Heaton v Navitas Professional Institute Pty Ltd t/as Australian College of Applied Psychology

The law governing the grant of leave

1. A person may make a complaint to the President on their own behalf alleging that a person or persons have contravened a provision of the Act: (s 87A(1)(a)(i) of the Act). Where the President decides to accept a complaint under s 89B, the President must investigate the complaint (s 90 of the Act).
2. Section 92 provides that the President may decline a complaint during the investigation: (1) If at any stage of the President's investigation of a complaint - (a) the President is satisfied that - (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
3. As noted above, where the President has declined a complaint under s 92 and has a received a written request from the complainant to refer the matter to the Tribunal, the matter can only proceed before the Tribunal if leave is granted under s 96 of the Act.
4. Section 96 of the Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the complainant to establish that leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]-[58], [60]).

The complaints

1. Ms Heaton has made complaints that she was discriminated against in education on the ground of disability by the College and that she was victimised by the College and Ms Paton.

Disability discrimination

1. Relevantly, s 49L(2) makes it unlawful for an educational authority to discriminate against a student on the ground of disability: (a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or … (c) by subjecting him or her to any other detriment.
2. Section 49B of the Act sets out what constitutes discrimination on the ground of disability: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, 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), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. …
3. Where an act is done for two or more reasons, and one consists of unlawful discrimination, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
4. There is no dispute that Ms Heaton has a disability as defined in s 4 of the Act. She must establish that the conduct about which she complains falls within s 49L of the Act, in particular, that the College denied or limited her access to a benefit provided by the College (s 49L(2)(a)), and/or subjected her to a detriment (s 49l(2)(c)). A "detriment" means something that assessed objectively amounts to loss, damage or injury that is real and not trivial (Sivananthan v Commissioner of Police [2001] NSWADT 44 at [40]-[41]; Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]; Bonella v Wollongong City Council [2001] NSWADT 194 at [50].)

Victimisation

1. In relation to victimisation, s 50 of the Act provides: (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
2. For Ms Heaton's complaints of victimisation to be upheld, she must show that the College and/or Ms Paton subjected her to some detriment because she had done one of the things listed in s 50(1)(a) to (d).

The evidence

1. Ms Heaton states that when she went to the class on 15 February 2019 the teacher, Ms Paton, was aware of her disability and needs as these had been conveyed to her by the College's Accessibility Adviser. She states that, despite this, Ms Paton kept covering her mouth so she could not read her speech. When she told Ms Paton that she could not hear her, Ms Paton told her to move. Ms Heaton states that she must sit in the centre front of the class to speech read and to be face on to anything written on the whiteboard or PowerPoint presentations as she is dyslexic.
2. Ms Heaton states that during the class on 15 February Ms Paton kept changing the modulation of her voice and kept putting her hand to her mouth while talking. Ms Paton turned her back to clean the white board and started writing something while talking which meant Ms Heaton did not know what she said. Ms Heaton states that when she tried to gain Ms Paton's attention, she ignored her. After the class Ms Heaton made a complaint about Ms Paton's conduct to the student support person at the College.
3. Ms Heaton attended class again the following week on 22 February 2019 and sat in the centre front of the class. She states that as soon as she sat down Ms Paton started verbally abusing her in front of the whole class and was very aggressive. Shortly after, Ms Heaton left the class.
4. Ms Heaton claims that on two occasions College staff tried to bully her into having a meeting with Ms Paton but she refused as she did not trust Ms Paton and did not feel safe. She believes she was discriminated against by the College and victimised by the College and Ms Paton.
5. The College and Ms Paton deny that they have either discriminated against Ms Heaton or victimised her. The College states that prior to the commencement of classes Ms Heaton advised the College's Accessibility Adviser that she is deaf and dyslexic and provided supporting documentation from her doctor. She was provided with a note taker and front row centre seating and the College notes that all its classrooms are well lit. The College states that it is the student's responsibility to address and highlight adjustment issues in the classroom with their teacher.
6. Ms Paton states that she was advised that Ms Heaton has a hearing impairment but was not informed she is profoundly deaf or is dyslexic. She denies covering her mouth or speaking with her back to Ms Heaton during the class on 15 February 2019. She states she did draw a diagram on the whiteboard but then turned to the class to explain the diagram. She said that, as her understanding was that Ms Heaton had some hearing, she asked her if she would like to move closer to her so she could hear better. Ms Paton was unaware until she was advised of Ms Heaton's complaint that Ms Heaton was unhappy at the first class as Ms Heaton did not talk to her about any other adjustments.
7. Ms Paton also disputes Ms Heaton's version of what happened on 22 February 2019. She states that she spoke to Ms Heaton when she arrived at the class to check that she could hear her and asked if she wished to move closer. Ms Paton states that Ms Heaton reacted aggressively and yelled that she could not see the PowerPoint if she moved and said she is dyslexic. When Ms Paton said she was not aware that Ms Heaton was dyslexic, Ms Heaton again reacted aggressively. Ms Paton states that she said to Ms Heaton that they needed to sort out what could be done in class for her. Shortly after the class commenced, Ms Heaton left the room and did not attend any further classes.
8. Ms Heaton lodged a formal complaint with the College on 1 March 2019. In accordance with the College's complaints policy, a meeting was held with Ms Heaton in an attempt to discuss and resolve the matter. It was recommended that she meet with Ms Paton in a mediation but Ms Heaton refused.
9. The College reports that Ms Paton had taught with it for nine years and had received no complaints. The College described Ms Paton as "an excellent, professional and reliable staff member" and stated that there is no evidence to suggest that she would intentionally discriminate against or victimize a student.
10. The College states that it has tried to resolve the issue with Ms Heaton but she has refused to engage with its staff. As Ms Heaton did not attend any further classes after 22 February 2019, in about April 2019 the College recommended she withdraw from the course and encouraged her to submit an application for special circumstances to enable a refund of fees and removal of her grade from her academic record. Ms Heaton refused to complete the form as she believed the College was victimising her by forcing her to withdraw from the class and fill out the form even though there was no guarantee she would be reimbursed the fees she had paid.
11. The College also offered Ms Heaton counselling with one of its counsellors. None of the available times suggested by the counsellor were suitable to Ms Heaton.
12. The College has provided Ms Heaton with a written apology for any distress caused to her.

Other complaints made

1. Ms Heaton has also complained to the following persons and bodies about her allegations of discrimination and victimisation: 1. a complaint to the College - details are set out above; 2. a complaint to the Commonwealth Minister for Education - Ms Heaton said she received no response; 3. a complaint to the Australian Human Rights Commission (AHRC) in April 2019 - that complaint was terminated on the basis that it appeared to have no reasonable prospect of being settled by negotiation - Ms Heaton attended conciliation organised by the AHRC with College staff but told me she did not feel safe in doing so and was bullied by the staff; 4. a complaint to the Tertiary Education Quality and Standards Agency (TEQSA) in May 2019 - Ms Heaton advised nothing came of this complaint.

Claim of disability discrimination

1. Ms Heaton claims that she was discriminated against by the College on the grounds of her disability. Unlawful discrimination is usually referred to as direct discrimination or indirect discrimination.
2. To establish a complaint of direct disability discrimination under section 49B(1)(a) Ms Heaton would need to establish: 1. that the College treated her less favourably, in the same or similar circumstances, than it treated, or would have treated, a person without her disability (differential treatment); and 2. that one of the reasons for that less favourable treatment was her disability (causation).
3. To establish indirect disability discrimination, Ms Heaton would have to prove the matters in s 49B(1)(b). In summary, those matters are: 1. that the College required her to comply with a requirement or condition; 2. that a substantially higher proportion of students without her disability can comply with that requirement or condition; 3. that Ms Heaton did not, or was not able to comply with the requirement or condition; and 4. the requirement or condition was not reasonable in all the circumstances.
4. The difficulty Ms Heaton faces is that she has not specified with any detail how she was discriminated against by the College on the grounds of her disability. She has also not provided any supporting information. She informed the College of her disability and steps were taken in accordance with the doctor's report she provided to ensure she could participate in the course - she sat front centre, the classroom was well lit so she could see the whiteboard and any PowerPoint presentations and she was provided with a note taker. She states that on 15 February 2019 the teacher, Ms Paton, covered her mouth when speaking (which Ms Paton denies) and spoke with her back turned when writing on the whiteboard. There does seem to have been some miscommunication between the Accessibility Adviser and Ms Paton about the extent and nature of Ms Heaton's disability, but there is no indication this involved discriminatory conduct towards Ms Heaton. Ms Heaton did not raise any adjustment issues with Ms Paton during or following the 15 February class. There is nothing to suggest that she asked for any adjustments at the beginning of the class on 22 February 2019. The College states that it is the student's responsibility to address and highlight adjustment issues in the classroom with their teacher but that did not occur.
5. Ms Heaton has also not provided either a real or hypothetical comparator student without her disability who would have been treated more favourably in the circumstances.
6. If the matter were to proceed to hearing, the likelihood of Ms Heaton being able to establish that she had been subjected to less favourable treatment than a comparator student would be remote. She has also not provided any information which would tend to substantiate a claim of indirect discrimination.

Claims of victimisation

1. Ms Heaton claims she was victimised by both the College and Ms Paton. As noted above, Ms Heaton must show that the College and/or Ms Paton subjected her to some detriment because she had done one of the things listed in s 50(1)(a) to (d). While Ms Heaton has not articulated which provision she believes has been contravened, it seems most likely that it is s 50(1)(c) as she has alleged that the College has committed an act which would amount to a contravention of the Act. Similar claims arise with respect to Ms Paton.
2. Again, the difficulty Ms Heaton faces is that she has provided very little to substantiate her claims. Her issues in relation to the College appear to centre on her claims that staff from the College tried to bully her into meeting with Ms Paton and that the College tried to force her to withdraw from the course.
3. In relation to the two meetings, the first instance was on 28 February 2019 when a meeting was held been Ms Heaton and College administrative staff in accordance with procedures set out in the College's Complaint, Grievances and Appeals Policy and Procedure. According to the College it was recommended that Ms Heaton meet with Ms Paton but she declined. There is no evidence that she was bullied or coerced into any such meeting and all indications are that her refusal was accepted.
4. The second meeting was one held on 18 April 2019 in an attempt to resolve Ms Heaton's complaint made to the AHRC. It was at this meeting, which had been facilitated by the AHRC, that Ms Heaton was offered sessions with a counsellor and the opportunity to submit a special circumstances application to withdraw from the course without penalty. She accepted the offer of counselling but all dates later provided to her by the counsellor were not suitable to her. Ms Heaton refused to fill in the form for the special circumstances application. Again, Ms Heaton has provided no evidence that she was bullied or coerced or that the offer of the special circumstances consideration was anything other than an opportunity for Ms Heaton to withdraw from the course without penalty. It was Ms Heaton who refused to negotiate and who found any compromises put forward by the College unsatisfactory. There is no evidence she tried to engage in any way to resolve her complaint.
5. Ms Heaton stopped going to class on 22 February 2019 and did not participate any further in the course. She had paid a fee for the course and her non-attendance meant that she would fail and this would be on her academic record. It is unclear why she alleges the College forced her to withdraw from the course by offering to consider a special circumstances application from her for a fee refund and removal of any result from her academic record when she in fact ceased attending.
6. In relation to the complaint against Ms Paton, Ms Heaton claims that she was bullied and abused by Ms Paton at the beginning of the class on 22 February 2019. Ms Paton denies doing so and states that she spoke to Ms Heaton to ascertain whether she needed to move to get the most out of the class. Ms Paton states that it was Ms Heaton who reacted aggressively.
7. Ms Heaton has not provided any corroborating evidence of what happened in class on 22 February 2019. She has stated that other students can support her account but has never provided any supporting statements. She told me that the coronavirus meant she could not obtain anything from the other students. The incidents the subject of the complaints occurred in February 2019 which is more than a year before Australia was affected by Covid-19 and lockdowns. It was certainly open to Ms Heaton to contact other students at the time she made her initial complaints in 2019. There was also nothing to prevent her contacting others by phone or email (presuming she had the details of the students she states supported her) even after Covid-19 affected Australia.
8. On the basis of the evidence before me, it is also very difficult to ascertain what detriment Ms Heaton suffered as a result of any alleged victimisation by the College and Ms Paton. The evidence provided by the College is that, following the making of her complaint, it made efforts to achieve a satisfactory outcome with Ms Heaton and was prepared to do so. As noted above, however, Ms Heaton refused to engage and simply stopped attending classes.

Conclusion

1. The President declined the complaint on the basis that Ms Heaton has not provided any information which is sufficient to establish that she has been discriminated against on the grounds of her disability. If leave were granted for the complaint to proceed, the legal burden of proof would be on Ms Heaton to prove her case on the balance of probabilities. As noted above, in my view, Ms Heaton's complaint of disability discrimination would be very unlikely to succeed before the Tribunal. Ms Heaton has also failed to provide information sufficient to establish her claims of victimisation by the College and Ms Paton and for the same reasons it is highly unlikely she would succeed in that matter before the Tribunal.
2. In addition, as stated by the President, the College took steps in accordance with its complaints procedures to remedy or redress the matters complained of against it and Ms Paton but Ms Heaton refused to engage in any meaningful way. It is important to note that before making her complaint to the President, Ms Heaton had made four other complaints and none were found to be substantiated.
3. In these circumstances, I conclude that it is not fair and just for the complaints of disability discrimination and victimisation to proceed because the complaints are highly unlikely to succeed if they go to a hearing.

Order 1. Leave to proceed with the complaints of disability discrimination and victimisation is refused.

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: 23 October 2020