Mr Majoor was a first year student enrolled in a Bachelor of Information Technology (Cyber security) degree during the second semester of 2020. He has a chronic allergic/immune condition known as Eosinophilic Esophagitis (EOE) and an intestinal disorder, Small Intestinal Bacterial Overgrowth (SIBO). There was no dispute that each of those conditions is a "disability" as defined in the Anti-Discrimination Act. He complained to the President of the Anti-Discrimination Board about the conduct of Mr McNamara, an occupational therapist in the University's Accessibility Services Team and about the absence, as he saw it, of a sufficiently flexible study plan.
Mr Majoor started studying in the first semester of 2020 enrolling in three units. He registered with Student Wellbeing on 23 March 2020 and had a meeting with an Accessibility Service Practitioner a week later on 30 March 2020. Mr Majoor received an Individual Educational Access Plan which included several so-called "adjustments" to in class assessments and exams. During Semester Two, Mr Majoor enrolled in three courses: COMP1350, COMP1000 and MATH1007. In August 2020, Mr Majoor requested additional adjustments to the course requirements relating to take-home assignments and examinations.
On 18 August 2020, Mr Majoor withdrew from the MATH1007 course after he says the University failed to confirm whether requested adjustments could be made. He does not complain about that event. His complaint relates primarily to COMP1350. Mr Majoor withdrew from COMP1350 on 22 September 2020 following a conversation with Mr McNamara. He says the University had made adjustments for COMP1000 and he continued to study that course.
In the complaint to the Anti-Discrimination Board, Mr Majoor outlined the history of his interactions with the University. He said that on 14 August 2020 he spoke to Mr McNamara on the phone "explaining to him that I was now undergoing substantially more medical exploration of my illness, with the number of medical practitioners I would be seeing peaking at 6 concurrently". He went on:
I requested for a study plan that would consist of assignments, take home exams, or other non-time sensitive tasks . . .
A flexible study plan would allow me to temporarily miss tutorials/practicals as well as in class quizzes/exams without issue, as a I cannot predict my wellbeing, appointments, treatments, side effects of medications, etc
He then made the following express allegation of indirect disability discrimination which we repeat here:
I believe if in-class quizzes are to be administered at the end of a tutorial to measure the active engagement and understanding of the content taught, then not providing access to either recordings of the tutorial or equivalent, affects my ability to comply with the unit requirements.
I understand this to be a breach of the Anti-Discrimination Act (NSW) 1977, Section 49B, as it pertains to subsection 1, paragraph (b)
Section 49B(1)(a) defines "direct" disability discrimination. Section 49B(1)(b) defines "indirect disability discrimination":
49B 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.
The substantive provision on which Mr Majoor relied was s 49L(2):
49L Education
(2) 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.
[2]
The hearing before the Tribunal
Mr Majoor was not legally represented at the hearing. He relied on thirteen documents including his complaint to the Anti-Discrimination Board and supporting documents. Mr Majoor did not file a separate statement in the Tribunal proceedings and did not give oral evidence. He filed Points of Claim, which were not before the Appeal Panel. Apparently, Mr Majoor did not specify in the Points of Claim whether his complaint was one of direct discrimination as defined in s 49B(1)(a) or indirect discrimination as defined in s 49B(1)(b).
The University responded to the complaint as if it was a complaint of both direct and indirect disability discrimination in education. The University relied on statements from Mr McNamara and three other employees. Mr Majoor did not require any of these witnesses to attend for cross-examination.
At [33], the Tribunal noted that:
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.
The critical event in relation to the ground of appeal is the conversation Mr Majoor had with Mr McNamara on 22 September 2020. Mr Majoor wrote in his complaint to the Anti-Discrimination Board that:
During the phone consultation I was clear about my dissatisfaction with the current considerations and support currently being offered, I did not have any confidence I would be able to learn and catch up in units I had no experience or proficiency in.
I made clear my intentions of withdrawing from COMP1350.
Mr McNamara made a detailed file note of that conversation which was in evidence before the Tribunal. We highlight the following passages which relate to COMP1350:
Reported that he has missed a number of quizzes (associated with the missed classes), and that he is unsure of how he will be able to obtain the content to complete the quizzes.
. . .
Reiterated to [Mr M] that if he plans to remain enrolled in the unit that SWB will assist with Special consideration for missed tasks, and Reasonable Adjustments. [Mr M] stated that he is most concerned about potentially not being able to attend another four weeks of classes and missing content. Discussed inherent requirements in terms of class attendance, obtaining content from practical/interactive classes. Advised [Mr M] that it is generally not possible to adjust for missed content, particularly practical lab based content which must be delivered on campus.
Plan:
[Mr M] to withdraw from COMP1350 via eStudent.
According to Mr Majoor, there was no reference to the issue of obtaining recordings of tutorials in subsequent emails because Mr Majoor had already withdrawn from the subject about which he says he made that request. We accept that explanation.
In his statement, Mr McNamara did not refer to that part of the file note which records that they discussed "inherent requirements in terms of class attendance, obtaining content from practical/interactive classes". Nor did Mr Majoor highlight in his statement that he had told Mr Majoor that it is generally not possible to adjust for missed content.
At [44], the Tribunal wrote that:
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.
Mr Majoor says that he did not make that complaint "for the first time" as suggested by the Tribunal. He complained to the Anti-Discrimination Board of indirect discrimination based on a failure to provide him with access to either recordings of the tutorial or equivalent content.
At [88], under the heading "Discrimination Claim" the Tribunal states that:
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.
Mr Majoor points to his initial complaint to the Anti-Discrimination Board where he expressly alleged that the University had indirectly discriminated against him on the ground of disability by "not providing access to either recordings of the tutorial or equivalent".
[3]
Consideration of the ground of appeal
The only way a person can have a complaint under the Anti-Discrimination Act heard by the Tribunal is to first complain to the President of the Anti-Discrimination Board. If the President refers a complaint under particular provisions of that Act it becomes the subject of proceedings: s 95. While it is common for the Tribunal to direct a complainant to file some form of pleading, the subject of the Tribunal's inquiry is the complaint. That is clear from the fact that it is the complaint that is referred to the Tribunal and that the Tribunal has power to amend the complaint: Anti-Discrimination Act, s 96.
The applicant bears the onus of proof "on the balance of probabilities" in both direct and indirect discrimination complaints. An applicant must prove each element of their claim. That is the general rule for civil proceedings and can also be inferred from the fact that s 104 of the Anti-Discrimination Act explicitly places the onus of proof on the respondent to prove that their conduct comes within an exception in the Act or the regulations.
There are four elements to a complaint of indirect disability discrimination under s 49B(1)(b) of the Anti-Discrimination Act. In this case those elements are, firstly, that the University has required Mr Majoor to comply with a requirement or condition. The second element is that the requirement or condition is not reasonable having regard to the circumstances of the case. Thirdly, Mr Majoor is not able to comply with the requirement. Fourthly, a substantially higher proportion of students without Mr Majoor's disability comply or are able to comply with that requirement or condition compared with students with Mr Majoor's disability. The University is not required to tender any evidence to refute the complaint or offer an explanation for any requirement or condition imposed.
The Tribunal had Mr Majoor's complaint to the Anti-Discrimination Board before it. We accept, as the Tribunal found at [88], that Mr Majoor did not articulate the precise basis on which he was contending that the University had discriminated against him. For example, he did not identify the requirement or condition that the University had imposed on him and with which he could not comply. However, it can readily be inferred from the complaint that he was alleging that the University required him to complete in-class quizzes in COMP 1350 without access to either recordings of the tutorial or equivalent. He further asserted that that requirement was in breach of the indirect discrimination provision in s 49B(1)(b) of the Anti-Discrimination Act.
Mr Majoor did not provide a statement to the Tribunal but there was some evidence of the content of an alleged "requirement or condition" in Mr McNamara's file note of 22 September 2020. That note includes a reference to the provision of material or recordings of classes that would have enabled Mr Majoor to do the quizzes more effectively.
The fact that Mr Majoor withdrew from the course following the telephone conversation with McNamara, supports a finding that Mr Majoor could not comply with the requirement.
Mr McNamara's file note touches on the reasonableness of that requirement. The note records that he discussed "inherent requirements in terms of class attendance and obtaining content from practical/interactive classes". Mr McNamara also recorded that he advised Mr Majoor "that it is generally not possible to adjust for missed content, particularly practical lab based content which must be delivered on campus." This evidence supports a finding that the requirement is reasonable. Mr Majoor did not adduce or point to any evidence that the requirement was not reasonable in all the circumstances.
Various commentators have criticised the fact that the onus is on the applicant to prove something that is often exclusively within the knowledge of the respondent. (See, for example, D Allen, "Reducing the Burden of Proving Discrimination in Australia" (2009) 31(4) Sydney Law Review 579.) Some jurisdictions have reversed the onus of proof. For example, in Queensland the burden of proving "that a term complained of is reasonable" lies on the respondent: Anti-Discrimination Act 1991 (Qld), s 205. In New South Wales the onus remains on Mr Majoor to prove each of the four elements of indirect discrimination.
There was no evidence whatsoever as to the proportion of students who could or could not comply with the requirement.
The circumstances in which a Tribunal may be found to have failed to constructively exercise jurisdiction were summarised by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 at 9:
In this regard, a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]- [25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 at [34]. Further, as was noted in the 2020 Appeal Panel Decision at [28]:
A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
Mr Majoor clearly articulated an allegation of indirect disability discrimination in his complaint. The Tribunal failed to identify the evidence in Mr McNamara's file note which was relevant to Mr Majoor's claim. But the onus is on Mr Majoor to prove each element of indirect discrimination and he did not adduce or point to any evidence that any such requirement or condition was unreasonable. Nor was there any evidence whatsoever as to the proportion of students who could or could not comply with the requirement. In those circumstances, we are not persuaded that the Tribunal has failed to exercise jurisdiction.
The Tribunal must ensure that a lack of legal skill or objectivity does not prevent a self-represented party from claiming rights (including claims, defences or legal errors) that are supported by the evidence. In Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 (1 February 2002) the Administrative Decisions Tribunal commented that we "should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us." A significant qualification to that principle is that the evidence supporting the claim must be before the decision maker. It would be wrong for a decision maker to suggest a claim, or to find in favour of a self-represented applicant, where there was insufficient evidence to support the claim. In Walker v State of New South Wales [2003] NSWADT 13 at [11], the Tribunal said that there was insufficient evidence to "fashion" a case of indirect discrimination. The Administrative Decisions Tribunal also noted that it does not have the capacity to "gather evidence in support of a complaint."
As the Tribunal has neither failed to constructively exercise jurisdiction or failed to comply with any duty owed to a self-represented applicant, the appeal is dismissed. In those circumstances, there is no need to address the University's submission that there is no utility in the appeal.
[4]
Orders
We make the following orders:
1. the time for lodging the appeal is extended to 6 January 2022;
2. the appeal is dismissed
[5]
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: 29 June 2022
A party has 28 days to lodge an appeal from the day on which they were notified of the decision or given reasons for the decision, whichever is later: Civil and Administrative Tribunal Rules 2014 (NSW), rule 25(4)(c). Mr Majoor was given the reasons for the Tribunal's decision on 2 December 2021 so he had until 30 December 2021 to lodge an appeal. The Tribunal did not receive the Notice of Appeal until 6 January 2022, which was 7 days late. The University submits that the Tribunal should not exercise its discretion to extend the time for lodging the appeal.
The Tribunal has power to extend the time for lodging an appeal: Civil and Administrative Tribunal Act 2014 (NSW) (NCAT Act), s 41. Mr Majoor did not ask for an extension of time when he lodged the appeal but the Tribunal can do so of its own motion. At the hearing we asked Mr Majoor why the appeal was late. He said he posted the appeal documents to the Tribunal on 26 December 2021. A notice or document is taken to be served, "at the end of the seventh working day after the date on which the notice or document was posted to the person": Civil and Administrative Tribunal Rules, rule 13(4)(a). Taking into account public holidays, the seventh working day after 26 December 2021 was 7 January 2022. The Tribunal received Mr Majoor's documents on 6 January 2022.
The Appeal Panel set out the principles about extending time in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22]. Applying those principles, the length of the delay is short (7 days). We accept that the University has obtained a decision in their favour but there is no specific prejudice to the University if we extend time. We are satisfied that it would not be fair to Mr Majoor if we were to insist on strict compliance with the 28 day time limit. For the reasons we give below, the appeal has some prospects of success even though, ultimately, we have dismissed it.