Ms Doueihi
67Ms Doueihi said that she was enrolled in and attended the two Certificate IV courses - Real Estate and Business Broking - from 11 October 2010 to 17 December 2010. She successfully completed both courses, was issued with her certificates and transcripts, and obtained her licences as a real estate agent and business agent. That demonstrates that the issue of certificates and transcripts by the College, as was offered to Ms Obieta on receipt of her SAO acknowledgments, was sufficient to satisfy the licensing authority of competence in all relevant units of competency, and we so find.
68Ms Doueihi was present in the same class as Ms Obieta on 29 November 2010, 3 December 2010, 6 December 2010 and 9 December 2010 - that is, on each occasion on which Ms Obieta alleges discriminatory treatment at the hands of Mr Compton or Mr Sullivan.
69She agreed that there were some young males in the classes who were disruptive. She said that Mr Compton and Mr Sullivan made jokes from time to time to "refocus the males students' attention and to get matters back on track so that the rest of the students could get through the course content."
70She also said that on 13 December 2010, at the final examination, she and a number of other students discussed their concern over Ms Obieta's complaint of discrimination at the hands of Mr Sullivan, and decided to pen a letter denying the truth of the complaint. It was drawn up by another student. Ms Doueihi passed it on to other students for their signature.
71Her evidence otherwise went to the allegations contained in incidents 1 to 8 listed above.
72In relation to incident 1, she recalled that on 29 November 2010, Mr Compton conducted an in-class quiz during the Business Broking module, in which all students were asked to stand, and then to sit on giving a correct answer. She said she had no recollection of his failing to acknowledge Ms Obieta's answers, of failing to ask her to sit down, or of her being left standing with a male student. She did, however, concede to Mr Horton:
'that Mr Compton did not accept some answers from Ms Obieta but he did that to others as well. She says he did not single out her or anyone else.'
73This appears to mean that he did not invite Ms Obieta to sit down, despite her having answered some questions. That gives support to that aspect of Ms Obieta's account.
74Ms Doueihi's understanding that students were asked to sit on giving a 'correct' answer is not entirely consistent with Mr Compton's recollection. His practice, he said, was to ask students to sit regardless of the correctness of their answer. On that issue Mr Compton's account is the more likely to be correct for a number of reasons: he would be expected to know his usual practice; it is consistent with his aim of engaging and energising the class rather than conducting an assessment; there is no evidence that he intended to depart from his practice; it seems likely he would remember if he did on a particular occasion; Ms Doueihi does not specifically deny that students were asked to sit even when giving a wrong answer; and on the first day of the course she was probably not in a position to assess the correctness of all answers. Ms Doueihi's evidence does not support Ms Obieta's account that she was deliberately ignored.
75In relation to incident 2 (the allegation that Mr Sullivan said, "Why don't you stand up here and you teach" on 3 December 2010), Ms Doueihi recalled that throughout the courses Ms Obieta asked 'a lot of questions, the answers to which had already been given by the trainer/assessor while the Applicant had been chatting to other students'. However, Ms Doueihi did not recall her asking about the trust ledger on that occasion. She had no recollection of any response to the effect, "Why don't you stand up here and you teach".
76As such a response is apt to offend, it is reasonable to expect that a fellow student who overheard it would recall it. Ms Doueihi said there were only four rows of desks in the room, which she clarified in her oral evidence as meaning two rows of four desks each, facing the front, with an aisle between the middle two desks in each row. It seems likely the words would have been overheard by other students in the room, unless they were uttered in hushed tones, or obscured by loud noise. There is no evidence to that effect. Ms Doueihi told Mr Horton that she did hear Mr Sullivan saying words to that effect to the disruptive males in the class, though not to Ms Obieta. In the circumstances, it seems that Ms Doueihi would have heard and remembered the words if they had been said to Ms Obieta. She did not.
77Her evidence contradicts the account of Ms Obieta on this issue. It is consistent with what she told Mr Horton, and also with the evidence given by to Mr Horton by her fellow students, Ms Lam and Ms Abu-Zalef, the first of whom said she did not hear the words alleged, and the second of whom denied they were uttered. The account of Ms Doueihi and her fellow students corroborates the denial of Mr Sullivan, considered below. Neither Ms Doueihi nor the other two students have any apparent motive to support the respondent, or to contradict the applicant. Their independence causes their evidence to attract considerable weight. In addition, it is clear from other uncontradicted evidence that Ms Lam sat next to Ms Obieta in classes. For that reason, her evidence is particularly persuasive. For all those reasons, we are not persuaded that this incident occurred.
78In relation to incident 3 above (allegation that on 3 December 2010 Mr Sullivan said to and in relation to Ms Obieta, "You want to fight today? On Monday I will bring a baseball bat and hit her on the head"), Ms Doueihi did hear Mr Sullivan reply 'Sales' to a question asked in class by Ms Obieta on 3 December 2010. However, she did not hear him utter the other words alleged by Ms Obieta. She did concede to Mr Horton, "There could have been some banter about a baseball bat with the boys up the back."
79The words alleged were particularly likely to offend, if uttered to Ms Obieta. For that reason, it is highly likely that any student hearing them would remember them. There is no evidence they were uttered in hushed tones or obscured by noise. As Ms Doueihi did hear the first part of the alleged conversation, concerning a question regarding sales, she is likely to have heard the offending words if they were uttered. Ms Doueihi's evidence on this issue is consistent with what she told Mr Horton, and also with the evidence given to him by her fellow students, Ms Lam and Ms Abu-Zalef, neither of whom recalled the words being spoken to Ms Obieta.
80For the reasons given, the evidence of Ms Doueihi and her two fellow students attracts weight. It is consistent with that of Mr Sullivan, and inconsistent with that of the applicant. On this issue, we are satisfied that Mr Sullivan did not utter the words alleged to Ms Obieta, even if he did say something about a baseball bat to one of the male students, which he appears to concede (below).
81In relation to incident 4 above (that Ms Sullivan criticised the applicant's work without checking it and refused to teach her trust accounting procedures), Ms Doueihi said that Mr Sullivan 'went through the trust accounting procedures step by step with the entire class.' She also said that students including the applicant would often ask questions about the exercises and course content, and that Mr Sullivan answered all the questions asked.
82This evidence contradicts Ms Obieta's evidence that he refused to teach her trust accounting procedures. It is consistent with what she told Mr Horton, namely, "He was always at desks, helping people, he would always pause past Irene [Lam] and [the applicant] seeing if they needed help." Her account is corroborated by the fact that Ms Obieta was able to pass all course work, including trust accounting, and by Ms Lam's comment to Mr Horton that "John came up to everyone who needed help."
83For the reasons expressed, the evidence of Ms Doueihi and Ms Lam attracts particular weight. It does not support the applicant's allegations, and we are not satisfied that Mr Sullivan refused to teach her the relevant procedures. We are satisfied of the contrary.
84Though Ms Doueihi does not comment on the allegation that Mr Sullivan would criticise her work without checking it, she did make the following observation of his conduct toward the class generally to Mr Horton:
"He used to say, 'you've got that wrong' followed by 'OK let's go back and check'. He did not treat [Ms Obieta] any different".
85The fact that Ms Obieta's evidence has been rejected above is adverse to her credit. It is proper to approach her evidence with caution, particularly where it is not corroborated. There is no evidence to corroborate the assertion that Mr Sullivan criticised her work without checking it. He denied it. He said that when he did see her work, he indicated it was correct, and that otherwise he could not check her work because she would not let him. For the reasons set forth below, we accept that evidence. It is highly unlikely that he criticised her work. We are satisfied that he did not.
86In relation to incidents 5 and 6 (allegations that Mr Sullivan commented on her handwriting as being characteristic of Filipinos), Ms Doueihi recalled that he made observations politely about the nationality of students in Trust Accounting, including that of the applicant. This is consistent with Ms Doueihi's remark to Mr Horton that, "I might have heard something about Filipinos". She recalled that on one occasion Mr Sullivan made observations about the handwriting of students. However, she did not recall him having the conversations which Ms Obieta alleges, or conversations to that effect.
87There is no evidence that the words were uttered hushed tones, or obscured by loud noise. As they would, if uttered, have had the effect of singling Mr Obieta out, it is likely that Ms Doueihi would recall them if they occurred. She does not.
88Her evidence is consistent with the responses made to Mr Horton by Ms Lam and Ms Abu-Zalef, neither of whom recalled the comments being made. The evidence of these witnesses corroborates the denials made by Mr Sullivan (below). We are satisfied that he did not utter the words alleged.
89In relation to incident 7 (the allegation that Mr Sullivan said the exam was open book for everyone except Ms Obieta), Ms Doueihi agreed that Mr Sullivan told the class on 9 December 2010 that the exam would be open book. The applicant nevertheless asked him whether it would be open book. He replied:
"I've already covered this issue. It is an open-book exam".
90This evidence directly contradicts the applicant's account. It is not inconsistent with the remark made by Ms Doueihi to Mr Horton that "He may have said that as a joke." She did not concede to Mr Horton that Mr Sullivan had in fact said the words alleged by Ms Obieta. Her response suggests that she did not hear any such words. Similarly, Ms Lam and Ms Abu-Zalef told Mr Horton said they did not hear the words alleged. Ms Lam, accordingly to Mr Sullivan, was standing behind Ms Obieta at the time. That evidence is uncontradicted, and we accept it. Doueihi's account corroborates the denial by Mr Sullivan below. The weight of the evidence supports a finding that the words were not uttered as alleged, and we make that finding.
Mr Sullivan
91Mr Sullivan is the husband of the College principal, Mrs Sullivan. Since July 2009, he had been a senior trainer at the College, and its financial controller. He taught the modules, Trust Accounting and Cashflow Management. On 8 November 2010, he commenced the first of three classes in Cashflow Management. He introduced himself to the class, and asked (among things) their nationalities. From their responses, he considered that around 85% were born overseas, or were children of parents who had been born overseas. In his experience as a trainer at the College, this was usual. He recalled that Ms Obieta said she was a Filipino.
92He commenced the Trust Accounting module on 2 December 2010. It was a five day course. The second day of the course was held on 3 December 2010.
93In relation to incident 2 on 3 December 2010, he said he did not recall Ms Obieta asking about a trust ledger, but denied having invited her to stand up and teach as alleged. That is consistent with the response he gave to Mr Horton, and with the evidence of Ms Doueihi, Ms Lam and Ms Abu-Zalef. We are satisfied that he did not utter the words complained of.
94In relation to incident 3 on the same day, he said he did not recall being asked a question about a chart of accounts, or responding 'Sales'. However, he denied having said to Ms Obieta, "You want to fight today? On Monday I will bring a baseball bat and hit her on the head."
95He had conceded to Mr Horton as follows:
"... I did make a comment to X [name deleted] (one of the male students in the group sitting up the back) about a small baseball bat I had, not as long as a ruler, and that I would bring it on Monday."
96This bat was described in his affidavit as a 'mini baseball bat' given him by a student years ago, which sat in a drawer at the Respondent's former premises at Castle Hill, not in the class room.
97His concession to Mr Horton is consistent with Ms Doueihi's recollection that "There could have been some banter about a baseball bat with the boys up the back." It does not support the allegation that he uttered the words complained of to Ms Obieta, or in relation to her. We are satisfied that he did not.
98In relation to incident 4 (that he criticised the applicant's work without checking it and refused to teach her trust accounting procedures), Mr Sullivan said that he conducted two cashbook exercises on 3 December 2010 with the entire class. A third exercise was to be completed by students individually - apparently at another time - in preparation for the final exam. As the two in-class exercises were conducted with the class as a whole, he says there is no reason why he would have had occasion to criticise the applicant's work individually. He recalled that on occasions when he did ask to see the detail, she declined to show it to him. In his file note of the conversation with her on 9 December 2010 (extracted below), he recalled that on the few occasions she had shown him her work, he indicated it was correct.
99He denied criticising her work or failing to teach her trust accounting procedures. On the contrary, he considered her 'a very competent student who generally produced high quality work'.
100As indicated, his denials are consistent with the evidence of Ms Doueihi and Ms Lam. They are consistent with Mr Sullivan's responses to Mr Horton. We find that he neither criticised the applicant's work without checking it (or at all), nor failed to teach her trust accounting procedures.
101In relation to incidents 5 and 6 (allegations that Mr Sullivan commented on her handwriting as being characteristic of Filipinos on 3 and 6 December 2010), Mr Sullivan denied making the comments complained of. He noted that there would be no reason for him to have asked 'Are you a Filipino? Are you a Filipino?' as alleged, as Ms Obieta had informed him of her nationality on the first day of class.
102He conceded that on one occasion, he told her, "My handwriting is worse than yours'. He also said that, when completing cash book exercises with students, he would typically hand out typed versions of the exercises complete with answers, and explain, "I'll give you a copy with the answers in case you can't read your own handwriting". It was his experience that students would often cross out their workings and recomplete answers a number of times, because of the maths involved. He would also tell entire classes, not individual students, that their handwriting must be legible so that their assignments and exams can be assessed.
103There is nothing inherently unlikely about this evidence. It is consistent with the responses given to Mr Horton. Mr Sullivan's denial that he uttered the words alleged is consistent with the evidence of Ms Doueihi, Ms Lam and Ms Abu-Zalef, none of whom heard the words alleged. It is quite unlikely that he would have asked Ms Obieta repeatedly, 'Are you a Filipino?' in circumstances where she had already informed him that she was. We are satisfied that he did not utter the words alleged.
104In relation to incident 7 (the allegation that Mr Sullivan said the exam was open book for everyone except Ms Obieta), Mr Sullivan conceded that he told the students that the exam was open-book, and observed that this was typically more difficult than closed book exams. He denied, however, saying to Ms Obieta the words alleged by her. His evidence is consistent with what he told Mr Horton, and with the recollections of Ms Doueihi, Ms Lam and Ms Abu-Zalef. We are satisfied that it is true. We find that he did not utter the words complained of.
105In relation to incidents 8 and 9 (the allegations that Mr Sullivan said he had only been joking, that this was the first time he had encountered a Filipino, and that he told Ms Obieta not to come back), Mr Sullivan said that the applicant did approach him after class on 9 December 2010, as he was packing his bags to leave. Ms Lam stood behind the applicant, shaking her head. He conceded that the applicant used the word 'discrimination', but could not recall precisely what she said about it.
106He denied that he said "I was only joking". He recalled asking, "Are you joking?", as he did not believe the applicant was being serious.
107He denied saying that she was the first Filipino he had encountered. He observed that he had taught an entire class of Filipinos in 2008 or 2009. That evidence is uncontradicted, and we accept it. It is highly unlikely that he would have said Ms Obieta was the first Filipino he had encountered. He did not recall the applicant referring to her nationality on 9 December 2010 at all.
108He said that he complimented her in the following way, when she expressed concern about passing Trust Accounting:
"From the work I have seen you produce in this class, you should have no problems passing the final examination."
109He denied telling Ms Obieta not to return. He recalled saying instead: "If you do not want to finish the course, you do not have to come back." There is nothing inherently improbable about such an answer where, as here, a student is complaining about her treatment. Its utterance could not amount, in our view, to a detriment.
110He denied the remainder of the conversations alleged.
111He said that Ms Obieta complained that Mr Compton had ignored her during an in-class oral assessment in Business Broking, by failing to accept her answers and telling her to sit down. He replied that Mr Compton was blind. When she said he drove a car, Mr Sullivan denied it. She asked how Mr Compton could read legal documents. He replied that he used special computer software.
112After he left, he rang Mrs Sullivan and told her that he was uncomfortable about returning to class the next day in light of what had happened. As indicated, Mr Compton took his place.
113Mr Sullivan made a file note of the conversation that evening, which was before the Tribunal. Though less detailed than his affidavit, it was consistent with his evidence. It also revealed that Ms Obieta had complained first about the disruptive male students up the back, saying that Mr Sullivan paid them too much attention and too little to her. It recorded that she complained of discrimination on the grounds of her race, but that she declined to give details when asked. It also recorded:
114"Ms Obieta was extremely concerned about passing her trust accounting assessment. I informed her that if she completed her assessment at the same standard that her classroom work was done, that she would not have a problem with passing the assessment. On the few occasions that Ms Obieta had shown me her classroom work, I had told her that her answers were correct. I had been unable to look at the detail of her classroom work, as each time I asked to see her work, she covered her book with her hands and said she didn't want me to look at it. It appeared that Ms Obieta had completed the classroom assessments at home prior to the classroom activities, as from what I could see, her pages were already complete when we started each exercise."
115His evidence before the Tribunal was consistent with his file note, so far as it went. His evidence was also consistent his answers to Mr Horton.
116Importantly, Mr Horton had asked Ms Lam about her recollection of the conversation between Mr Sullivan and Ms Obieta witnessed by her on 9 December 2010. Ms Lam did recall the conversation, and repeated what she could recall. Her recollection gave no support to Ms Obieta's account, save that she agreed that Ms Obieta 'kept going on with complaints', and that Mr Sullivan said, 'You are one of the best students'.
117Having regard to the caution with which it appropriate to approach the applicant's evidence, and to fact that is not supported by that of Ms Lam, we are satisfied that the words alleged to have been uttered by Mr Sullivan on that occasion were not uttered, and prefer his evidence on that issue. We accept his evidence generally as being true. Nothing that he admits having said on that occasion appears to have been motivated by the applicant's race, or (notwithstanding the merger of issues) to be capable of amounting to discriminatory conduct, or a detriment.