Rodriguez v Technical and Further Education Commission

Legal Principles

1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
2. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones at [58]; Ekermawi at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
6. In determining whether to grant or refuse leave for a complaint to proceed pursuant to s 96(1) of the Act, the applicant's evidence must be taken at its highest - that is, everything the applicant has put in evidence is accepted as true - and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).
7. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

Disability Discrimination in Education

1. Section 4 of the Act defines disability to mean: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
2. The Act defines disability to include past, future and presumed disability: 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability - (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
3. Section 49B outlines what conduct 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. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. ...
4. Section 49L provides: (1) It is unlawful for an educational authority to discriminate against a person on the ground of disability-- (a) by refusing or failing to accept his or her application for admission as a student, or (b) in the terms on which it is prepared to admit him or her as a student. (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. (3) Nothing in this section applies to or in respect of-- (a) a private educational authority, or (b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant. (4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority. (5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.
5. Section 50 of the Act states: 50 Victimisation (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. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Consideration

1. The Applicant's evidence was contained in the President's Summary of Complaint documents. The Applicant submitted that the following evidence demonstrated that the Respondent had contravened the Act: …Only 4 students were attending class at that time. They simply could have permitted any teacher to conduct a virtual meeting while in the classroom, allowing me to listen without incurring any additional costs. And allow me just to ask my questions. Even the classrooms for Paralegal courses were equipped with computers, providing ample resources that could have been utilized to help me. On October 20th, when they attempted to remove me from the Diploma course, I had only two subjects remaining to complete the course, which was scheduled to conclude in December. In contrast, the other students in the course still had six assignments pending. …everyone in the Paralegal course was aware that I had lodged a complaint against TAFE regarding my marketing course. I was the person to inform them the first day of class, exactly because I wanted to avoid coming here today. Disability services declined my request for a legal teacher to assist with explaining assignments, directing me instead to a literacy teacher. While their offer aimed to aid with English skills, planning, and table creation, these aspects aren't relevant to legal assignments, which primarily involve research, issue resolution, composing emails and perform role plays to/with solicitors. The risk of misinterpreting information from statutes is high for students lacking legal background knowledge. As well I did have numerous questions regarding the case study and the bad writing in the TAFE assignments. However, a teacher who lacks knowledge in legal matters will not be able to provide answers. I provided an email from Paula Howard (disability consultant) explicitly denying my request for a teacher to engage in role play activities. She stated that such activities are not within their scope. However, I've been actively participating in role play sessions with teachers at TAFE for the past three years and I have got a lot of evidence to present in the hearing about that. I can show you the 100 roles Plays I have done with my ex-tutor teacher who they do not allow me to work with, anymore (victimization for my complaint number 2023-00461285)
2. From the Applicant's evidence and her submissions during the hearing on 15 May 2023, I confirmed with her that her complaint was: 1. That the Respondent directly discriminated against her on the ground of her disability, contrary to s 49B(1)(a) of the Act, by treating her less favourably than in the same circumstances, the Respondent treats students who do not have her disability. The disability according to the Applicant is a broken ankle preventing her from attending classes in person. The relevant comparator according to the Applicant is herself without a broken ankle, when she was studying for her Marketing course at TAFE NSW, and was provided with specific adjustments including being allowed to attend class virtually, rather than in-person. 2. That the Respondent indirectly discriminated against her on the ground of her disability, contrary to s 49B(1)(b) of the Act, by imposing a condition or requirement on her, being the attendance of classes in the Paralegal Services Diploma course in-person. The Applicant submitted that a higher proportion of students without her disability comply or are able to comply with that condition or requirement. The Applicant submitted that the condition or requirement to attend classes for this course in-person was not reasonable in circumstances where she was unable to physically leave her apartment to get to classes in a wheelchair, and she was not able to comply. 3. That the Respondent victimised the Applicant contrary to s 50(1)(a) of the Act by subjecting her to a detriment, being the requirement to attend classes in person and not providing her with adequate disability support from a legal studies teacher, because she had brought proceedings under the Act against the Respondent in 2023/00461285.
3. The Applicant did not articulate how the direct discrimination or indirect discrimination she alleged against the Respondent was unlawful in the context of her education. This would require her to identify how the discrimination denied or limited her access to a benefit provided by the educational authority, being the Respondent, pursuant to s 49L(2)(a), and/or subjected her to "any other detriment" pursuant to s 49L(2)(c). For the purpose of determining whether leave ought to be granted, I infer from the Applicant's submissions that she alleges the detriment she suffered was the "sending me four harassing emails"; "attempting to coerce me into withdrawing from the course"; "not giving me the correct help to be successful in the course"; "denying my request for a teacher to engage in role play activities"; "directing teachers not to respond to students' emails", which caused her to feel discarded and worthless: No one has truly empathized with the struggles I endured. As widely known, I battled severe anxiety and chronic depression. On top of that, confined to a wheelchair, I found myself incapable of performing basic tasks, isolated in my struggles. I spent days and days without a shower, gripped by fear of another accident and the potential for further injury this time in the toilet. There wasn't a single individual available to assist me in navigating the stairs and getting even to sit in the garden. In NSW, there aren't any social workers tasked with transporting students to school under these circumstances. … TAFE NSW attempted to discard me like trash simply because I had a broken ankle, stripping away my right to education due to an accident.
4. Identification of a comparator in a direct discrimination complaint has to take into account all the circumstances of the case, not just those that are convenient to the Applicant, to reflect circumstances that are the same or not materially different to those the Tribunal is considering. The Respondent submitted that the comparator submitted by the Applicant, being herself when she was studying marketing, was not the correct comparator as it did not reflect the circumstances of the case. The correct comparator, according to the Respondent, was another student unable to attend in-person classes in the Paralegal Services Diploma course, but who did not have the Applicant's disability of a broken ankle. I accept that submission. The evidence provided by the Applicant demonstrated that, in relation to the Paralegal Services Diploma course, the Respondent was unable to provide additional support: We are unable to provide additional support for your studies away from campus, as our legal teachers are all fully programmed and do not have capacity to take on more hours.
5. There was no evidence to suggest that the Respondent would have acted any differently towards any other student who was unable to attend classes in-person. The claim of direct discrimination is therefore lacking in substance.
6. With respect to the claim of indirect discrimination, the Respondent submitted: 26. In relation to indirect discrimination, the applicant will need to argue that the options made available to her for completing the course constituted a 'requirement or condition' with which she was unable to comply. However, the applicant ultimately completed the course in December 2023 using available online resources. Accordingly, to the extent the options for the applicant to complete her Diploma were a 'requirement of condition', the applicant was able to comply with them.
7. I agree with the Respondent's submission. The Applicant's completion of the course in December 2023, without deferring or withdrawing, or attending classes in-person, demonstrates that there was no condition or requirement imposed on the Applicant. The email from Ms Price setting out her options did not constitute the imposition of a condition or requirement. Even if those options were to be considered conditions or requirements, I agree that they were not unreasonable in the circumstances expressed by Ms Price in her emails to the Applicant. The Applicant's claim for indirect discrimination is therefore lacking in substance.
8. Taking the Applicant's evidence at its highest, I do not accept the Applicant's submission that the Respondent, through its employees, sent harassing emails or attempted to coerce her into withdrawing from the course. The emails from Ms Price and Ms Howard to the Applicant set out the options available to the Applicant to complete the course she was undertaking and do not constitute harassment or coercion. I also do not accept, based on the Applicant's evidence, that she was "not given the correct help to be successful in the course". The evidence demonstrates that the Applicant successfully completed the course at the end of 2023.
9. Even accepting the Applicant's evidence that the Respondent denied her request for a teacher to engage in role play activities, and directed teachers not to respond to her emails (based on the Applicant's assertion), there is no evidence causally connecting any of that conduct with the Applicant's disability, other than the Applicant's assertion.
10. Similarly, there is no evidence that the conduct referred to in paragraph 31, or Ms Price and Ms Howard's emails to the Applicant referred to above at paragraph 2 and 3, were causally connected to the fact that the Applicant had previously made a complaint under the Act so as to constitute victimisation, other than the Applicant's assertion of a temporal connection. There is no evidence that the Respondent subjected her to a detriment that she would not have otherwise been subjected to but for making a previous complaint of discrimination to ADNSW. There was no direct statement made by the Respondent or its employees or witnesses regarding a previous complaint or proceedings, and no evidence supporting a finding that either Ms Price or Ms Howard are or were aware of the Applicant's other complaint under the Act.
11. As there is no direct evidence of causation, to support a claim of victimisation, a causal link between the Applicant's previous discrimination complaint or proceedings and the Respondent's conduct would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70].
12. On the evidence before me, I am not satisfied that a victimisation complaint will be able to be made out by the Applicant. Even accepting the Applicant had informed her classmates and Maryanne Flood that she had previously made a complaint, there is no evidence that this information was conveyed to Ms Price or the Respondent, and the more probable and reasonable explanation for the Respondent's conduct is explained by Ms Price to be the lack of availability of legal teachers. I decline therefore to infer that there was a causal connection between the Applicant's previous complaint and the Respondent's conduct in outlining for the Applicant the options available to her while she was unable to attend classes in-person due to her broken ankle, or denying her request for a teacher to engage in role-play activities, or directing teachers not to respond to her emails.
13. For those reasons, I agree with the grounds for declinature by the President of Anti-Discrimination NSW that the complaint lacks substance.
14. I take into consideration that this leave application will finally determine the Applicant's rights with respect to the subject of her complaint under the Act. I accept, for the purpose of determining whether leave ought to be granted, that the Applicant experienced emotional distress during the period of complaint and that she believes this could have been alleviated by the Respondent. However, there is no evidence other than the Applicant's assertion that the Applicant has, in fact, suffered any compensable loss or damage, or that any such loss or damage was causally connected in any way to the Respondent's conduct. Even if the complaint were to proceed, it is therefore unlikely that compensatory relief would be ordered under s 108(2)(a), or that any other substantial relief would be appropriate, considering the Applicant has already been awarded the Paralegal Services Diploma she was seeking.
15. As submitted by the Respondent, if leave were granted the Respondent would be put to significant costs defending a complaint which is lacking in substance. In my view, considering the evidence and submissions, it would not be fair or just for the Tribunal to grant leave in the circumstances.
16. Leave is therefore refused under s 96(1) of the Anti-Discrimination Act 1977.

Orders 1. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977.

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: 21 May 2024