Gidaro v Secretary, Department of Social Security,

Decision 1 For the reasons we give below Ms Simundic is unsuccessful in her discrimination complaints. The complaints are not substantiated and are dismissed. Factual background 2 Ms Vesna Simundic's relevant history with the University is that after successfully competing the first year of a Bachelor of Arts degree program in 1995, she enrolled in a Bachelor of Social Work degree program in 1996. In that year she passed three subjects and failed a fourth. In 1997 and 1998 she repeated that failed subject and passed it, and passed seven further subjects. In 1999 she passed two subjects and failed a third, which was her field placement. In 2000 Ms Simundic failed the repeat of the 1999 field placement subject, failed a further subject, Foundations of Law, and withdrew from another subject. In 2001 Ms Simundic commenced leave of absence from the social work degree program and has not returned to it. 3 Ms Simundic's failure in Foundations of Law resulted from her having applied for and received special consideration to sit for the exam at a later date. As she did not make arrangements to sit the exam within a specified time, a 'fail' mark was recorded. 4 Ms Simundic's failure in the 1999 field placement was the subject of an internal inquiry after Ms Simundic lodged grievance with the University. The inquiry upheld her grievance in part, and found that her placement has been unreasonably terminated. 5 Ms Simundic's failure in the 2000 field placement was the subject of an internal inquiry after Ms Simundic lodged a further grievance with the University. The inquiry rejected some of the complaints, and was unable to resolve the remainder. Procedural background 6 Ms Simundic lodged complaints with the Anti-Discrimination Board (ADB) on 7 November 2000 alleging discrimination on the grounds of race, imputed disability and age, all in the area of education, and alleging victimisation. She identified the University of Newcastle as the respondent to her complaints. The conduct complained of occurred in the period September to December 1998, two years before the complaints were lodged. 7 On 31 January 2002 the University responded to the allegations. On 23 February 2002 the President of the ADB exercised his discretion under s88(4) of the Anti-Discrimination Act 1997 (NSW) (AD Act) and accepted the complaints out of time. 8 After a failed attempt to conciliate the complaint the President, at the request of Ms Simundic, referred the complaints to this Tribunal for inquiry. 9 The matter was listed for hearing. At the and of 15 October 2003, the first day of hearing, after Ms Simundic had given her evidence, the respondent applied to the Tribunal under s111 of the AD Act for the complaints to be dismissed. 10 On 16 October 2003 the Tribunal refused the application and directed that the hearing proceed on an adjourned date. The hearing proceeded 12 February 2004 and concluded on 13 February 2004. Written submissions were subsequently filed. 11 Ms Simundic represented herself for a substantial part of the proceedings. She had legal representation only for her evidence in chief, and in relation to the s111 dismissal application. 12 The legal and evidentiary issues that are raised by a complaint of discrimination are complex. It was appropriate for the Tribunal to extend its assistance to Ms Simundic within the bounds discussed by the Full Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85. Further, the Tribunal used its powers under the Administrative Decisions Tribunal Act to "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (s73(2)), and to act with as little formality as possible, without regard to technicalities or legal forms (s73(3)). The Tribunal acted under its obligations to ensure that Ms Simundic understood the nature and legal implications of the issues that arose, to explain to her its procedures and rulings, and to ensure that she had the fullest opportunity practicable to be heard (s73(4)). 13 We note that after the time allowed for filing written submissions, after the conclusion of the hearing, Miss Simundic provided further written material to the Tribunal. We have taken into account this material in coming to our decision. 14 The facts as they were presented to us were many and complicated. Many of the matters raised by Ms Simundic, whatever their substance or merit assessed against other considerations, were not matters arising under the AD Act. The inquiry, and this decision, is limited to the matters complained of by Ms Simundic that are possible contraventions of the AD Act. 15 No documents in the form of pleadings were filed with Tribunal. The Tribunal directed that the inquiry would proceed on the basis of the President's report and any further statements filed (see eg Gidaro v Secretary, Department of Social Security, [1998] 400 FCA; (1998) 154 ALR 550 at pp 556-558). 16 The relevant allegations that Ms Simundic made were reasonably consistent from the time that she lodged her complaint with the ADB, but at times were obscured or complicated during her admirable efforts to present her own case. For purposes of this decision it is helpful to set out some of our reasoning when dismissing the application under s111, as it helps to define the issues as they had become clear during Ms Simundic's evidence. After the issues were defined in this way the respondent had a further four months to prepare its case. 17 In dismissing the s111 application we said: . . . there is evidence of Ms Simundic being subject to treatment which caused her a detriment and which may have been on the ground of her race . . . As well there is evidence of Ms Simundic being expected to meet standards of English expression and comprehension which, it might be argued, a higher proportion of people not of her race may be able to meet . . . . . . there is evidence - in fact we think it is probably conceded - that a disability was imputed to Ms Simundic and there is evidence of her being subject to treatment which caused her detriment and which may have been on the ground of her disability and which may have been less favourable treatment . . . . . . there is evidence of Ms Simundic having made an allegation which would, if established, be a breach of . . . s 50(c) [AD Act - victimisation]. 18 Ms Simundic did not maintain the age discrimination complaint, which was dismissed. Race 19 Ms Simundic identifies three ways in which she was treated less favourably on the ground of her race. In each instance she says that not being able to speak and understand English as fluently as if it was her first language is a characteristic of her national and ethnic origin, which is Bosnian. We agree that her not being able to speak and understand English as fluently as if it was her first language is a characteristic of her national and ethnic origin. Comment by Ms Flynn 20 In her affidavit of 29 August 2003 Ms Simundic said at [9] that "Ms Flynn . . . referred to me not understanding her because of my language". In her grievance to the University in 2000 Ms Simundic had complained of discrimination on the basis of her language (Grievance Enquiry Team (GET) Report 9 July 2001 at [3.4.1]); the GET Report did not elaborate on this grievance, and made no finding on it. 21 Ms Simundic says first that her placement supervisor, Ms Leanne Flynn, treated her less favourably on the ground of this characteristic when, in a meeting in September 1998, Ms Flynn is alleged to have said to Ms Simundic words to the effect "I cannot recall that Vesna. Maybe you did not understand very well, maybe your language". That account of what Ms Flynn is alleged to have said is in a written account of the whole meeting that Ms Simundic prepared and annexed to her affidavit. On 21 January 1999 Ms Simundic wrote to the Deputy Vice-Chancellor Professor English in a letter annexed to her affidavit, and said that what had been said by Ms Flynn was "I cannot recall that, maybe you did not understand very well, maybe your language or cultural difference". 22 The lawyer for the respondent, Ms Beach, submitted that these two accounts of what Ms Flynn said are inconsistent. In our view they are not inconsistent. The latter contains slightly more detail than the former, without in any way altering the essential nature of what Ms Simundic says she recalls was said. We note that Ms Beach elected to not cross-examine Ms Simundic, so Ms Simundic was given no opportunity to address any alleged inconsistency. 23 Ms Beach submitted that we should not accept Ms Simundic's accounts of what was said as credible because they differ, and were recorded by Ms Simundic one year and then five years after the event. Ms Beach relies on the documentary record of Ms Simundic's accounts, and says it speaks for itself in establishing that Ms Simundic's account is not credible. As we have said, however, in our view the accounts do not differ in any material sense. One of the documents was clearly written only four months after the event. The other is undated and Ms Beach speculates that it was written at the same time as the affidavit to which it is annexed. We do not know that to be the case. Again we note that Ms Simundic was not cross-examined. 24 Ms Beach submitted that there is no evidence that the comments were made by Ms Flynn. That is not so. There is in fact Ms Simundic's uncontested evidence. As we noted above, the University elected to not cross-examine Ms Simundic, so it was at no stage suggested to Ms Simundic that she misremembered what was said or had fabricated her account of it. If there was another version of Ms Flynn's comments it would have come from Ms Flynn herself, but the University elected to not call her to give evidence. From that we infer that had Ms Flynn given evidence, it would not have assisted the University's argument that the comments were not made as Ms Simundic alleges. (Jones v Dunkel (1959) 101 CLR 298 per Kitto J at 308; Windeyer J at 322). 25 We have been given no reason to not accept that the comment was made as alleged by Ms Simundic. The question is whether the making of the comment was discriminatory. Was Ms Simundic treated less favourably than a person not of that race was or would have been treated in the same circumstances? For purposes of making the comparison, the circumstances are that of a field supervisor rejecting an account given by a student of a previous discussion, in the belief that the student had misunderstood what had previously been said. 26 We are of the view that a person not of Ms Simundic's national and ethnic origin, for example a person whose national and ethnic origin was Anglo-Australian, would have been treated differently in the same circumstances. If their account was dismissed in the belief that they had misunderstood what had previously been said, it clearly would not have been on the ground of the race-based characteristic of not being able to speak and understand English as fluently as if it was their first language. Some other reason would necessarily have been suggested for the belief that they had misunderstood. 27 Is this 'different' treatment less favourable treatment? For there to be less favourable treatment, and so unlawful discrimination, the treatment must cause detriment to the person (Haines v Leves (1987) 8 NSWLR 442 at 471C per Kirby P). By detriment we mean some disadvantage relative to the actual or hypothetical comparator. 28 Ms Simundic's evidence is that Ms Flynn's comments caused her trauma and psychological damage. It can be argued that emotional harm can be a 'detriment' for purposes of assessing less favourable treatment but we do not need to decide that in this matter. 29 Even if emotional harm can be a 'detriment' for purposes of assessing less favourable treatment, the most that we can reasonably accept from Ms Simundic's own account of the effect of Ms Flynn's comments is that they upset her - we have no evidence of any actual damage she has suffered. Nor is Ms Simundic specific in identifying which of the many comments she alleges against Ms Flynn were the ones that hurt her. The extent of the "verbal abuse" Ms Simundic alleges against Ms Flynn is well beyond the single reference Ms Flynn made to national and ethnic origin. In the circumstances there is no evidence that it was Ms Flynn's to reference to national and ethnic origin that caused Ms Simundic her to suffer a detriment. There is therefore no substantiated breach of the Act. Access to blind marking 30 In her affidavit of 29 August 2003 Ms Simundic said at [9] that "the policy of 'blind marking' could not protect me but in fact singled me out from other students". In her grievance to the University in 2000 Ms Simundic had complained of the process of blind marking (Grievance Enquiry Team (GET) Report 9 July 2001 at [5.0-5.3]) but not of discrimination in that process. 31 On 21 January 1999 Ms Simundic wrote to Professor English in a letter that is annexed to her affidavit, and said If a student who . . . came from a non-English speaking background, without being able to read, write and communicate on the same level as students who are born here, does the policy of blind marking gave an excellent opportunity to mark unfairly? . . . when it comes to a non-English speaking student . . . our ability to write is very recognizable . . . denying that our work is NOT recognizable is the core of discrimination 32 The lawyer for the respondent, Ms Beach, gave evidence for her own client by way of affidavit in which she purports to explain [at 30] how blind marking operates and why it is used. She says that blind marking is a "means of marking a de-identified assessment or examination paper to obtain a second opinion". We do not know why or with what authority Ms Beach, the University solicitor, gives this evidence, but the description accords with the experience of the Tribunal in such matters. A letter from the Head of the Social Work Department, Ms Gaha, to Ms Simundic says "[your] assessment was marked twice . . . a number of assessments within a group are blind marked by a second marker to double check the marker's standard . . . [the blind marker's comments] are attached. Those attached comments refer throughout merely to "the author" of the paper being marked. 33 Further in her affidavit Ms Beach [at 33] "asserts that the practice of blind marking is not discriminatory". This is, as Ms Beach says, mere assertion. In her actual written submissions filed after the hearing, Ms Beach does not address the issue of blind marking. 34 Ms Simundic's allegation is that she could receive the benefit of blind marking only if her written expression was as fluent as a person from an English-speaking background. Her claim is that the marking was no longer 'blind', and she could be identified, as soon as it was apparent from her written expression that English was not her first language. 35 The benefit of blind marking, to which Ms Simundic says she had access on condition that she could express herself as well as a person from an English-speaking background, is unbiased assessment. Concealing the identity of the student - through blind marking - is a means to that end. For a student to have their identity concealed from the assessor is not a benefit in itself; the benefit only accrues to the student if and when the assessing is unbiased. 36 Ms Simundic is probably correct to say that the efficacy of blind marking as a means of concealing a student's identity is dependent to a degree on the student's ability to not identify themselves through their manner of written expression. Depending on the size of the respective number of students of English and non-English speaking backgrounds in the pool of students who are being marked, an assessor may well be able to identify a student from their written expression. Ms Simundic, for example, says that in her situation she was one of only two social work students from a non-English speaking background. That is a matter the respondent may want to consider in its future management of blind marking. 37 Ms Simundic has identified the risk of being identified in the blind marking process, and has asserted that it in fact happened to her. There is no evidence in this case that it did. There is real doubt as to who the blind marker was and whether the correct paper was marked. Even if we were able to say who the blind marker was, there is no evidence that they did in fact know Ms Simundic's identity. The report of the person whom the respondent says was the blind marker, Alex Beveridge - disputed by Ms Simundic - is at annexure 6 of Ms Beach's affidavit. It betrays no knowledge of the identity of the student whose paper was being marked, and makes no reference, even by implication, to the written expression of the paper being marked. 38 Even if it could be established that Ms Simundic had been identified by the assessor, there is no evidence that she did not then receive the benefit of an unbiased assessment of her paper. In those circumstances there is no established breach of the Act. Field placement 39 Ms Simundic has a large number of grievances concerning things she says her field placement supervisors said and did. Only the allegation relating to her English language ability as a characteristic of race is within this Tribunal's jurisdiction. 40 This allegation of discriminatory conduct concerns things said by Ms Simundic's field placement supervisors during her placement at Gosford Hospital in 2000. These supervisors were, at the relevant time, employees of either Gosford Hospital or the Area Health Service; it does not matter which, as the point is that they were not employed by or contracted to the respondent. Thus the allegation is not made against the respondent or any of its employees or contractors. Ms Simundic had understandably made and pursued the complaint on the basis that those supervising her placement for purposes of her studies, and reporting to the respondent on that placement, were in an employment relation ship with the respondent. 41 That the field placement supervisors were not employed by or contracted to the respondent was first stated by the respondent only in Ms Beach's affidavit filed after Tribunal's decision to dismiss the respondent's s111 application. The point had not been taken by the respondent in its s111 application. Ms Simundic cross-examined of Ms Beach who, unusually, as the University's solicitor gave evidence in her client's case. The cross-examination allowed Ms Beach to elaborate on the relationship between the field placement supervisors and the respondent - the concept of "conjoint appointments". It was the evidence of Ms Atkins, one of the field placement supervisors, that satisfied us that she was not at the relevant time an employee or contractor of the respondent. 42 For these reasons we find that complaint of discrimination on the ground of race is not substantiated. Joinder 43 The respondent could be liable for unlawful discriminatory conduct of the field placement supervisors only as an aider and abettor under s52 of the AD Act. But that issue cannot arise unless and until it is established that the conduct of the field placement supervisors was unlawful discrimination. We do not have before us any complaint against the field placement supervisors as individuals, or against their employer. No such complaint was referred to us by the President of the Anti-Discrimination Board. We therefore have no jurisdiction to make findings about the lawfulness of the conduct of the field placement supervisors. 44 While the Tribunal has the power to join a person as a respondent to the inquiry if it is of the opinion that that person ought be joined (s98 AD Act), in the circumstances we did not exercise that power. The extent of the allegation regarding English language ability as a characteristic of race, in relation to the field placement, was minimal. It turned on comments made in the end of placement report. The report commented adversely on Ms Simundic's communication skills generally. Specifically, it identified her "understanding of English" as an issue for discussion. Ms Atkin's evidence was that her concern had not been the fact of Ms Simundic's English language comprehension, but Ms Simundic's failure to say when she did not understand so that the point could be made clearer for her. Similarly, the report identified Ms Simundic's failure to acknowledge that she did not understand slang, rather than the fact of her not understanding slang, as a matter to be addressed. The evidence therefore indicated that to us that to the extent that Ms Simundic's English language comprehension was an issue in her field placement, it was one that was being raised in circumstances that would benefit her, rather than cause her detriment. Disability 45 Ms Simundic says she was discriminated against on the ground of disability in two ways. Presumed disability 46 In August 2000 Ms Simundic wrote a memo, annexed to her affidavit, in which she complained that "Ms Gaha . . . made defamatory statement about me last year - none of them the truth - and I am labelled as 'clinically disturb student' in the eyes of many staff who work in the Chancellery". Ms Simundic attached to her affidavit of 29 August 2003 a copy of an email sent by Ms Gaha to the Vice Chancellor, Professor Holmes, on 26 August 1999, and of his reply. Ms Simundic's complaint is that Ms Gaha "labelled" her to the Vice Chancellor as "clinically disturbed", and that the Vice Chancellor conveyed to a number of people in the University this concern that Ms Simundic was a threat to the safety of students and staff. 47 In her email Ms Gaha had written that she suspected that Ms Simundic had earlier in the year been the author of a threatening letter, that a colleague had said that staff needed to be aware of their safety in Ms Simundic's presence, that Ms Simundic had been making "defamatory" statements, that she was concerned that Ms Simundic "could cause harm to a fellow student or staff member", and that she thought "that this student is clinically disturbed". She sought Professor Holmes's advice. 48 In his reply, which he copied to three officers of the University, Professor Holmes took account of the "background" Ms Gaha described, and said that "immediate and appropriate action is warranted". He advised that Ms Simundic should be warned that "intimidatory and /or defamatory behaviour " will not be tolerated, that she should be warned of possible consequences, and that she should be referred to counselling. 49 Ms Simundic makes many allegations the manner in which Ms Gaha treated her. However only the allegation concerning 'disability' is within this Tribunal's jurisdiction. Other allegations relate more generally to Ms Gaha's professionalism and demeanour in her dealings with Ms Simundic. Ms Simundic has not said that she believes Ms Gaha's treatment of her more generally was on the ground of the imputed disability, and it is not possible to infer from her many written documents that that has been her belief. 50 The respondent did not call Ms Gaha to give evidence. Three things are, however, clear from the terms of the email sent by Ms Gaha. The first is that when she referred to 'clinical disturbance' Ms Gaha was referring to mental illness. Ms Simundic says that she was not mentally ill. There is no evidence that she was mentally ill. As Ms Gaha says in her email, she 'thought' that Ms Simundic was clinically disturbed. For purposes of the AD Act a disability is a disability a person is thought to have, whether or not they in fact have it (s49A(b) AD Act). 51 The second thing clear from the terms of the email sent by Ms Gaha is that she viewed Ms Simundic as posing a physical threat to staff and students: she says she was unsure how to ensure the safety of herself and staff, and that she feared Ms Simundic's capacity to cause harm. The only grounds she gives for these fears are her suspicion that it was Ms Simundic who had sent a threatening letter, and the opinion of another person, Pam Niland, that Ms Simundic was threat to staff safety. 52 The third thing clear from the terms of the email sent by Ms Gaha is that she attributed the danger that she believed Ms Simundic posed, at least to some extent, to Ms Simundic's being clinically disturbed, as Ms Gaha thought she was. In terms of the AD Act, Ms Gaha attributed to Ms Simundic, as a person she thought had a mental illness, the characteristic of posing a threat to the physical safety of others. 53 In these circumstances Ms Gaha attributed to Ms Simundic a characteristic that in our view is commonly attributed to people with a mental illness - that of posing a risk of physical violence. 54 Professor Holmes was called by Ms Simundic to be cross-examined. He said that he felt it his duty to take seriously, at face value, concerns expressed by a senior member of the University that there could be harm to a student or members of staff. He said he gave the advice that he did, and sent the email to the people he did, on the basis of the concern expressed as to the risk of harm, and not on the basis of the grounds on which Ms Gaha had formed a view as to the existence of the risk. He took her concerns at face value and responded to them. 55 To know if the University discriminated against Ms Simundic we must ask whether Ms Simundic was treated less favourably than a person whom the University did not think had a mental illness was or would have been treated in the same circumstances. 56 For purposes of making this comparison, the circumstances are that of a Head of School deciding how to deal with a student whom she believed posed a threat to safety based on suspicions from earlier conduct and the opinion of a colleague. If Ms Simundic's perceived disability, and consequent attributed characteristics, are removed from the circumstances for purposes of the comparison, it seems likely that Ms Gaha would have acted in the same way. We are given no reason to think that Ms Gaha would have acted differently, that is that she would not have alerted the Vice Chancellor to her fears, had the fears been based only on suspicions from earlier conduct and the opinion of a colleague, and not as well on a belief that Ms Simundic had a mental illness. 57 We are of the view that a person not thought to have a mental illness would not have been treated differently in the same circumstances. If Ms Gaha was deciding how to deal with a student whom she believed posed a threat to safety based on suspicions from earlier conduct and the opinion of a colleague, she would have acted as she did. 58 Similarly, for purposes of making a comparison, the circumstances are that of a Vice Chancellor responding to a report from a Head of School that a student was believed to pose a threat to safety. If Ms Simundic's perceived disability, and consequent attributed characteristics, are removed from the circumstances for purposes of the comparison, it seems likely that Professor Holmes would have acted in the same way. For the reasons he gave in his evidence, Professor Holmes would have responded as he did, to the people that he did. A person not thought to have a mental illness would not have been treated differently in the same circumstances. If Professor Holmes was responding to a report about a student whom it was believed, on the basis only of suspicions from earlier conduct and the opinion of a colleague, to pose a threat to safety, he would have acted as he did. Stress disorder 59 The second way in which Ms Simundic says that she was discriminated against on the ground of disability is that, although she did not have a mental illness, she was suffering a psychological disability - stress disorder - that the respondent failed to acknowledge or make proper allowance for in its dealings with her. 60 Her complaint is that she was not treated in a way that she says she should have been treated because of her disability. Rather than not being given access to a benefit on the ground of her disability, Ms Simundic says that her disability obliged the respondent to extend to her a benefit but they did not. 61 The respondent says that it did not know of any psychological injury suffered by Ms Simundic at the time she says that it should have taken account of it. The evidence on this is equivocal. Certainly Ms Simundic had been diagnosed with post-traumatic stress disorder some years before her enrolment at the University, and medical reports to that effect were tendered. Ms Simundic appears to have not declared that condition when enrolling. 62 The counsellor to whom Ms Simundic was referred by Professor English, in August 1999, Nanette Bryant, did not formally diagnose Ms Simundic, and was not professionally qualified to do so. In her evidence to the Tribunal Ms Bryant described her role as one of helping Ms Simundic overcome the "negative effects" of her dealings with the University, and of managing her feelings of anger and distress. 63 We do not need to decide whether the University knew of any psychological injury suffered by Ms Simundic, as even if it was on notice as to such an injury, Ms Simundic is unable to establish discriminatory conduct in these circumstances. 64 It may be that in some circumstances a failure to take steps to extend certain facilities or considerations to a student with a disability in the area of education is unlawful discriminatory conduct. Such circumstances may be where a student, in order to receive only the usual benefits of the educational program, requires some positive steps to be taken because of their disability. In our view those circumstances are not present in this matter. The circumstances of Ms Simundic's dealings with the respondent do not support a claim that the respondent was obliged to treat her more favourably than it treated other students who did not suffer the psychological harm she did. 65 For these reasons we find that complaint of discrimination on the ground of disability is not substantiated. Victimisation 66 In dismissing the respondent's s111 application we saw in the written material Ms Simundic had filed sufficient indication of a victimisation complaint to allow the matter to proceed to an inquiry. Principally, at that stage, we could see that the respondent was aware, at a time before it acted towards Ms Simundic in a way that could be characterised as a detriment, of the fact that Ms Simundic had made allegations of discriminatory conduct. 67 In the inquiry we heard no evidence that established any causal nexus between the fact that Ms Simundic had made allegations of discriminatory conduct and any subsequent conduct by the respondent. We cannot reasonably draw any such inference from the written material in evidence. Accordingly, the complaint of victimisation is not substantiated. Orders 1. Pursuant to s113(1)(a) of the Anti-Discrimination Act , the complaints are dismissed. Revised 27 October 2004: to correct Hearing Dates and Represtentation details on Cover Sheet