Lotfizadeh v University of Western Sydney [2016] NSWCATAD 205 | Case summary

NCAT Administrative and Equal Opportunity|2016-07-05|Before: Schmidt J

Background to the complaint

On 29 November 2013 Mr Lotfizadeh gave a presentation to the CoC committee comprising his supervisor, Professor Ussher, his co-supervisor, Dr Mahns, Professor Wilkes and Ms Jorm, Director, Centre for Health Research. It was at this meeting that Mr Lotfizadeh alleges that Professor Wilkes made statements to him that were discriminatory. He said that Professor Wilkes "raised her voice" and "said she doesn't care about my disability and leave of absence on the medical ground" and (said) I "still should have completed my Confirmation of Candidature (CoC) in that time".
Professor Wilkes told Ms McLean, the University's Litigation and Disputes lawyer, that she did not recall any discussion about Mr Lotfizadeh's disability during that meeting or at a later meeting in February 2014. Ms McLean also spoke to Dr David Mahns who was present at the meeting and he told her that he did not recall Mr Lotfizadeh's disability being discussed. Finally Ms McLean spoke to Professor Ussher, Mr Lotfizadeh's PhD supervisor, who was also present at both meeting. She said words to the effect of: "I absolutely guarantee that she [Professor Wilkes ] did not say to Allan, 'I don't care about your disability or your leave of absence and you should have completed your CoC in that time.' The word 'disability' was never raised in the meeting. I have a very good memory of what was said in the meetings and that was absolutely not said."
It was not until 4 months later on 7 April 2014, that Mr Lotfizadeh complained to the University's Complaint Unit about this incident. By that time he had been given an extension of time to 24 February 2014 to present his CoC again. Following a show cause process, the Research Studies Committee told Mr Lotfizadeh that his candidature was terminated as of June 2014.
After receiving the complaint about Professor Wilkes' conduct in the meeting, the Complaint Unit advised Mr Lotfizadeh to raise the issues with his supervisor, Professor Ussher, in the first instance. That course was required under the Supervision of Research Candidates and Doctorate Policy. If the matter remained unresolved Mr Lotfizadeh was advised that he could pursue his concerns with the Complaints Unit. Mr Lotfizadeh did not take the matter up with Professor Ussher. In those circumstances the University did not tell Professor Wilkes about the complaint or take any further action. Mr Lotfizadeh had lodged a complaint with the Anti-Discrimination Board on 25 February 2015.

Consideration of the complaint

I understand Mr Lotfizadeh to be alleging "direct" discrimination in relation to the comments attributed to Professor Wilkes at the meeting and the University's alleged failure to deal with his complaint.
A Tribunal hearing this matter would need to make a finding of fact as to whether the words attributed to Professor Wilkes were actually said. Mr Lotfizadeh has not articulated those words in the first person but alleges that Professor Wilkes 'raised her voice' and 'said she doesn't care about my disability and leave of absence on the medical ground" and (said) I "still should have completed my Confirmation of Candidature (CoC) in that time". Although Professor Wilkes denies making those comments and her evidence is corroborated by others, we have accepted Mr Lotfizadeh's evidence 'at its highest' for the purpose of these proceedings.
Mr Lotfizadeh refers to this conduct as "bullying". That term is not used in the Anti-Discrimination Act, nor is harassment on the ground of disability a separate unlawful act. In order to substantiate this part of the complaint Mr Lotfizadeh would have to establish that the conduct is a "detriment" and comes within the definition of "direct" discrimination in s 49B(1)(a).
The question of whether harassing behaviour can amount to unlawful discrimination was first addressed in New South Wales by Mathews DCJ in O'Callaghan v Loder [1983] 3 NSWLR 89. In that case which was decided before sexual harassment was a separate unlawful act, her Honour found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment" or as a "term or condition" of employment. Such conduct constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman. If persistent enough, it may create a hostile or demeaning environment.
On the basis of the reasoning in O'Callaghan v Loder and other leading decisions such as Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17, an employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment permeated by sexual harassment. The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment, which the female employee is forced to endure. These principles apply equally to harassment on other grounds including disability.
Even if Professor Wilkes said she did not care about Mr Lotfizadeh's disabilities in the context of giving him any more time to complete his CoC, this is not a case where it can be said that the conduct was so persistent or serious enough to create a hostile or demeaning environment. While Mr Lotfizadeh may have felt aggrieved, the test is an objective one. One or two comments of that kind in a meeting, even if said with a raised voice, are unlikely to reach the threshold of unlawful harassment on the ground of disability as described in a different context by Mathews DCJ in O'Callaghan v Loder.
The Applicant complained to the University's Complaints Unit. He said he followed up when told that he should raise the issues with Professor Ussher. He did follow up with the Complaints Unit, but not with Professor Ussher.
The University did not treat Mr Lotfizadeh any differently from the way they treated or would have treated a person without his disability. Asking him to take the matter up with Professor Ussher was consistent with the University's policy. No inference can be drawn that the University asked Mr Lotfizadeh to do so because of his physical disabilities. The University's policy applies to everyone. The complaint that the University discriminated against Mr Lotfizadeh on the ground of his disability by not dealing with bullies in a constructive and supportive manner is highly unlikely to be substantiated as a breach of the Anti-Discrimination Act. Leave for that part of the complaint to proceed is refused.

Insufficient time to complete CoC

The Confirmation of Candidature (CoC) is a compulsory requirement for all research higher degree candidates and must be completed within 12 months for part-time candidates. The candidate must present information on the progress made to date as well as plans for the future.
The brief history of Mr Lotfizadeh's candidature is that he was offered a place in the PhD course as a part-time research candidate in the School of Medicine in March 2011. He deferred the commencement of his studies and began studying part-time on 1 August 2011 for the second semester. He was on approved leave for medical reasons in 2012 and the first half of 2013. In all he was absent for 22 months until the middle of the second semester in 2013.
On 30 May 2012 while on leave Mr Lotfizadeh completed a Higher Degree Research Annual Progress Report. The Report is required to demonstrate satisfactory progress. It includes comments from supervisors. In that report Professor Ussher commented that Mr Lotfizadeh needed to complete his CoC within the first semester of re-enrolling. She said that was the case because Mr Lotfizadeh had "now completed one semester full-time and one semester part time without making substantial progress on his CofC proposal". Professor Ussher also said that she had given Mr Lotfizadeh feedback on his written work and had expressed her concern that he was struggling with many of the academic concepts that underpin the research, as well as with his expression of English.
On 20 March 2013 Mr Lotfizadeh applied for a second period of leave. Professor Ussher and Ms Koh met with him a few days later to discuss his application. At that meeting Mr Lotfizadeh agreed to present his CoC within six months of re-enrolling. Ms Koh recorded in an email of 28 March 2013 that Professor Ussher had 'significant concerns' about Mr Lotfizadeh's ability to be able to complete his CoC given previously identified issues with written work.
In a second email dated 28 March 2013 Professor Ussher approved Mr Lotfizadeh's request to take a leave of absence from the autumn 2013 session. She also recorded her serious concerns about Mr Lotfizadeh's ability to complete a PhD based on his lack of academic training, demonstrated ability and language abilities.
On 18 July 2013 Mr Lotfizadeh enrolled online in the second half session of 2013 although he had a medical certificate saying he was unfit to study until 19 September 2013.
The applicant's co-supervisor, Dr Mahns, sent Mr Lotfizadeh an email on 28 August 2013 requesting that he finalise his CoC for presentation by 31 October 2013. The applicant said he should have been given additional time to complete his CoC because he had only been studying again for just over a month when he was required to present the CoC. He says he was under a lot of stress and still had a lot of pain in his leg when he was required to do the presentation.
By email dated 4 September 2013 Dr Mahns reiterated Dr Ussher's concerns about his rate of progress and apparent difficulty in defining a research project. The email urged Mr Lotfizadeh to seriously consider Professor Ussher's advice to withdraw from the PhD program. This email also stated that the School of Medicine's Research and Higher Degree Committee (SMR Committee) had resolved that completion of the CoC by 29 November 2013 was a 'compulsory event' and that failure to attend may lead to termination of his candidature.
Mr Lotfizadeh's says that the CoC presentation in November 2013 should not have counted as his presentation. Taking into account his periods of leave, he says the 12 months did not expire until March 2014. Even though he was given an extension to February 2014, that was still a month before the 12 month period.

Consideration of complaint about CoC

I understand Mr Lotfizadeh be alleging both direct and indirect discrimination in relation to refusal of the University to give him another opportunity to present the CoC and the termination of his candidature.
There are two components of direct discrimination. The first is the "differential treatment" test. The treatment afforded to Mr Lotfizadeh must be compared with the treatment that would have been afforded to a person who does not have his disability in the same or similar circumstances. When making the comparison it must be assumed that the person without a disability had the same difficulties as the applicant in defining a research project, developing that project and outlining a project design: Purvis v New South Wales (2003) 217 CLR 92 at 160-161. The Tribunal would have to predict how the University would have treated a hypothetical person in a comparable situation.
The second element of direct discrimination is causation. For Mr Lotfizadeh's complaint to be substantiated at least one of the reasons for the University's decision not to give him a further opportunity to present the CoC must have been his 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: Anti-Discrimination Act, s 4A and s 48B(1) and (2).
There is no evidence from which an inference can be drawn that the University's failure to give the Applicant another opportunity to present the CoC was on the ground of his disability. The University had accommodated Mr Lotfizadeh's disability in many ways including by giving him lengthy periods of leave. He makes no complaint about the lack of accommodation afforded to him. The reason for terminating his candidature and for declining to give him any further opportunities is clearly documented throughout the material. Mr Lotfizadeh had been enrolled for a considerable period of time and his supervisor was concerned that he was struggling with many of the academic concepts that underpin the research. He failed the CoC on two occasions. For those reasons he is unlikely to able to substantiate this part of the complaint.
A complaint of indirect discrimination as defined in s 49B(1)(b) has four elements. On the basis of Mr Lotfizadeh's written and oral submissions, I understand his claim to be that: 1. the University required part-time students to successfully submit a CoC within 12 months of commencing their studies; 2. Mr Lotfizadeh could not comply with that requirement; 3. a substantially higher proportion of students without the disability that he has, compared with students with his disability can comply with the requirement; and 4. the requirement is not reasonable in all the circumstances.
Even if Mr Lotfizadeh is able to establish the first three elements of indirect discrimination, a Tribunal hearing this case is to be satisfied that the requirement, is reasonable in all the circumstances. This is not a case where Mr Lotfizadeh showed promise or where it was on the cards that, given a little more time, he would be able to successfully complete the CoC. Serious concerns had been expressed from an early stage about his ability to complete the program. Those concerns were unrelated to his disability.

Order The Applicant's application for leave for the complaint of disability discrimination to proceed is dismissed. 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: 02 September 2016

Overview

Mr Lotfizadeh complains that Professor Wilkes bullied him in a meeting and that the University of Western Sydney did nothing when he complained. He claims that the alleged bullying and the University's lack of response were because of his disability which he describes as chronic leg pain and hearing loss. He also complains that the University did not give him enough time to complete his Confirmation of Candidature (CoC) before terminating his enrolment.
The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance. The question in these proceedings is whether it is fair and just for Mr Lotfizadeh's complaints to go ahead: Anti-Discrimination Act 1977 (NSW), s 96(1). The onus is on him to satisfy the Tribunal that the complaints should proceed to a hearing.
It is unlawful for an educational authority, such at the University, to "discriminate" against a person on the ground of disability by expelling him or her or subjecting him or her to any other detriment: Anti-Discrimination Act 1977, s 49L. Mr Lotfizadeh is complaining about being expelled before he was given more time to comply with the University's requirements. Mr Lotfizadeh also says that the University has subjected him to a detriment in the manner in which Professor Wilkes spoke to him and because the University did not deal with his bullying complaint in a constructive and supportive manner.
The Supreme Court set out the principles to be applied when determining whether to grant leave for declined complaints to proceed in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J:◦ (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.
Mr Lotfizadeh is aggrieved by what he sees as inappropriate behaviour by Professor Wilkes. But bullying and harassment on the ground of disability are not terms used in the Anti-Discrimination Act. To substantiate the complaints, he would have to prove that the University has discriminated against him. The words Professor Wilkes is alleged to have said are unlikely to meet the threshold of subjecting Mr Lotfizadeh to a detriment on the ground of disability. Nor would Mr Lotfizadeh be able to prove that the University discriminated against him on the ground of disability by failing to respond to the complaint. They did respond but Mr Lotfizadeh chose not to pursue the course they suggested as a first step. Finally, the University gave Mr Lotfizadeh ample time to complete his CoC even taking into account his disabilities. If this matter went to a hearing it would be highly unlikely that Mr Lotfizadeh would be able to establish a breach of the Anti-Discrimination Act.
For those reasons, which I will explain further, I have decided to refuse leave for each of Mr Lotfizadeh's complaints to go to a hearing.

Lotfizadeh v University of Western Sydney

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