The Applicant, a first-year student of a Bachelor of IT (Cyber Security) during 2020 at the Respondent (the University) was diagnosed early in the year with a long-term medical condition which impacted adversely on his ability to attend and undertake practical work on campus. As a result of the situation, he sought from the University some accommodation or adjustment to course requirements to enable him to continue his studies. He was dissatisfied with the University's responses.
On 3 October 2020, he made a complaint to the Anti-Discrimination Board under the NSW Anti-Discrimination Act 1977 (the Discrimination Act) alleging unlawful discrimination on the ground of disability in the area of education and unlawful victimisation by the University.
The President of the Anti-Discrimination Board decided to refer the Applicant's complaints to the Tribunal for a public hearing under s 93C(b) of the Discrimination Act.
[2]
The alleged conduct
The Applicant filed and served Points of Claim in the Tribunal on 28 June 2020 in which he sets out, in brief terms, that he informed the University of a medical condition, as a disability, on 30 March 2020. As a result, he was assigned an Accessibility Service Practitioner (described as an ASP) under the University's policies to assess his situation and assist him.
As a result of initiating the process for assistance the Applicant received what is termed an Individual Educational Access Plan (IEAP) which included several reasonable adjustments made by the University regarding in class assessments and exams.
The Applicant states in his Points of Claim that for Semester (or Session) 2 of 2020 he was enrolled in the following units, namely, COMP1350, COMP1000 and MATH1007.
During August 2020 the Applicant updated the University as to his condition and requested additional adjustments to the course requirements, in particular in respect of take-home assignments and examinations. There then occurred an exchange of emails between the Applicant and the University in respect of the Applicant's requests concerning COMP1350.
The Applicant claims that on 18 August 2020 he withdrew from MATH1007 after receiving no adjustments to required quizzes that were required to be completed every week in circumstances where he claims University representatives had failed to confirm for him whether adjustments could be made.
The Applicant claims that at the time he did not receive any confirmation of whether requested adjustments would be made to COMP1350 nor any guidance on how the subject would be adjusted according to his disability. The University had made adjustments for other subjects that he was enrolled in such as COMP1000 but he claims there was no confirmation at that time on whether adjustments could be made, for COMP1350.
The Applicant claims that he then during September 2020 provided to the University further medical documentation and requested whether adjustments previously requested could be made for him to enable him to carry out the work required.
As a result, on 16 September 2020 the Applicant made a formal complaint to the University's Student Wellbeing section on the basis that he had not received any confirmation of what he says were the previously requested adjustments. His complaint was acknowledged on 18 September 2020 but he claims that in this response there was no confirmation of whether any of the adjustments he had requested would be considered for COMP1350.
The Applicant states in his Points of Claim that the last date to withdraw without a "Fail" for any course was 28 September 2020 and that under the University's policies a Fail would not be recorded because a student could receive a special consideration grade under the University's policies.
It is then claimed that on 22 September 2020 the Applicant spoke by telephone to Mr McNamara, an occupational therapist in the University's Accessibility Services team. The Applicant claims that the adjustments he had requested were not given, and there was no explanation as to why these were not given, such as to explain why it would cause the University unjustifiable hardship as per s 49L(4) and s 49L(5) of the Discrimination Act.
The Applicant then claims that Mr McNamara did not make further enquiries into his disability, nor contact his medical practitioner for further information but instead disregarded his disability and regarded it as a temporary issue and accordingly did not suggest any adjustments that would allow him to equitably benefit in his studies at the University on the same basis as persons without a disability.
The Applicant claims that Mr McNamara did inform him that for some online assessments he would get some adjustment but of a limited amount in respect of time for quizzes.
As reasonable adjustments could not be made, nor any explanation provided as to why they could not be made, the Applicant claims he withdrew from COMP1350 on the insistence of Mr McNamara following their telephone conversation as the last date to withdraw from the course was a few days away.
In respect of COMP1000 the Applicant claims that on 22 September 2020 following his conversation earlier that day with Mr McNamara he sent an email to Dr Roberts, the course convenor of COMP1000, regarding quizzes he had missed out on in prior weeks and sought clarification on an existing assignment that had been modified to introduce an in-class presentation element. The Applicant also claims that on 27 September 2020 Mr Roberts responded to Mr McNamara's email granting adjustments to enable the Applicant to sit any missed exams later if needed, as an assurance of adjustments being made to the assignment where necessary.
On 28 September 2020 the Applicant responded to Dr Roberts's email informing him that he would potentially miss another 1-2 weeks of tutorials and accompanying in-class exams during the second semester. The Applicant claims that he stated a wide range of adjustments that could be made to upcoming assignments that would not leave him negatively impacted due to his health but claims no reply was ever received from Mr Roberts to this email regarding adjustments.
As pointed out above the Applicant then made a complaint on 3 October 2020 to the Anti-Discrimination Board about the University's conduct described above. The referral to the Tribunal by the President of the Board thus concerned the conduct outlined above.
However, the Points of Claim proceed to set out that on 21 October 2020 the Applicant received a call from Ms Piper-Irons, the University Disability Support Lead (who gave evidence in these proceedings as Ms Piper), due to his complaints to the Anti-Discrimination Board made on 3 October, to try and provide adjustments for his ongoing studies in COMP1000, in addition to taking over as his designated ASP.
The Applicant then claims that during the period 26 October 2020 and into November 2020 there were a range of exchanges between him and various representatives of the University concerning adjustments to be made - some, he claims were refused such as a viva-styled assessment and some, he claims were removed without explanation.
On 18 February 2021 the Applicant completed COMP1000. His experiences in relation to his accommodation requests he claims encountered during Semester 2, 2020 concerning COMP1000 continued (in an unspecified way, through newly enrolled units in Semester 1, 2021).
Finally, the Applicant claims that there was a lack of reasonable adjustments being made during the period of Semester 2, 2020 and into Semester 1, 2021 which exacerbated his diminished wellbeing and overall health and that in order to put him in a position prior to these events occurring throughout Semester 2, 2020 he requested the following relief to be provided by the University:
"1. To be refunded the course fees associated with unit COMP1350 and COMP1300.
2. Removal of the 'withdrawn' grade for the unit COMP1350 and COMP1300 on my official academic transcript."
The University claimed that in respect of the relief so sought it had refunded the course fees associated with unit COMP1350 and had removed the "withdrawn" grade for the unit COMP1350. At the hearing of this matter the Applicant was asked to confirm that that was the case and he did so. As a result, the totality of relief that he was claiming had already been granted to him by the University.
In respect of what the Applicant sought in respect of COMP1300 it was the University's contention that that relief was outside of the complaint that he made to the Anti-Discrimination Board and referral to the Tribunal and pointed out that there was no material before the Tribunal upon which it could make any determination in respect of COMP1300. The Applicant acknowledged and accepted that each of these contentions was correct.
As a result, we ruled that we would not permit the Applicant to advance any claims in respect of COMP1300 as they were outside of the complaint and in respect of which there was no evidence and no particularised or stated case upon which any ruling could be made. In addition, it would be prejudicial to the University to allow the matter to be adjudicated upon in those circumstances.
The Applicant was then asked to identify what purpose the proceedings would serve given that the relief that he was seeking had, in effect, been granted him by the University in respect of unit COMP1350. He indicated that there was still, as far as he was concerned, the question of adjustments that could be made going forward and that any ruling by the Tribunal might provide a baseline as to what reasonable adjustments were because there had yet to be agreed a new plan. The Applicant also pressed his victimisation complaint and identified that that complaint was based on the phone consultation he had with Mr McNamara on 22 September 2020 which he describes at page 4 of his complaint to the Anti-Discrimination Board. In that complaint the Applicant stated that the phone consultation did not achieve the desired effect he was hoping it would have, as the Applicant found himself having to try and defend the special considerations that he felt he needed to study. During this conversation he said he discovered Mr McNamara did not understand his illness, was under the impression that it was purely a stomach issue, and had made no attempts at contacting the Applicant's medical practitioner who had sent in a supportive letter (identified later in the proceedings as the letter of 27 August 2020 from his medical practitioner) indicating that she would be happy to talk to someone from the University regarding his health.
The Applicant did not identify what relief he was in fact seeking in respect of adjustments for the future or in respect of his claims based on victimisation if made good.
[3]
University's Response
The University did not take issue with the fact that the Applicant had a disability for the purposes of the Discrimination Act.
The University further says in general answer to the Applicant's Points of Claim that the Applicant did not identify nor particularise the elements necessary to ground any claim for unlawful discrimination on the grounds of disability against the Respondent and in the absence of such particularisation proceeded on the basis that the complaint was one of indirect discrimination. However, in submissions the University dealt with the Applicant's complaint in respect of either indirect discrimination or direct discrimination under the Discrimination Act. (As to the necessary elements to be established on the grounds of indirect discrimination see, for example, Court v University of Wollongong [2015] NSWCATAD 249 at [30] and [31]).
In respect of the withdrawal from a course the University states, and which is borne out by the evidence of Ms Fang, Team Leader, New Students, that any student who is substantially impacted by a serious or unavoidable disruption during the study period was entitled to apply for "Withdrawal without Academic Penalty" after the relevant date described as the Census Date in accordance with a specific policy of the University, namely its Withdrawal and Discontinuance Policy.
In response to the Applicant's claim that he did not receive any confirmation of whether the requested adjustments would be made to COMP1350 the University denies the allegation. The University on the evidence of one of its representatives Ms Ramakrishana, the unit convenor for COMP1350, which we accept, confirmed in an email to the Applicant, and Mr McNamara, on 16 August 2020 that adjustments could be facilitated for this course and on 14 September 2020. Ms Ramakrishana also approved a request for special consideration which was lodged by the Complainant on or around 10 September 2020.
The University denied the allegation that the telephone conversation between the Applicant and Mr McNamara on 22 September 2020 gave rise to any breach of the Discrimination Act, a matter which is dealt with in substantial detail in the evidence admitted in the proceedings which we will deal with shortly.
In response to the claim by the Applicant set out at paragraph 14 above the University admits that after 22 September Mr McNamara did not make any further enquiries of the Applicant nor contact the Applicant's medical practitioner but otherwise denies the allegations and points to evidence of steps in fact taken to accommodate the Applicant's requests.
In response to the Applicant's concerns about not being given extra time the University says that the Applicant was entitled to a 35% time extension to complete any timed quizzes under his Individual Education Access Plan and that any additional assessments outside of that plan needed to be negotiated with the Unit Convenors in light of the learning objectives that the student was required to demonstrate competency in. The University responds that the Applicant was also offered the option to sit the quizzes at any time during the week and could apply for special consideration if affected by symptoms during the assessment.
The University denies that the Applicant withdrew from COMP1350 on the insistence of Mr McNamara and further says that the Unit Convenor for COMP1350 confirmed that adjustments could be made and that it is standard process for students to be reminded of important dates, particularly in instances where they have indicated that they may have difficulty completing their studies.
The University objected to the claims by the Applicant in respect of events after 3 October, particularly paragraph 26 to 31 of the Applicant's Points of Claim, as they were outside the scope of the complaint to the Anti-Discrimination Board but, without prejudice to its position admitted that there were several email exchanges between the Applicant and the University regarding the possibility of the Applicant's assessments being delivered verbally and says that between 16 November and 30 November Ms Piper-Irons and Mr Roberts continued to consult with the Applicant about appropriate adjustments to assist him in completing the remaining assessments for COMP1000, an offer including an alternative adjustment to what was requested by the Applicant following extensive consideration by the University and correspondence with him. The adjustment that was ultimately granted was considered reasonable when viewed against the learning objectives of the unit and the Applicant's then circumstances. The Applicant received a final mark of 100% for the unit.
The University denies that the exchanges between the Applicant and University representatives during November failed to facilitate or reasonably accommodate the requests of the Applicant and indicated that during the period a number of people from the Disability Support area were on leave.
The University says that in respect of COMP1000 that it permitted the Applicant, at his request, to complete his assessments later than the scheduled date to accommodate his request and that the deferred timing meant that marking was required to take place after the teaching sessions had concluded.
[4]
Evidence
The Applicant relied upon a bundle of 13 documents which constituted his complaint to the Anti-Discrimination Board and supporting materials, the President's Report to the Tribunal, under a cover of an email of 29 April 2021, and a document entitled Evidence in Reply dated 9 September 2021 admitted without objection. We declined to admit into evidence a document sought to be tendered by the Applicant prepared for the purposes of conciliation proceedings as this document was, as confirmed by the parties, prepared for the purposes of seeking to resolve matters by conciliation and was, as a result, privileged.
In response the University tendered and it was accepted into evidence without objection a Statement of Mr Sonny McNamara dated 27 August 2021, a Statement of Ms Kelly Piper of 27 August 2021, a Statement of Associate Professor Cassidy of 26 August 2021 and a Statement of Ms Alicia Fang of 26 August 2021.
No witness was required for cross-examination.
The Applicant in his submissions to the Tribunal relied substantially on the contents of his complaint to the President of the Anti-Discrimination Board and the documents in the bundle of material referred to above.
The Applicant, in addressing his evidence, indicated that the accommodation or adjustment that he sought from the University was a study plan which did not require him to be available at particular times and he further complained, it appears for the first time, that the University had not provided him with material or recordings of classes that would have enabled him to do the quizzes more effectively and therefore was put at a disadvantage. This matter was not addressed in any evidence before us and the University took issue with the assertion.
In answer to a question from us the Applicant indicated that he was aware of the program within the University to obtain Special Consideration where a task or exam could not be completed at the relevant time, a matter documented in the University's policies, but stated he had been told, by persons not identified by him that the "Fit to Sit" Policy meant that he had to advise in advance that he was not fit for the task, a contention denied by the University and not consistent with its policies. In the absence of evidence from the Applicant as to when or by whom he was told to that effect his answer about this qualification which is inconsistent with the policy cannot be accepted.
In answer to the Applicant's claims the University contends, and we accept, that:
1. they must be viewed in the context of the course requirements undertaken by the Applicant and all other students and the rationale for the various forms of assessment as outlined by Associate Professor Cassidy in his evidence;
2. the complaints must also be carefully evaluated by reference to what the medical advice made available to the University by the Applicant was in fact recommending and when that advice was provided by the Applicant;
3. the University had a range of policies and procedures available to assist students with disabilities which were known to and utilised by the Applicant, policies which did not place sole responsibility on the University to constantly monitor adjustments granted to a student, but which encouraged and required students to follow up any adjustment plan put in place if it was not proven to be suitable.
The University indicated in the Tribunal hearing, in response to query from the Tribunal that the provision of reasonable accommodation was often an ongoing process as a student progressed through their course.
The University further contended that the evidence would show that the Applicant was granted a number of adjustments, he did not suffer any detriment at the hands of the University, and was not discriminated against, either directly or indirectly, and was not in fact victimised.
The policies and procedures available to students such as the Applicant as described in the evidence of Ms Piper with the role of Disability Lead, Accessibility Service, Student Wellbeing and Mr McNamara included the Student Disability Support Policy and Procedure, Availability Services, and Accessibility Service Handbook and Special Consideration Policy. There is a team employed by the University which includes disability practitioners, administrative staff and a Disability Support Lead, the role which manages the day-to-day operation of accessibility services and provides support and advice to students registered with Accessibility Services.
Ms Piper describes in some detail the support available to students including the Applicant via the Accessibility Services which includes making reasonable adjustments to a student's study requirements through a formal process resulting in a plan, namely, an "Individual Education Access Plan" or IEAP which is an agreement between the student and the University based on current medical evidence provided by the student and the impact of the medical condition on the student's studies.
Special Consideration may also be utilised by a student who is registered with the Accessibility Services where instances where the student falls ill or experiences another unavoidable disruption that was either not apparent at the time that their IEAP was developed or was not directly related to their disability and therefore not covered by the adjustments provided for in the IEAP.
[5]
Adjustments
On 12 March 2020 the University received a request lodged by the Applicant for Accessibility Services through the University's online portal. The medical evidence attached to the request was a brief letter from the Applicant's treating medical practitioner which indicated that the Applicant's medical conditions "could" affect his ability to attend University and she would be in full support of him taking online courses at home.
As a result of this request the application was processed identifying the relevant courses that the Applicant was enrolled in for units for 2020, namely, COMP1350, COMP1000 and MATH1007 and an assessment consultation was arranged for 30 March 2020.
On 30 March 2020 Mr McNamara conducted an Accessibility Service Intake Assessment Consultation with the Applicant by telephone in accordance with the University's policies. Mr McNamara made a file note of that consultation which was in evidence.
The evidence of Mr McNamara, which we accept, is that the adjustments sought by the Applicant at the time were granted to him and were fully documented in accordance with the University's policies. An IEAP was prepared in accordance with the procedure required. It documented which adjustments were to be made for the Applicant including that he be permitted to do his assessments online together with adjustments in respect of additional time to be provided for examinations and timed in-class assessments with a duration longer than 30 minutes. Other adjustments recommended by Mr McNamara included, for formal examinations, additional time, and for timed assessments extra time for tests longer than 30 minutes which, Mr McNamara said, was agreed to by the Applicant on the basis that he could generally manage short tests up to 30 minutes but his need for extra time increased with the duration of the tests.
The documented assessment that was then recorded within the University's systems and which was provided to the Applicant also indicated that the Applicant was to take the opportunity to email Campus Wellbeing on any further disability support issues that had not been addressed in the plan or that he wishes to address and that all adjustments recommended in the plan are subject to review based on student usage and feedback.
The adjustments so made were current until 1 March 2021.
In our view there can be no complaint upheld that what occurred in respect of the adjustments sought in March 2020 breached the University's obligations under the Discrimination Act. The University's response also went beyond what was recommended by the Applicant's treating doctor.
On 17 July 2020 further adjustments were made to the Applicant's IEAP (without further requests from him) including for additional time for exams and for online tests up to 35% extra time. Once again, the Applicant was invited in the documentation concerning this adjustment to take the opportunity to contact Accessibility Services if there were any errors in the plan, or if he wished to further discuss the reasonable adjustments and support that had been recommended in his plan. Further the Applicant was informed that if at any time during his enrolment he identified a need for his disability support needs to be reconsidered and his plan to be reviewed he was entitled to submit feedback and further supporting documentation to aid in the further assessment of his needs via the relevant access system.
It is clear, and we find, that the Applicant's requests were being accommodated and he was not subjected to any detriment on the grounds of his disability, nor was he denied access or limited access to any benefit provided by the University. The reasonable adjustments he sought had been granted and he was also provided with an opportunity to seek changes as required.
By email of 11 August 2020 addressed to Student Wellbeing the Applicant sought from the University to have assessments for his units based on take home assignments/exams as that gave him the most flexibility and would allow him to focus on his health first without having to plan around class tests and quizzes and attendance. At the same time he advised the University that his medical situation and treatments changed daily.
The University responded immediately and advised the Applicant that he was to call Student Wellbeing to book and appointment with Mr McNamara. On 14 August 2020 Mr McNamara had a telephone consultation with the Applicant to discuss his request. Mr McNamara made a written note of the discussion. Mr McNamara said, and we accept, that the Applicant advised Mr McNamara that he did not have specific dates as to when his medical appointments were to be scheduled or when his new diet regime was going to commence. Mr McNamara told the Applicant in relation to his request about take home assignments and exams in lieu of attending class that the reasonable adjustments principles applied by the University still required students needing to demonstrate that they can meet the learning outcomes or inherent requirements for the unit or course that they had enrolled in. Mr McNamara said words to the effect that the absence from class was not an adjustment which may ordinarily be included in a reasonable adjustment plan. He told the Applicant that for missed classes or tests that he would need to lodge a Special Consideration application (which, we note from the policies, could provide a student relief from missed classes or tests). Mr McNamara also said that he would email the Applicant's Unit Convenors about the request and that the Applicant was to engage in discussions with his Unit Convenors. The Applicant was told that Unit Convenors may be able to make their own decision on whether they could make allowances for attendance or participation.
Mr McNamara then emailed the course coordinator for the Applicant's units, MATH1007, COMP1350, advising the coordinators that the Applicant was receiving treatment and it was likely that he may miss a number of his online tutorials as a consequence, and as a result may not have an opportunity to sit some of the weekly quizzes scheduled for the particular unit. He enquired as to whether there could be developed a plan so that the Applicant was not disadvantaged due to this situation and asked whether it would be possible for the Applicant to have alternative arrangements for the tests that he missed. The coordinators were told that the Applicant had reasonable adjustments in place for his tests, however he may need to undertake the tasks at an alternative time or have an alternative task if this was not possible. The coordinators were told that Mr McNamara will be able to support the Applicant with any Special Consideration application by the Applicant for when that occurred.
The support offered by Mr McNamara in respect of any Special Consideration application which the Applicant may make was an offer consistent with the University's policy indicating to the Unit Coordinators that one of the requirements for special consideration, documentary support in the form of a Professional Authority Form, would be provided to assist the Applicant.
On 14 August 2020 Professor Verity, the coordinator for MATH1007, responded and indicated that a clear plan could be provided as he was sure that the University can work around the medical appointments (which were yet to be scheduled). Professor Verity stated that each week there are two very short, 3-minute quizzes, both of which take place online. Each one was open for a period of at least 15 hours and the University could vary the times that were open to the Applicant but those opening times would have to be agreed in advance.
On 16 August 2020 Ms Ramikrishana, the relevant lecturer in the Department of Computing, responded to the enquiry in relation to weekly quizzes in COMP1350 and indicated to Mr McNamara that the request was acceptable to her and that the University could set up user overrides for whenever the Applicant was unable to do the test so that he could do so at a different time. There were no difficulties in the Applicant doing the tests at a later time as the tests were set up for that to occur.
In each case the Applicant was copied in on the email correspondence referred to at paragraphs 63 to 66 above.
The Applicant then on 4 September 2020 wrote to Mr McNamara by email enclosing his updated medical report regarding his current condition. This was the first medical report updating the Applicant's condition since March 2020. The medical report from his medical practitioner dated 27 August 2020 stated that as a result of the Applicant's condition he required treatment and multiple appointments and investigations by various specialists and therefore needed to take time off his studies during the tests. The report indicated that there would be times that the Applicant was unwell to attend his classes and lectures and the doctor expressed hope that the University would be able to help support the Applicant through this difficult period. There was no information as to the dates when it was likely that the Applicant would be unable to attend classes and lectures.
In his email of 4 September, the Applicant advised Mr McNamara that the Applicant intended continuing his studies at the University in a limited capacity for as long as he was unwell and was willing to do what was required. However, he indicated that some additional considerations were needed in order to enable him to do so. He stated in the email that he was hoping to arrange a long-term plan for the continuation of his studies including altering weighting of assessments and a more flexible approach to unit delivery. He stated that over the mid semester break he was hoping to catch up on an assignment and tutorial tests and also was seeking an extension of 2 weeks for the task, in addition to a longer-term consideration.
On 10 September 2020 the Applicant then lodged a Special Consideration application for unit COMP1350 and attached the documentation from his treating doctor as required which appears to be the report of 27 August 2020. The outcome of the Special Consideration application was that it was approved by the unit convenor on or around 12 September 2020. The Applicant was provided with extensions on his course work, opportunity to complete tests, and his attendance requirements had been waived. The Applicant was advised of this outcome by email of 14 September 2020.
As a result of this Mr McNamara formed the view that the Applicant had followed the correct Special Consideration process, which Mr McNamara was prepared to support, but his application had nonetheless been approved and Mr McNamara concluded that his advice had been followed for the process and that no further action was required of him at that time.
However, on 16 September 2020 the Applicant lodged a complaint with Student Wellbeing. The complaint was to the effect that Mr McNamara had not assisted him to formulate a plan in order to allow him to continue his studies during Semester 2, instead telling him that he could discontinue his studies for the semester and that the follow up email he had sent to Mr McNamara on 4 September had not yet been responded to. This complaint made no reference to the fact that the Applicant's Special Consideration application for unit COMP1350 made on 10 September had been approved by the course coordinator on 12 September 2020.
On 18 September 2020 Ms Piper, as the Disability Support Lead, responded to the 16 September email of complaint. The Applicant was informed that Mr McNamara was on annual leave at the time and he would be returning on 21 September. The Applicant was told that unit convenors had been made aware that he would require some flexibility with the completion of his courses. The Applicant was advised that Mr McNamara would set up an appointment to discuss with him a plan, booked for 22 September. He was told that if there are additional adjustments that he required that are outside of rescheduling his tests it would be a good opportunity to raise these requests with Mr McNamara so that he could make changes to the IEAP, or direct the Applicant to other procedures.
Mr McNamara then had a telephone consultation with the Applicant on 22 September 2020 as arranged. Mr McNamara made file notes of that conversation and with the aid of his file notes he said that the Applicant said that he was about to commence a clinical trial ahead of surgery and there would be a further 4-week period where he would not be able to attend classes and will miss class tests. The Applicant stated that he was planning to withdraw from COMP1350 and had already unenrolled from the unit tutorials. Mr McNamara said in words to the effect that if the Applicant was choosing to withdraw he should apply to withdraw before the last date for withdrawal without academic penalty if he had made his decision. The Applicant was told that this action would allow the Applicant to withdraw from the unit and have a "W" on his transcript and that he would also have the opportunity to apply for a withdrawal without financial penalty with medical evidence from his treating team.
Mr McNamara says that the Applicant then stated that he did not wish to accept that advice because he had felt that he had not been provided with a plan to manage his studies within the semester. In response Mr McNamara said that the Applicant had a plan with reasonable adjustments and that he was provided with confirmation from his unit convenors that they would provide flexibility around test dates and times. The Applicant then indicated that he would continue his studies in COMP1000.
Mr McNamara further said that he recalls the Applicant asking him to be permitted to complete alternative assessments which he understood to be assignments of a topic of his choosing in lieu of the tests and examinations for his units of study and recalls saying to the Applicant during the conversation words to the effect that there are limits to the adjustments that may be made as applied to missed classes and attendance requirements and it was not reasonable for the course to be significantly modified by changing content, or assessment methods. The Applicant in his reply evidence said he believes that the evidence of Mr McNamara concerning an assignment of a topic of his choosing was misleading and that he did not make such a suggestion.
As an outcome of this session with the Applicant a plan from the meeting, confirmed in Mr McNamara's notes of the meeting, was that the Applicant was to withdraw from COMP1350 and that Mr McNamara would write to his unit coordinator in respect of unit COMP1000 in regards to catching up on quizzes for weeks 6, 7 and in regards to the assignment which the Applicant had reported as had to change in requirements.
We accept the evidence of Mr McNamara set out at paragraphs 74 to 77 above with the exception of Mr McNamara's belief as to what form of alternative assessments the Applicant may have had in mind. We accept the veracity of Mr McNamara - that he believed this to be the situation, however we do not accept the content of his belief.
The Applicant then made his complaint to the Anti-Discrimination Board on 3 October in respect of the events dealt with above.
In respect of the approach by the Applicant directly to Dr Roberts, the course convenor of COMP 1000, on 28 September 2020 the matter was taken up by Ms Piper and further accommodation was afforded the Applicant.
[6]
Victimisation
We deal first with the Applicant's claim that by reason of what occurred between him and Mr McNamara on 22 September 2020 the University breached s 50(1) of the Discrimination Act which reads as follows:
"(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".
The basis of this claim is set out at paragraph 27 above.
We reject this claim. In our view, it mischaracterises what occurred in the conversation on 22 September 2020 between the Applicant and Mr McNamara. Mr McNamara was not required to contact the Applicant's treating doctor and acted on the material provided to the University by the Applicant. Mr McNamara did not challenge and nor did he fail to understand the Applicant's medical condition but by his actions accepted that based on that condition some adjustments could be made. He had confirmation from unit convenors that they would provide flexibility around test dates and times. The Applicant was in fact being offered support by Mr McNamara in the form of Professional Authority Form if he required them for missed tasks. Further support was offered at the time namely undertaking to contact Dr Roberts in connection with COMP1000 for further assistance which, to the Applicant's knowledge, occurred, because he was copied in on the email communication of 22 September 2020 to Dr Roberts.
This communication to Dr Roberts again set out that Mr McNamara was able to support Special Consideration if on any day the Applicant was not able to attend a class or complete a quiz. The Applicant was further advised to contact Dr Roberts with further questions. We reject the claim that Mr McNamara insisted that the Applicant withdraw from COMP1350 and accept Mr McNamara's evidence set out at paragraphs 74 and 75 above. Although neither the Applicant, nor Mr McNamara was required for cross examination our preference for Mr McNamara's evidence is supported by his file notes, and the more detailed description of what was discussed. In addition, the evidence shows, and we find, that the University was making adjustments to accommodate the Applicant's needs, conduct at odds with insistence that the Applicant withdraw. The claim of "insistence" is also inconsistent with the communications with the course coordinators referred to above which proceeded on the basis that the Applicant would be continuing to do the units. Further, the Applicant by email of 4 September 2020 indicated that he would continue his studies on a limited capacity whilst unwell, revealing his intentions, and by the Applicant's email of complaint on 16 September 2020 which did not state that Mr McNamara had insisted that the Applicant withdraw, but that he could discontinue, a position consistent with Mr McNamara's evidence and file notes. Having informed Mr McNamara of his intention to withdraw from the unit, and un-enrolling from unit tutorials, the need for further adjustments for the Applicant for COMP1350 did not arise.
By his conduct Mr McNamara did not cause the Applicant any detriment within the meaning of s 50 of the Discrimination Act. There is no evidence from which we would conclude that Mr McNamara acted in a manner in which he did on 22 September on the grounds that, as contended by the Applicant, he had made the complaint on 16 September 2020. We note also that the Applicant did not articulate before us how the conduct came within the scope of this section.
In our view it is clear that the Applicant at the relevant time was understandably anxious about trying to get a plan in place for the future, there had been some limited delays in the response to him and, even at its highest, as conceded by the University, there may have been a misunderstanding in relation to the position reached. None of that, in our view, justifies a finding that the Applicant was, by the conduct of Mr McNamara, victimised contrary to s 50(1) of the Discrimination Act.
In our view the evidence does not support a conclusion that Mr McNamara was not willing to and was not attempting to assist the Applicant in managing his studies and accommodating the medical conditions identified to the University in the forms of adjustments recommended by the medical professionals to accommodate his needs.
[7]
Discrimination Claim
The Applicant did not articulate before us the precise basis upon which he was contending that the University discriminated against him, a position which is understandable to a degree as he was self-represented.
The referral by the President of the Anti-Discrimination Board however identifies that his discrimination complaint was based on indirect discrimination which under s 49B(1)(b) of the Discrimination Act:
"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".
Section 49L(2) of the Discrimination Act in respect of education services provides that:
"It is 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
(b) by expelling him or her, or
(c) by subjecting him or her to any other detriment".
In our view, by the events leading up to 3 October 2020 the University did not subject the Applicant to a detriment within subsection 49L(2) and did not act, as it did, on the grounds of his disability. In our view, and we find, the University was attempting to ensure and made arrangements and adjustments consistent with the medical advice provided to it that no detriment was suffered by the Applicant. As is clear from our reasoning above, in March 2020 adjustments were made, in July 2020 further adjustments were made, on 14 September 2020 further adjustments were made and on 22 September there was set in motion a process to further accommodate the Applicant's needs to enable him to complete his studies and in respect of COMP1000 he achieved the result with high marks.
In our view, the Applicant also has not made out an adequate or sufficient case based on s 49B(1)(b) in circumstances where adjustments were being made to meet his requirements. In our view, the University also did not breach s 49L(2) of the Discrimination Act.
Moreover, the Applicant does not identify any form of relief which he has not already been afforded by the University in respect of any alleged discrimination under the Discrimination Act.
In respect of the claims for discrimination we are unable to identify any direct or indirect discrimination within the provisions of the Discrimination Act. There is no evidence of less favourable treatment to the Applicant in circumstances which are not materially different to the University treating or would treat a person who does not have that disability as contemplated by s 49B(1) of the Act. In addition, the evidence does not disclose that the University required the Applicant to comply with the requirement or condition with which a substantially higher proportion of persons who did not have that disability comply or are able to comply with being a requirement that was not reasonable having regard to the circumstances of the case with which the aggrieved person does not or is not able to comply. The Applicant did not identify the particular condition or requirement he could not meet, there was no evidence that his medical condition meant that he could not manage with the support that was being provided and there was no evidence that he was actually unable to comply with the requirements of the units in order for him to complete the units. The evidence does not support a conclusion that any requirement imposed on him was unreasonable.
The University policies provide for any student to seek Special Consideration in respect of any course at all times. The policy provides in detail provisions to assist students with disabilities. The University's policy provides that for any student, if at any time during a semester the student experiences short term, unexpected, serious and unavoidable circumstances which affect their performance in one or more assessments, they were entitled to apply for Special Consideration. It is described in the policy as a process of notifying the University that the student is experiencing such circumstances and that the situation is affecting their ability to complete one or more specific assessment task within their studies. For examinations and tests the policy indicates that it is important for students to remember that the University has a "Fit to Sit" model meaning that if the student is not well enough to sit an examination, that they should not sit it. In those circumstances it was the responsibility to lodge an application for Special Consideration to notify the University of their circumstances.
At all times this Special Consideration Policy was available to the Applicant and was utilised by him for positive effect. Moreover, Mr McNamara indicated that he would support Special Consideration in any situation which arose.
It is very understandable that the Applicant was, because of his very serious medical conditions, unwell and may have felt a level of frustration or disappointment that all his requests were not immediately met. However, the University, in our view, did accommodate his special needs and also demonstrated a willingness to continue to assess or reassess the situation as and when additional material was provided to it for consideration.
In our view there is also an absence of evidence that the Applicant suffered detriment as a result of the conduct of the University. That is not to say that his medical condition did not impact negatively on his ability to embrace all the subjects he wished to undertake or that his medical condition did not impact on his ability to undertake those tasks. That, however, in our view is a different matter from the outcome being as a result of discrimination or victimisation on the part of the University contrary to the provisions of the Discrimination Act.
In our view, the indication at the commencement of the proceedings by the Applicant that he pressed his claims as to what adjustments are to be made by the University going forward, or to provide a base line as to what is reasonable, cannot be made by us in respect of the complaints made to the Anti-Discrimination Board or in his articulated claims in these proceedings. In our view, no useful purpose will be served by us in doing so as the Applicant's circumstances are likely to have substantially changed at the time of the hearing, in respect of which there was no evidence, and no argument addressed by the Applicant as to what the position should be. Furthermore, the Applicant's circumstances may vary in the future, and any adjustments are best made in response to his particular situation at the time requested, and in relation to the requirements of the subjects of his enrolment.
[8]
Future Plan
For completeness we deal briefly with matters beyond the scope of the complaint. Following the complaint by the Applicant to the Anti-Discrimination Board Ms Piper, the University Disability Support Lead, took over in providing assistance in the management of the Applicant's Plan and any changes that may be required for the remainder of the session in an attempt to try and allay the Applicant's concerns. On 22 October 2020 she called the Applicant and offered to assist in managing and implementing his adjustments for the remainder of the session. She communicated with Dr Roberts the unit convenor on 22 October 2020 regarding possible adjustments that could be offered to the Applicant. Dr Roberts responded immediately that the University could redistribute the grades from the major creative work, but not from the exams, the exams all test completely different topics. Dr Roberts was open to several other ideas. There was no limit to the number of attempts the students could take at exams, no time constraints on when they happened and they could do them as Viva exams instead of online exams or do them asynchronously.
Between 22 October and 26 October there were various exchanges of emails between the Applicant and Ms Piper.
Ms Piper then states in some detail the continuing and ongoing efforts to accommodate requests of the Applicant throughout the period following 26 October 2020 in respect of COMP1000, a unit which the Applicant is granted a number of additional adjustments to enable him to satisfy the requirements of the course notwithstanding the difficult health issues he was suffering.
The Applicant proceeded to complete COMP1000 with a score of 100% for the quizzes undertaken for the task.
Ms Piper further indicates in her evidence which we accept that the University continued to make considerable efforts to accommodate the Applicant for the classes that he was enrolling for in 2021.
The events of 2021 are not properly the subject of complaint by the Applicant before the Tribunal. In our view, however, the evidence indicates that the University continued to make every effort to accommodate the Applicant and we have no reason to believe that they will not continue to do so in the future.
[9]
Conclusion
For the reasons set out above, we find that:
1. the Applicant failed to prove that he was victimised by the University contrary to s 50(1) of the Discrimination Act;
2. the University did not discriminate against him on the grounds of his disability contrary to s 49B and s 49L(2) of the Discrimination Act;
3. the relief sought by the Applicant in his Points of Claim had already been granted to him;
4. there was no proper foundation or evidence to enable us to embark on an assessment of what was appropriate adjustments for the future in respect of particular units undertaken by the Applicant supported by his particular medical condition at the time.
[10]
Order
Accordingly, we make the following order:
1. The Applicant's claim is dismissed.
[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: 02 December 2021