Mewett v The University of Sydney

Mewett v The University of Sydney - [2019] NSWCATAD 199 - NSWCATAD 2019 case summary — Zoe

[3]

The Respondent's case

The Respondent stated in its submissions to the NSW Civil and Administrative Tribunal (NCAT) that it had received no requests from Mr Mewett during the complaint period of 30 May 2017 to 30 May 2018 to withdraw from any units of study. Mr Mewett was either not enrolled in any units of study or had suspended his studies during the complaint period.
The Respondent had no record of Mr Mewett requesting withdrawals during the complaint period 30 May 2017 to 30 May 2018, and if such a request had been received, it would have been refused because of the timing of his request.
The University's Coursework Policy 2014 provides that a student may withdraw from a unity of study before the Census Date. In 2016, the Census Dates were 31 March 2016 for units of study in semester 1 2016, and 31 August 2016 for units of study in semester 2, 2016.
The Coursework Policy 2014 also provides that a student may discontinue from a unit of study with a record on the student's transcript of 'Discontinued not to count as failure' after the Census Date but before the end of the seventh week of semester. That is, the period 1 April 2016 to 15 April 2016 for semester 1, 2016 and 1September 2016 to 9 September 2016 for semester 2, 2016.
In the event that Mr Mewett had requested to withdraw from the units of study in question during the complaint period (30 May 2017- 30 May 2018), the request would have been outside the required timeframes and as such Mr Mewett would have been ineligible to withdraw or discontinue the units of study in question.
In addition, Mr Mewett had not provided the University with any evidence of exceptional circumstances as to why he could not withdraw within the required timeframe.
If a student wishes to withdraw from a unit of study, they would usually do so via the University's Sydney Student portal. If a student is unable to comply with this practice, the Respondent considers the issue on a case-by-case basis.
Between February 2015 and August 2018, Mr Mewett used the Sydney Student portal to discontinue and withdraw from various units of study, to apply to suspend his studies and to submit an internal course transfer application. For example, between 21 February 2015 and 1 April 2015 Mr Mewett used the Sydney Student portal to withdraw from seven units of study.
The Respondent had made extensive efforts to accommodate Mr Mewett's disabilities, including the installation of Dragon Naturally Speaking dictation software on to his laptop computer.
The Respondent had not unlawfully discriminated against Mr Mewett. Mr Mewett had not provided any factual or evidentiary basis to support a finding that, on the ground of disability, he had been treated less favourably than a comparator, or that the Respondent had imposed any unreasonable requirement or condition that Mr Mewett was unable to comply with.
The Tribunal understands that the President declined Mr Mewett's complaint (the Complaint) on the ground that the complaint was lacking in substance. See 92(1)(a)(i) of the Anti-Discrimination Act 1977 (NSW) (the Act). As a consequence, the Complaint may not be the subject of proceedings before the Tribunal without leave of the Tribunal: s 96(1) of the Act.
For the reasons that follow, I have decided not to grant leave for the Complaint to proceed before the Tribunal.

[10]

Mr Mewett's complaint to the ADB dated 30 May 2018

Mr Mewett's complaint to the ADB dated 30 May 2018 was dictated to an officer of the ADB. To make greater sense of the complaint set out below the Tribunal has made some suggested amendments to the written complaint as shown in brackets.
Mr Mewett stated that the complaint began in the middle of 2015 and is going into 2016 and was on going.
The complaint stated that in 2016 second semester, (or there about), I applied for special consideration to make and all multiple complaints and of nature and I applied through the appropriate departments and requests. I requested to give my complaints verbally.
They were of highly complex nature involving misconduct by staff at the University of Sydney. The University refused on multiple occasions to allow me to verbally, insisting that it had to be done by documentation. I continued requesting this throughout 2016 semester and 2017 semester. At one point through that process the head of disability services reviewed a letter from my psychiatrist relating to the matter and declined firmly to not give this verbally. This equals my expressions of complaints and something else. University of Sydney does not have a policy of disallowing complaints verbally in person or telephone. Therefore, I understand the University has discriminated me against my disability. Current email from the University declaring such things to declare verbally. As a result of the discrimination I was not afforded the opportunity to withdraw from the units of study that I was enrolled in. As a result, not being able to withdraw after census date. I have received three failed units on my academic record.… As a consequence, failed three units which I failed not in attendance for those units and did not complete course work. I am not eligible (now) to transfer to another undergraduate degree that I have requested Bachelor of Design and Computing.
I am continuing to have the University (accept my) complaint and withdrawal of these units that I have been given in order to have a suitable academic record to transfer to the Bachelor of Design and Computing.

[15]

Complaint of direct disability discrimination

To establish a complaint of direct disability discrimination under section 49B(1)(a) Mr Mewett would need to establish: 1. That the University treated him less favourably, in the same or similar circumstances, than it treated, or would have treated a person who was not presumed to have the conditions of acquired brain injury, depression and anxiety (less favourable treatment); and 2. That one of the reasons for that less favourable treatment was because of his disability, a characteristic that generally appertains to, or is generally imputed to persons with his particular disability (causation).
The first element requires a comparison to be drawn between the treatment afforded Mr Mewett and the treatment that was afforded, or would have been afforded, to a person/student not thought to have Mr Mewett's disabilities (or substantially the same condition), in the same or similar circumstances to Mr Mewett. Critical to that exercise, is the identification of the circumstances surrounding the alleged less favourable treatment.
It is not clear from Mr Mewett's complaint to the ADB or his submissions that during the period of complaint accepted by the President of the ADB 30 May 2017 to 30 May 2018, Mr Mewett requested the University to allow him to withdraw from the 3 units undertaken in semester 2 of 2016 - either orally or in writing. The Tribunal understands that Mr Mewett's case is that he should have been permitted to withdraw orally from the 3 units undertaken in semester 2 of 2016. Even if the Tribunal were to accept as a matter of fact that Mr Mewett did make such a request to be permitted to withdraw from the units of study, he has not provided either a real or hypothetical comparator student without his disabilities who was or would have been permitted to withdraw from the units taken in semester 2 of 2016 during the complaint period.
The University has stated that its policy in relation to all students concerning withdrawals means that no student would have been permitted to withdraw from the units enrolled in for 2016 during the complaint period 2017-2018. Such a request would have been out of time.
If the matter were to proceed to hearing, I think the likelihood of Mr Mewett being able to establish that he had been subjected to less favourable treatment, than a comparator student, would be remote.

[17]

The requirement or condition

In general terms the Tribunal understands that the requirement/condition at the base of Mr Mewett's complaint is that Mr Mewett was required to withdraw from the relevant units of study in writing. Mr Mewett has provided medical reports supporting the contention that he was unable to undertake complex transactions in writing. However, the Tribunal notes that the Respondent has also provided evidence that Mr Mewett did in fact access the student portal during the complaint period and undertake transactions in writing.
No evidence was provided to the Tribunal that a substantially higher proportion of student/persons comply or are able to comply with that requirement or condition.
The Tribunal understands that Mr Mewett referred to examples of his interactions at Curtin University and UTS as demonstrating that it was not "reasonable in the circumstances" for the University of Sydney to require him to withdraw in writing.
For the purposes of this application, putting Mr Mewett's case at its highest, the Tribunal will hypothetically accept that Mr Mewett's complaint meets the requirements set out in section 49B (1)(b) to establish indirect discrimination.
The Tribunal notes that Mr Mewett's complaint to the ADB commences: "that in 2016 second semester, (or there about), I applied for special consideration to make and all multiple complaints and of nature and I applied through the appropriate departments and requests. I requested to give my complaints verbally. They were of highly complex nature involving misconduct by staff at the University of Sydney. The University refused on multiple occasions to allow me to verbally, insisting that it had to be done by documentation. I continued requesting this throughout 2016 semester and 2017 semester. "
It is not clear from this complaint to the ADB that Mr Mewett made any specific request to withdraw from the 3 units of study to anyone at any specific time. The complaint refers to special consideration and misconduct by staff. It does not refer to withdrawal from units of study. In the absence of this evidence this Tribunal concludes that the possibility of Mr Mewett establishing the factual underpinning of his complaint is remote.
The problem remains that the period of the complaint accepted by the President of the ADB was from 30 May 2017 to 30 May 2018. There is no specific evidence that Mr Mewett did request during this period either orally in writing to anyone to withdraw retrospectively from the relevant 3 units of study.
It follows that, cast as a complaint of indirect discrimination, the Complaint must fail.

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Judgment (21 paragraphs)

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Legislation Cited (1)

Cases Cited (3)