition that Mr Daalmeijer-Power was responsible for causing Mr Gabriel's name to appear as 'Ali' and Mr Daalmeijer-Power denies that he caused Mr Gabriel's name to appear as 'Ali'.
The evidence demonstrates that Mr Daalmeijer-Power did not change Mr Gabriel's preferred name on the system himself but that he had to ask another staff member, Mr Edwards to change Mr Gabriel's preferred name on Moodle.
Mr Gabriel says that he changed his name in 2015 to be Alan Gabriel, however Mr Gabriel gave no consideration to the fact that his name on the TAFE NSW system may have appeared as 'Ali' because he had been enrolled in TAFE NSW prior to the 2015 name change, or that Mr Daalmeijer-Power was not the person responsible for the way in which names appeared on the TAFE NSW system.
The Tribunal accepts Mr Daalmeijer-Power's evidence that he did not cause Mr Gabriel's preferred name on the TAFE NSW system (Moodle) to appear as 'Ali' and that he assisted Mr Gabriel to correct his name on the Moodle.
After the consideration of all of the evidence, the Tribunal finds that Mr Gabriel has not proved that Mr Daalmeijer-Power did make the statements to Mr Gabriel as alleged. The Tribunal is not satisfied Mr Gabriel has established allegation 1.
[6]
Allegation 2: Mr Daalmeijer-Power suggesting to Mr Gabriel that he had body odour and needed to wear deodorant because he was a person from a Middle Eastern background
Mr Gabriel alleges that when he was in the Green Room, Mr Daalmeijer-Power said to him 'you Middle Eastern guys you know where to buy deodorant?'
Mr Gabriel states in his email dated 13 March 2021 to the Tribunal that Mr Daalmeijer-Power knows that his name is Ali and that he is not from an Australian background and he picks on my accent and he thinks Middle Eastern is stinking.
Mr Daalmeijer-Power denies that he said such words to Mr Gabriel. Mr Daalmeijer-Power denies teaching in the Green Screen Room or being in the Green Screen Room with Mr Gabriel.
Mr Waite recalls a general comment being made by one or more of the teachers for people to use deodorant but that it was not directed at any one person.
The Tribunal has formed the view that Mr Gabriel may have heard Mr Daalmeijer-Power or another teacher make a general comment for people to use deodorant and assumed that it was directed at him specifically.
We have formed this view because of Mr Gabriel's conclusion that Mr Daalmeijer-Power discriminated against him because his name appeared as 'Ali' on Moodle (allegation 1) and because of the need to clean the headsets (allegation 3) which we have also found was directed at all students and not just at Mr Gabriel. An incident such as the cleaning of headsets after its use by each student is not controversial but Mr Gabriel concluded that the conduct was because of his race and was discriminatory.
We have also considered Mr Gabriel's emails to Mr Daalmeijer-Power and others and have formed the view that Mr Gabriel's comments make assumptions that he is being discriminated against without an evidentiary basis.
The Tribunal is not satisfied that it has been proven that Mr Daalmeijer-Power said the words as alleged by Mr Gabriel.
[7]
Allegation 3: Mr Daalmeijer-Power prevented Mr Gabriel from handling a virtual reality (VR) headset after it had been passed to all other students, suggesting that he would make it dirty or unhygienic
Mr Gabriel alleges that sometime at the end of March or early April 2020, Mr Daalmeijer-Power handed a VR headset to every single student but not to Mr Gabriel. It is alleged that Mr Daalmeijer-Power said to Mr Gabriel: That's all. I don't have water and sanitizing cloth to clean after you. Mr Gabriel believed that Mr Daalmeijer-Power was referring to the fact that his dark skin would make the VR headset dirty or unhygienic.
Mr Daalmeijer-Power's evidence is that there was an incident involving VR headsets:
On one occasion in an Interactivity class, we used VR headsets. The VR headsets were worn by students and there were only two headsets for the class. This class, like other classes in this period, was during the COVID-19 pandemic and it was part of the TAFE NSW processes that equipment, like the VR headsets, had to be wiped before being handed to another student. By the time it was, Mr Gabriel's turn to use the VR headsets, the class had run out of wipes to wipe down the VR headsets. I told the class that I was going to get more wipes. When I came back, Mr Gabriel said words to the effect of, 'I've got to go because I've been called back home'. I deny that I said or did anything that was racist or motivated by racist thoughts.
Mr Daalmeijer-Power was not challenged in cross examination in regard to his assertion that there were only two VR headsets. The Tribunal accepts Mr Daalmeijer-Power's evidence that there were only two VR headsets and not a VR headset for each student as alleged by Mr Gabriel.
The Tribunal considers it likely that VR headsets would be wiped before and after use, particularly during the COVID-19 pandemic.
The Tribunal finds that there was an occasion where Mr Daalmeijer-Power said to Mr Gabriel words to the effect that the VR headsets would need to be cleaned before and after he used them, however the Tribunal rejects that this statement was made because of his race. It may well be that Mr Gabriel believed that Mr Daalmeijer-Power said those words because of his race, however simply because a person holds a belief about another person's conduct does not make that person's conduct discriminatory.
The Tribunal accepts Mr Daalmeijer-Power's evidence that the requirement to clean the VR headsets before and after use by each student was based on a need for hygiene and was not related in any way to Mr Gabriel's race.
[8]
Allegation 4: Advising Mr Gabriel that 'Middle Eastern' people made good builders and plumbers but that screen and media 'is not a subject for your kind of people'.
The allegation is that Mr Gabriel was seeking assistance with the assessment in Mr Todd's class and Mr Daalmeijer-Power said to Mr Gabriel words to the effect: 'why don't you leave this subject I know Middle Eastern they're good to do builders and plumber why don't you try other subjects the screen and media but not for your kind of people.' Mr Gabriel believes that the reference to 'your kind of people' is to his ethnic background.
During cross examination, it was put to Mr Daalmeijer-Power that in the Green Room Mr Daalmeijer-Power said to Mr Gabriel: I can see that you are struggling with English and best to go study English and building. Mr Daalmeijer-Power denied that he said those words.
The question put to Mr Daalmeijer-Power and the allegation made by Mr Gabriel in his email dated 13 March 2021 are different. There is no reference to Mr Daalmeijer-Power saying that Mr Gabriel was struggling with English or that he should study English or reference to the Green room in the email dated 13 March 2021.
The Tribunal is not satisfied that the incident occurred. There is no fact from which the Tribunal can make an inference that Mr Daalmeijer-Power said the words as alleged by Mr Gabriel in the complaint or as suggested to him during cross examination.
[9]
Allegation 5: TAFE NSW discriminated against Mr Gabriel on the ground of race in the area of education when it barred him from resuming his Diploma based on false allegations that he breached the student code of conduct.
The allegation by Mr Gabriel is that NSW TAFE barred him from continuing with his Diploma based on false allegations made by Mr Daalmeijer-Power against him on the ground of race within the meaning of s 17(2)(a) or (b) of the ADA.
Mr Gabriel must satisfy the Tribunal that Mr Daalmeijer-Power's conduct from 19 October 2020 was unlawful in that he discriminated against him on the ground of race by making false allegations of violent behaviour and that Ms Senj and or others within NSW TAFE discriminated against him on the ground of race by denying him access to study towards the Diploma at NSW TAFE or excluding him from TAFE NSW for a period of 60 days with ongoing conditions.
It is not in dispute between the parties that on 19 October 2020 when Mr Gabriel informed Mr Daalmeijer-Power that he sought to re-enrol in the Diploma Mr Daalmeijer-Power did not permit him to do so but required him to contact Ms Senj.
As set out briefly in paragraphs 12 to 17 above, Mr Gabriel was precluded from re-enrolling in the Diploma from 19 October 2020 and on 5 March 2021 Mr Gabriel was notified that a decision had been made by TAFE NSW that he had committed breaches of the TAFE NSW Student Conduct and Discipline Policy and as a result was excluded from TAFE NSW for a period of 60 days.
Ms Senj's evidence is that if Mr Gabriel re-enrols in NSW TAFE, his re-enrolment request would be managed under the History of Violent Behaviour Policy and Procedure which would involve a risk assessment being carried out.
It is necessary to consider why Mr Daalmeijer-Power formed the view that Mr Gabriel could not re-enrol in the Diploma on 19 October 2020 before speaking to Ms Senj.
On 11 June 2020 at 6.56pm Mr Gabriel sent an email to Mr Daalmeijer-Power making serious allegations against Mr Todd including that he:
1. shouted at Mr Gabriel to quieten his children while Mr Gabriel was attending class via MS Teams;
2. has anger management issues, nobody asks questions because he may react like a volcano eruption;
3. exploded in his face as a result of a question asked by him;
4. made wrongful allegation that Mr Gabriel failed to send through the assignment, which he did; and
5. wants Mr Gabriel to fail the subject he is teaching.
Prior to this email, Mr Gabriel sent an email at 11.34 am on 11 June 2020 to Mr Daalmeijer-Power about Mr Todd. In the email, Mr Gabriel said that Mr Todd was not 'cooperating' with students, makes students feel 'like nothing' and that he is not able to 'give you anything at all'. Mr Gabriel asked Mr Daalmeijer-Power to talk to Mr Todd.
Mr Todd's evidence was that during the class on 11 June 2020 he spent some 30 minutes assisting Mr Gabriel on a one on one basis. Sometime later in the class, Mr Gabriel asked if he could interrupt while Mr Todd was assisting another student on a one on one basis. Mr Gabriel then asked, what will happen if I don't submit my work? Mr Todd replied that Mr Gabriel is required to submit the work to pass the course. Mr Todd's evidence was that Mr Gabriel became very agitated and started to talk very fast and in an angry tone. As he left the class he said 'thank you' in an angry tone. Mr Gabriel did not dispute Mr Todd's account.
Mr Daalmeijer-Power decided to investigate Mr Gabriel's complaint against Mr Todd. As part of the investigation he received further emails from Mr Gabriel, spoke to Mr Greg Appel (Mr Gabriel's teacher for Industry) and received an email from him in regard to Mr Gabriel's conduct in the Industry class on 11 June 2020.
Mr Daalmeijer-Power sent emails to persons present in Mr Todd's and Mr Appel's class on 11 June 2020 in the following terms:
Can you please inform me of your recollection of the events that occurred in the 3D class on 11th of June 2020 and also Industry class in the afternoon. Last week we had an incident in class which requires investigation and we are needing independent student statement.
Mr Appel's email to Mr Daalmeijer-Power on 12 June 2020 stated that Mr Gabriel entered his classroom on 11 June 2020 midway through the lesson. That he seemed agitated and emotional and said that he was not keen to be back at TAFE if it continued to be delivered online. Mr Appel said that he did not expect Mr Gabriel to be in class as he had already submitted the required assessments. Mr Appel noted that Mr Gabriel could be a demanding student but that he had considered his background of arriving from Iran and the difficulties he might have had there as a writer as well as the fact that English is not his first language. Mr Appel stated that Mr Gabriel has complained about students being racist to him but that he has not observed it. Mr Appel continued that he is wary of Mr Gabriel as he records things on a device around his neck.
On 14 June 2020, Mr Gabriel sent an email to Mr Daalmeijer-Power as set out in paragraph 56 above accusing him of ignoring his emails from 11 June 2020.
On 15 and 16 June 2020 Mr Daalmeijer-Power responded to Mr Gabriel's emails informing him that he was not being ignored, that he was looking into the matter.
On 17 June 2020, Mr Gabriel entered an Interactivity class via MS Teams taught by Mr Daalmeijer-Power. Mr Gabriel had completed the assessments for the class and Mr Daalmeijer-Power's evidence was that he was not expecting Mr Gabriel to be in the class.
Mr Daalmeijer-Power's evidence was that Mr Gabriel commenced to speak to the class about the allegations he had made against Mr Todd in terms similar to that set out in the email dated 11 June 2020. Mr Daalmeijer-Power's evidence was that he recalled Mr Gabriel saying words to the effect that 'we were talking about him'.
Mr Daalmeijer-Power told Mr Gabriel that they were not talking about him and that his behaviour was inappropriate and that he was to cease commenting on the allegations.
On 17 June 2020, Mr Daalmeijer-Power sent an email to Mr Gabriel in regard to his conduct in the Interactivity class via MS Teams earlier in the day. Mr Daalmeijer-Power expressed his view that Mr Gabriel's conduct of commenting on the allegations against Mr Todd in front of students in his class was inappropriate behaviour as it was disrespectful and that he has an obligation to comply with student conduct conditions. Mr Daalmeijer-Power informed Mr Gabriel that he was investigating the allegations and would have his findings by next week.
Mr Gabriel responded on 17 June 2020. He continued to assert that he spoke during the class because the discussion was about him. He also made reference to a 'racist', which seems to be a reference to Mr Todd but it may be a reference to Mr Daalmeijer-Power.
Mr Todd sent an email to Mr Daalmeijer-Power on 18 June 2020. In the email he said that he was feeling stressed about Mr Gabriel's email as there was mention of a tribunal and lawyers and asked Mr Daalmeijer-Power whether he considered whether Mr Gabriel may pose a physical threat to him.
On 19 June 2020, Mr Daalmeijer-Power sent an email to Mr Gabriel in regard to his complaint against Mr Todd. Mr Daalmeijer-Power informed Mr Gabriel that he had read the complaint, made inquiries with others who were present at the time of the incident, received their accounts and reviewed emails to compare the events. Mr Daalmeijer-Power asked Mr Gabriel to provide him with his account and the outcome he hoped to see as an outcome of the complaint.
Mr Gabriel sent an email to Mr Daalmeijer-Power in response later on 19 June 2020. The email was also sent to the NSW Minister for Skills and Tertiary Education and Ms Senj.
Mr Gabriel's email commenced by stating that he would like to withdraw any complaint as he didn't have any time to waste but sought assistance to complete the final exam. He stated that if the assistance was from Mr Todd, Mr Todd must treat him with respect and dignity and not get angry. Further, he stated that he was not to do any future subjects with Mr Todd and would seek to go to a different TAFE.
The email continued:
Just to be more clear, I Allen Gabriel clearly said that I will be in Kingswood, Nepean TAFE for next semester but I DO NOT WISH TO CONTINUE TO ATTEND, MR GREGORY TODD, TEACHER. GAMES AND DIGITAL MEDIA CLASS ONLY I have no problem with any other teacher at all. I will attend all the classes just to be very clear.
One more again what I want please finish the subject or submitted, maximum time approx. will take up to 20 minutes. All this problem is resolved. Wouldn't 20 or less than 20 minutes please understand me PLEASE Hon Dr Geffrey Lee, PLEASE Miss Mary Sanj, please. Mr Craig Daalmeijer-Power please God assist me to finish the subject. Why would you like to ask late and make a real problem for me? I have a family to look after. I have responsibilities. I am a father. Why don't you understand me?
why you want to make my life hard why don't you like to cooperate with me and let me pass and let me go to next semester and make life easy why you doing all that I have no idea!!
The Hon Dr Geffrey Lee MP the Minister for Skills and Tertiary Education. I know you're a good man. In the past. You help me in lots of circumstances. Please help me to explain to the head teacher that he is able to help me to talk to the 3D development teacher. In the Microsoft meeting, he arranged the date. Open the blender software. Things the subject submitted within 20 minutes. I'm finished the problem. Can you please explain to them PLEASE
PLEASE Miss Mary Sanj, the manager of Kingswood TAFE. Can you please explain to them as apparently we speak different languages so they don't want to understand me. I want to finish the subject and submitted. They keep on going and they want me to fail to go to next semester. They want to make my life harder. I'm not sure how I can deal with them next semester that's will be questioned in God's hands. I have no idea how can I do it for this little thing. I've been back and forth nearly two weeks, getting nowhere. Can you PLEASE EXPLAIN TO THEM THEY CAN DO IT, PLEASE
On 22 June 2020 Mr Daalmeijer-Power sent an email to Mr Gabriel acknowledging that he sought to withdraw the complaint against Mr Todd. The email continued:
You have asked to be able to return to class and this can be accommodated with a duality of respect and dignity applied to both parties. Take NSW is committed to offering vocational education and training to the entire community. We aim to provide an opportunity to study, learn and develop skills in a safe and supportive environment to both staff and students. You have the right to be treated fairly and with respect by teachers, other staff and students, as well as you have the responsibility to treat. All staff, students in general public with respect, fairness, and curtesy (sic). If you can reply to me with your commitment to ensuring your behaviour is at this expected level, then you should attend the 3D class this week and next week to ensure that you are able to complete the assessment tasks as allocated within your course programme. This will be with Mr Gregory Todd. In regard to your request to not have Mr Gregory Todd as your allocated teacher for next semester, this is not possible due to a number of factors.
Mr Gabriel responded later on 22 June 2020 that he has at all times been respectful to Mr Todd and that it was Mr Todd that reacted in an angry manner towards him which caused him humiliation and disrespect.
Mr Daalmeijer-Power's evidence, which was not challenged, was that he formed the view at this time that Mr Gabriel's conduct in his class, Mr Todd's class and Mr Appel's class on 11 June 2020 was below the level expected of students at TAFE NSW.
Mr Daalmeijer-Power's evidence was that as at 25 June 2020 he formed the view that Mr Gabriel would need to sign a behavioural contract to confirm that his behaviour would not occur again. He had included the finding in an email which was not sent to Mr Gabriel.
On 16 July 2020, Mr Todd sent an email to Mr Gabriel reminding him that he needed to complete the assessment by next Monday. Later that day Mr Gabriel responded in an email in the following terms:
We go back to Byzantine Iconoclasm, which came first, the chicken or the egg?
thanks for the email you made my day miserable like a piece of s*** my day just like.just would like to remind you that last time when you were with me spent from 9:30 am to 12:31 pm and we could not do it then, I send it to you, I mean the main object and you have done some work as resending it to me you remove the picture and said to me it's going to be redesigned.
I really am I cannot see any point where you're heading.
about your Second question what the car was the work we have done in the classroom you were there; you are going well now nothing you make happy right now everything is just bad.
because I complain about you trying to make my life miserable that's all Mr Todd
I think your subject or the class will make me after I graduate you done your marking other past or make me the Prime Minister of Australia or the President of United States!!
and immediately after you mark me as a pass, I will have a job that makes 100 million a year!!
do you feel one-day one-moment thing about yourself about other people I have not I don't have the capacity to do play with the keyboard do you understand?
I withdraw my complaint I don't want to go ahead with my complaint because I don't have time to waste this subject nothing to do with the screen and media, I entered course the film director Not to be like a dog running behind his tail I have a meeting with the TAFE manager and Craig, but unfortunately, you don't want to cooperate one minute after 12:30 pm there this course on the subject you delay me for three weeks just to get revenge!!
Me nothing will not give me any future any job anything that's all just wasting time.
once again I have an iMac the keyboard doesn't give me the full option to do anything so understand I'm sure you don't want to understand because everyone has a different personality, that's why in the next semester I will not attend any class of yours I mean I will not attend any classes I withdraw myself from all what you going to teach. I don't wanna have anything to do with you in person.
in the past, I had done courses an recently I do some courses with a different teacher I have no issue of all you can see the history ok we'll never see a teacher like you at all!!
my whole tire life you think you are subject harder than design and develop an APP??!!
or web design or filming no, it's not difficult why because the teacher is smart they know how to deal with the student they have a passion they are not arrogant that's why everything going nice and smooth your case is different I will never meet in my whole life teacher like you.
you send me this email this morning you made my day miserable like a piece of s*** My day.
I like to clear something for the future reference I will not enrol in any subject that you teach at all, there is a saying:: treat people as you like to be treated while you teach to understand this meaning
On 19 July 2020, Mr Gabriel sent an email to Mr Daalmeijer-Power indicating that he wished to defer from the Diploma course due to Covid.
Ms Senj's evidence is that sometime prior to October 2020, Mr Daalmeijer-Power indicated to her that he was concerned for staff and students' well-being if Mr Gabriel returned and behaved in a similar manner as before.
There is no dispute between the parties that on 19 October 2020, Mr Gabriel met with Mr Daalmeijer-Power and informed him that he wished to return to complete the Diploma in 2021. Mr Daalmeijer-Power said to Mr Gabriel words to the effect: you have to speak to Mary (Senj).
On 1 December 2020, Mr Gabriel sent an email to Mr Daalmeijer-Power and Ms Senj asking what needed to be done.
On 2 December 2020, Ms Senj sent an email to Mr Gabriel acknowledging receipt of his email and indicating that she would contact him the next day.
On 8 December 2020, Mr Gabriel sent an email to the Hon Dr Geoff Lee MP accusing Mr Todd of being an angry teacher, that Mr Daalmeijer-Power did not want Mr Gabriel to complain against Mr Todd, that Mr Daalmeijer-Power intimidated and threatened him and that Ms Senj was initially very aggressive. He continued that he is being made an example of because he complained about a teacher and TAFE is not responding in a timely manner to his request to return to the Diploma so as to deny him an opportunity to return at the start of 2021.
On 15 December 2020, Ms Senj sent an email to Mr Gabriel, apologising for the delay and informing him that the matter could not be progressed until teachers return from leave, which was on 18 January 2021.
Ms Senj asked Mr Daalmeijer-Power to fill out a form: History of Violent Behaviour Reporting Record. Mr Daalmeijer-Power wrote the following words in response to the question about the disclosure and additional information:
Persistent verbal aggressive behaviour which is non contact in nature. Behaviour which seriously interferes with the psychological health, safety and well being of staff, students and others who may be at TAFE NSW Kingswood campus. Repeated incidents that lead to reasonable conclusion that students behaviour impacts on the safety of others. The student has shown to be persistently aggressive in communication and actions within the classroom, in both face to face and virtual environments. Emails received from staff and students confirmed their behaviour, with some mentioning that their fearful of the potential harm that the student may cause.
Mr Daalmeijer-Power also filled in a student conduct and discipline breach report. The alleged breach was stated to have occurred on 11 June 2020 in his class, Mr Todd's class and Mr Appel's class. The conduct was said to be aggressive and inappropriate behaviour.
On 12 January 2021 Ms Senj sent an email to Mr Gabriel stating that she had received information that indicated that Mr Gabriel may have had a history of violent behaviour and may present a risk in the TAFE NSW environment. Ms Senj indicated that a risk assessment would need to be conducted by a small panel of persons who would like to meet with him. Mr Gabriel was not provided with any information about the alleged history of violent behaviour.
On 19 January 2021, Mr Gabriel sent an email to Mr Daalmeijer-Power, Ms Senj and the Hon. Dr Lee, Minister for Skills and Tertiary Education. Mr Gabriel said that Ms Senj 'has no idea', 'just waiting for Mr Daalmeijer-Power'. 'Mr Daalmeijer-Power is using excessive government power, misleading and lie (sic) on information he provided last year'. 'Now I feel like I am dealing with the GANG not respectable department to the government even the street thugs they have some morals and integrity.' Mr Gabriel continued to allege that Mr Daalmeijer-Power knows that he is untouchable and that there is corruption.
On 20 January 2021, Mr Gabriel sent an email to Mr Daalmeijer-Power, Ms Senj and the Hon. Dr Lee, Minister for Skills and Tertiary Education. Mr Gabriel indicated that he did not want to meet with Ms Senj or Mr Daalmeijer-Power, and he wanted the allegations in writing with specific particulars. He noted that he will be taking the matter to the Ombudsman and the tribunal. He stated that Ms Senj does not 'have a good personality to face the truth.'
At around this time, Ms Senj became aware that Mr Gabriel had deferred his course and was therefore not seeking re-enrolment, as such Mr Gabriel was an existing student and not a prospective student. Ms Senj decided to proceed the matter as a Student Conduct and Discipline Report.
On 22 January 2021, Ms Senj sent Mr Gabriel a letter which included details of the alleged breach of clauses 4.5.11, 4.5.12 and 4.5.22 of the TAFE NSW Student Conduct and Discipline Policy. The breaches allege aggressive, disruptive and inappropriate conduct which potentially impacted on the wellbeing of others. The conduct was alleged to have occurred on 11 June 2020 on two occasions in two different classes and on 17 June 2020. Mr Gabriel was advised that he was to remain excluded from, and denied access to, TAFE NSW until the investigation of the alleges breaches was concluded. As part of the investigation, he was provided with an opportunity to present his case either verbally or in writing either face to face or via video conference. He was asked to respond by 5 February 2021.
On 30 January 2021, Mr Gabriel sent a long email to Ms Senj and Minister Lee repeating complaints about Mr Todd, such as: he was bullying me, angry all the time, not enthusiastic, not setting good example, cannot explain method, and spreading negative rumours. Mr Gabriel said that he would bring defamation proceedings in court, the teachers' behaviour is going to cost TAFE in terms of student numbers and accused Ms Senj of predetermining the matter against him.
On 1 February 2021, Mr Gabriel notified Ms Pearce of TAFE NSW that he had 74 GB of data. Ms Pearce asked Mr Gabriel to provide that data to her prior to the meeting so that it could be considered and informed him that Ms Senj and a disability consultant would be present at the meeting. TAFE NSW agreed for the meeting to be recorded.
On 2 February 2021, TAFE NSW organised a meeting for 23 February 2021 and asked Mr Gabriel to provide his evidence as soon as possible.
On 19 February 2021, Mr Gabriel sent an email to Ms Senj, Ms Pearce and to Minister Lee. Mr Gabriel did not wish for a disability consultant to be present at the meeting as proposed by TAFE NSW. Mr Gabriel sought for the meeting to be recorded. Mr Gabriel threatened to use the recording on social media and in a court of law and during an election. The email also stated that:
…I cannot accept any decision whatever. It's the outcome. It can't be. You are the judge and at the same time the plaintiff. This is wrong and I will fight it until the justice prevail. The faculty manager has no clue, only she's going to repeat whatever Greg Power, the head teacher tells her she works under his arm. So. It's obvious she listened only to him as I tried to explain to her my version of the story, but she didn't want to give me even five minutes to talk about it. …If anyone needs assistance as a disabled should take it to Greg Power, I think he is sick in the head and he needs some assisting with his rude behaviour. On the 23rd will meet and everything will be recorded. Send me an email to confirm the above points.
No meeting took place between Mr Gabriel and TAFE NSW. Ms Senj's evidence was that the meeting did not proceed because they had not received the evidence from Mr Gabriel and that she would not have been prepared for the meeting.
On 5 March 2021, Mr Gabriel was notified of TAFE's decision to exclude him from TAFE for a period of 60 days as a penalty. Findings had been made that his conduct on 11 June 2020 on two occasions in two different classes and on 17 June 2020 was angry and aggressive to the teachers and caused disruption to the class.
In forming this decision TAFE NSW also relied on emails from Mr Gabriel dated 19 and 20 January 2021 which were found to be inflammatory, aggressive, intimidating and threatening.
Mr Gabriel was informed that he could appeal Ms Senj's decision by 29 March 2021 in writing to the Regional General Manager and was provided with a postal address.
[10]
Tribunal's Consideration
Mr Gabriel submits that NSW TAFE directly discriminated against him, on the ground of race. No specific reference was made to the ADA by Mr Gabriel but we understood from the President's Report that the claim was that TAFE NSW acted contrary to s 17(2)(a) or (b) of the ADA, by treating him less favourably than a hypothetical comparator by barring him from continuing with his Diploma based on false allegations.
Mr Gabriel has to prove that TAFE NSW has treated him less favourably than they treated or would have treated a student in circumstances which are not materially different, that is not from a Middle Eastern background, and that the treatment was on the basis of race (s 17(2) and s 7(1) of the ADA).
Mr Gabriel does not rely on any evidence that demonstrates that TAFE NSW treated him differently compared to another student but submits that the Tribunal should make an inference to such an effect on the basis that his conduct did not on an objective basis constitute inappropriate conduct within the meaning of the TAFE NSW Student Conduct and Discipline Policy
Having considered Mr Gabriel's conduct which is in most part set out in documentary evidence, particularly his emails to TAFE, the Tribunal finds that there is insufficient evidence from which such an inference could be drawn that any of the decisions made by TAFE NSW made were on the ground of Mr Gabriel's race. The complaint of discrimination lacks substance.
The applicant's claim that the decision by TAFE to exclude him from studying for a period of 60 days as a penalty constituted discrimination on the ground of race must therefore fail.
[11]
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: 31 May 2022