The applicant, Ms Monica Silvana Suarez Rodriguez, complained that she was discriminated against on the basis of disability and race by the respondent.
The President of Anti-Discrimination NSW declined both Ms Rodriguez's complaint of discrimination and victimisation. The complaint was declined pursuant to s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (the AD Act) for the reason that it was lacking in substance.
The matter is before the Tribunal to determine whether the applicant should be granted leave to proceed under s 96 of the AD Act.
[2]
Relevant legislation
Section 4 of the AD Act defines "race":
race includes colour, nationality, descent and ethnic, ethno-religious or national origin.
Section 7 provides and provided at the relevant dates:
7 What constitutes discrimination on the ground of race
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator -
(a) on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or
(b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, 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) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
Section 17 provides:
17 Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of race -
(a) by refusing or failing to accept the person's application for admission as a student, or
(b) in the terms on which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of race -
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or
(b) by expelling the student or subjecting the student to any other detriment.
(3) Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed.
Section 49B(1)(b) of the AD Act relevantly provides:
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.
(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. …
Section 53 provides:
53 Liability of principals and employers
(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services."
Section 50 provides:
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.
Section 92 provides:
92 President may decline complaint during investigation
(1) If at any stage of the President's investigation of a complaint -
(a) the President is satisfied that -
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or
(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or
(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
(2) The President, in a notice under this section, is to advise the complainant of -
(a) the reason for declining the complaint or part of the complaint, and
(b) the rights of the complainant under sections 93A and 96.
Section 93A provides:
93A Referral of complaints to Tribunal at requirement of complainant
(1) If the President has given a complainant a notice under section 87B (4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal.
(2) On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal.
Section 96 provides:
96 Leave of Tribunal required for inquiry into certain matters
(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.
…
[3]
Factual background
The complaint alleges a number of incidents occurred over a period from 29 March 2023 to 19 July 2023. The applicant contends the following incidents occurred between her and two teachers, whom I will refer to as Ms AA and Ms BB:
1. On 29 March 2023 Ms AA publicly humiliated, exploited and mocked the applicant during class by criticising her English grammar in front of the class (March incident);
2. On 28 April 2023, a second teacher Ms BB, subjected her to repeated humiliation by "demanding answers regarding an event from the previous day" where, the applicant alleges that she expressed her inability to recall the details but was persistently placed on the spot (April incident);
3. Various assessments in her diploma were unfairly marked, including assessments on 7 April 2023 and 14 June 2023; and
4. She made prior complaints to the respondent but the respondent failed to conduct a fair investigation into the complaints.
The respondent investigated the complaints and found that it did not discriminate against the applicant.
[4]
The applicant's submissions on leave
The applicant submits that her case should be taken at its highest (CZH v University of Technology Sydney [2017] NSWCATAD 82). In Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35] it was said that:
" …the appropriate way forward is to take the Complainant's evidence at its highest point or in other words, and for the purposes of this exercise to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination."
The applicant said that Ms AA was mocking "my English on 29 March 2023", and she gave examples, of what can only be interpreted as corrections of her grammar, for example "The teacher said: 'you have to say the man said'."
"She said 'I don't understand your English'. She said: 'this is an assessment you need to have good English.' To the whole class she said you need to have good English."
The applicant alleged that she was subjected to race discrimination and identifies her race as Spanish as being a group within the definition of race in s 4 of the AD Act.
The detriment suffered is said to be the remarks which singled out the applicant and her subjection to a learning environment where racism was tolerated. No comparator has been identified by the applicant but the correct comparator may be identified at the hearing on the merits if leave is granted (CZH at [80]).
Regarding the 28 April 2023 incident, the applicant said that Ms BB asked her four times about an incident that occurred the day prior. The applicant asserts that Ms BB "knows I have a mental illness. She knows how that affects me. She said how will you not remember, this happened yesterday." The applicant said she left the class and went to disability services and saw a counsellor about this.
The alleged disability discrimination relates to the April incident. The applicant contends that she was repeatedly asked questions about an excursion. But, due to memory problems affected by depression and anxiety, she could not answer the questions.
In relation to the claim of victimisation, the applicant submits inferences could be drawn that there is a causal link between the alleged mistreatment and her making of the complaint about the two teachers' behaviour and marking of her assessments.
The applicant submits that she has put forward the elements of her complaint and it is fair and just to allow the complaint to proceed even if the evidence is perceived to be lacking, as the litigation process would allow an opportunity for further information to be gathered.
[5]
The March incident
In relation to the March incident of direct racial discrimination, the respondent submits the complaint is one of direct discrimination. However, the applicant does not allege that Ms AA would not have criticised a non-Spanish student for their grammar in same or similar circumstances. I note there is also no evidence to that effect. The applicant also does not allege that at least one of the reasons Ms AA criticised her grammar was because she was Spanish or had a characteristic that appertains generally, or is generally imputed, to Spanish people. Accordingly, the respondent submits that, while it may be the case that the applicant perceived Ms AA's actions as being publicly humiliating, exploiting and mocking, the applicant's allegations, even if accepted, do not meet the elements required to constitute direct discrimination.
To the extent the applicant claims the March incident constituted indirect discrimination, the applicant has not alleged that she was subjected to a requirement with which she was unable to comply because of her race and which a substantially higher proportion of persons who were not Spanish are able to comply. Accordingly, the respondent submits that the applicant's allegations also do not meet the elements required to constitute indirect discrimination.
To the contrary, it is apparent that at the time of the March incident, the applicant did not perceive the incident to be discrimination at all. The applicant previously complained about the March incident in an email sent to Ms Julie Law (Director of Digital and Business, Sydney Region, TAFE NSW) dated 16 June 2023. Her complaint was that "In one occasion Sally has criticized my English grammar in my first assessment in loud voice in front of the whole class that at least 3 students were laughing about my English in the class, this is so embarrassing for somebody like me. This is so disrespectful According with Privacy Act 1988 we have rights to be respected and at least if they want to criticize my English grammar, they do it with respect and in privacy." The applicant's complaint was in relation to privacy. Her feedback was that if her grammar was to be criticised, it ought to be criticised in private and respectfully.
[6]
The April incident
The applicant alleges that she was subjected to disability discrimination when Ms BB demanded that she answer questions in class about a class excursion from the day prior. She asserts that she could not recall the details of the excursion because her memory was affected by her depression and anxiety. She further asserts that she continued to be put on the spot despite telling Ms BB that she did not recall the details of the excursion.
In its response to the Complaint, the respondent provided the following context about the April incident. The applicant's class had attended an excursion to a conference. During class the next day, students were asked by Ms BB to share their experience and key takeaway from the excursion. The discussion was casual and did not form part of the assessment of the course. Other students shared their experience. When it was the applicant's turn to share her experience, she said she could not remember. Ms BB moved on to ask other students before returning to the applicant for a response. When Ms BB came back to the applicant, Ms BB and other students tried to help the applicant recall the excursion by providing some prompts about some of the presentations during the excursion. However, the applicant said she did not wish to answer, packed up and left the class.
Turning to indirect discrimination, the applicant has not alleged that she was subjected to a requirement with which she was unable to comply because of her depression or anxiety and which a substantially higher proportion of persons who did not have depression or anxiety are able to comply. The classroom discussion about the excursion was casual and did not form part of the assessment of the course.
The applicant did not dispute this. Accordingly, while the applicant was asked to participate in the discussion by sharing her experiences about the excursion, this did not constitute a requirement or condition with which the applicant was required to comply.
The applicant claims that she was unable to recall details about the excursion because of her depression and anxiety. However, there is no evidence that a substantially higher proportion of students without depression or anxiety are able to recall and share experiences about events from the day prior, in comparison with students with depression or anxiety.
In any event, even if it were accepted that the applicant was required to comply with a requirement when she was asked to share her experience about the excursion, that requirement was not unreasonable in the circumstances. It was an ordinary classroom activity in a Diploma of Marketing course that required student engagement. Further, when the applicant indicated she could not recall the details of the excursion, Ms BB moved on to ask other students before returning to the applicant for a response. Ms BB and other students also tried to help the applicant recall the excursion by providing some prompts about some of the presentations during the excursion. These facts were not disputed by the applicant. In these circumstances, it was not unreasonable to ask the applicant to participate in the classroom activity.
The respondent submits that the applicant's allegations in relation to the April incident lack substance and merit. The allegations, even at their highest, do not meet the elements required to constitute direct or indirect discrimination.
[7]
Investigation of complaint and marking of assessments
The respondent investigated several complaints made by the applicant about unfair assessment marking. Ms Law and the disability teacher consultant met with the applicant on 14 June 2023 to discuss her complaint and the outcome. In an email dated 22 June 2023 the applicant's complaints were responded to. An internal review was undertaken following further continued complaints made by the applicant.
The respondent contends that the applicant was not discriminated against nor victimised when making complaints. The complaints were treated seriously, investigated, and acted upon. This part of the complaint should also be refused.
[8]
Consideration
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 AD Act.
Section 92 provides that the President may decline the complaint if he or she is satisfied of any of the matters in that section.
Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s 93A).
Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).
Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, 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. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]-[36], [58]-[61]).
[9]
Complaint of race and disability discrimination
To prove direct discrimination on the ground of race, the applicant would have to establish that the respondent treated her less favourably than it treated or would have treated an applicant of a different race in the same or not materially different circumstances by subjecting her to some detriment in s 17 of the AD Act. The complaint is that the applicant was singled out for her grammar by the teacher.
It has been held that subjecting a student to a learning environment where racism is tolerated, failing to recognise remarks as racist, and/or to discourage them constituted a detriment within the meaning of s 17 (Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51; Director General, Department of Education and Training v ZG [2007] NSWADTAP 50). However, this is not the case here.
While the applicant has not identified a comparator, this in itself is not a reason for refusing leave, as identified in CZH.
At its highest, the applicant's allegation is that the teacher ought to have delivered constructive feedback about her grammar in a more considerate or tactful manner, such as in a private conversation. The allegation does not, however, go beyond that. Specifically, it does not amount to race discrimination. It is not fair and just for the complaint to proceed.
I find similarly in respect of the complaint of disability discrimination. The applicant was not the only student asked to share their experience of the excursion. She was not treated differently to other students in her class. Even at its highest the complaint does not reach the threshold of direct discrimination. As for indirect discrimination, the applicant does not allege that she was subjected to a requirement which she was unable to comply because of her depression or anxiety which a substantially higher proportion of persons who did not have depression or anxiety are able to comply. The applicant's participation in sharing her experience did not form part of her assessment of the course. This did not constitute a requirement or a condition with which she was required to comply. I find, the complaint is lacking in substance. It is not fair or just for leave to be granted.
[10]
Victimisation complaint
In order to establish her claim of victimisation, the applicant must establish that she was subjected to a detriment by the respondent on the ground that she had alleged that the respondent or the teacher had committed an act which would contravene the AD Act.
The applicant claims that the detriment she suffered was less favourable treatment by the respondent in not taking her complaint seriously and in the marking of her assessments.
The respondent disputes this conduct. It says that the evidence reveals that the assessments were marked according to usual practice and that it properly investigated the complaints.
I am not satisfied that the applicant could succeed in establishing that the respondent subjected her to detrimental treatment because of her complaint. In my view one cannot reasonably infer a connection between her complaint and the actions of the respondent. The evidence reveals that the respondent did investigate the complaints and took steps to resolve the complaint. I also find that the complaint of her assessments being marked unreasonably/unfairly, amounting to victimisation, is lacking in substance. It is not fair nor just for the complaint to proceed.
In these circumstances the Tribunal cannot be satisfied that there is evidence of the causation required for the applicant to make out her complaint of victimisation.
[11]
Conclusion
In relation to the complaint of discrimination in education on the ground of race and disability, it would not be fair and just to grant leave for the complaint to proceed.
The applicant has not established that it would be fair and just to grant leave for the complaint of victimisation to proceed, as it is lacking substance and a causal connection between the complaint and the conduct.
[12]
Orders
1. Leave to proceed with the complaint of discrimination on the ground of race is refused.
2. Leave to proceed with the complaint of discrimination on the ground of disability is refused.
3. Leave to proceed with the complaint of victimisation is refused.
[13]
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
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Decision last updated: 23 May 2024