Rodriguez v Technical and Further Education Commission [2024] NSWCATAD 135

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rodriguez v Technical and Further Education Commission [2024] NSWCATAD 135 Hearing dates: 15 May 2024 Date of orders: 21 May 2024 Decision date: 21 May 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: Leave is refused under s 96(1) of the Anti-Discrimination Act 1977. Catchwords: HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388 Langley v Niland [1981] 2 NSWLR 104 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Seltsam Pty Ltd v McGuiness and Another [2000] NSWCA 29 Texts Cited: None Cited Category: Principal judgment Parties: Monica Silvana Suarez Rodriguez (Applicant) Technical and Further Education Commission (Respondent) Representation: Applicant (self-represented) Minter Ellison (Respondent) File Number(s): 2024/00134290 Publication restriction: None

reasons for DECISION 1. Monica Silvana Suarez Rodriguez (the Applicant) is a former student of the Technical and Further Education Commission (the Respondent) at the TAFE NSW Ultimo campus in a Diploma of Paralegal Services course. 2. On 26 August 2023 the Applicant broke her ankle and notified TAFE NSW about her injury and that she would not be able to physically attend in-person classes. On 18 October 2023 the Applicant had a meeting with the TAFE NSW director, in relation to a complaint currently reserved before this Tribunal (2023/00461285). On 20 October 2023 the Acting Head Teacher, Ms Ellen Price, wrote to the Applicant: Hi Silvana I am sorry to hear you are still unable to travel into TAFE campus to continue your studies. 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. Maryanne Flood has been offering you one hour per week online to complete the legal unit BSBLEG521 outstanding from last term, however it appears you Have not been able to complete this unit. Maryanne will no longer be able to provide the one hour online support. As you have indicated you are unable to come back to campus, and you have missed the majority of the units for this course, the following options are available to you: 1. Defer the current Diploma of Paralegal Services until Semester 1 2024 and complete this on campus face to face 2. Withdraw from the current Diploma of Paralegal Services and re-enrol in Semester 1 2024 and complete this on campus face to face 3. Withdraw from the current Diploma of Paralegal Services and enrol in TAFE digital. Please advise which option you would prefer. 1. On 25 October 2023 Paula Howard, Disability Consultant at TAFE NSW wrote to the Applicant and offered her a disability support teacher from the Disability Unit to provide her with 2 hours per week online support during teaching weeks, noting that this was in place of attending the support group in person, and that the teacher was not from a legal background and had no specific vocational knowledge of the Diploma Paralegal course. Ms Howard also offered the following options: - Reduce program and extend end date of course (course completion would be in 2024). This would reduce the amount of classes/days you would have to attend. - Defer studies until you are able to attend face to face. - Look at TAFE Digital as this course is offered via Digital delivery and my understanding is you would have until mid-December to complete studies. 1. The Applicant was dissatisfied with the options provided to her by TAFE NSW and requested the following adjustments: 1- You could show a bit of compassion and come to my home to pick me up in my wheelchair everyday and bring me back home. You will need to carry my wheelchair in the stairs. My address is… 2- You could pay a person come to pick me up in my wheelchair to take me to the school and bring me back home. 3- You could be generous and allow your teachers to make a virtual meeting with me when they are in. 1. Despite her difficulties, the Applicant completed the Diploma of Paralegal Services course and was issued a testamur as at 18 December 2023. 2. On 15 December 2023, Anti-Discrimination New South Wales (ADNSW) received a complaint from the Applicant against the Respondent, alleging unlawful disability discrimination in education and unlawful victimisation in contravention of the Anti-Discrimination Act 1977 (NSW) (the Act) (Complaint). After investigation, on 9 April 2024 ADNSW declined the complaint pursuant to s 92(1)(a)(i) of the Act on the basis that the President was satisfied that the Complaint was lacking in substance. The President's reasons for her decision were as follows: 1) the applicant had failed to demonstrate she was treated less favourably in the course of her education because of her disability (ankle injury) than other students are likely to have been treated in circumstances that are not materially different; 2) the applicant had not established that the adjustments offered by the respondent amounted to her being forced to withdraw from her course because of her disability or because of any discrimination complaints made; 3) the applicant had not established that the respondent required her to comply with a requirement which was unreasonable having regarding to the circumstances and with which she could not comply; 4) the applicant had failed to demonstrate the respondent victimised her, that is subjected her to a detriment that she would not have otherwise been subjected to but for making a previous complaint of disability discrimination to ADNSW; and 5) the respondent provided supporting information that its action, and specifically its offers of adjustment to accommodate the applicant's disability, were reasonable having regard to the circumstances. 1. At the applicant's request, ADNSW referred the Complaint to the Tribunal pursuant to section 93A of the ADA. Pursuant to s 96(1) of the Act, leave must be granted by the Tribunal for the complaint to proceed. 2. A hearing on the question of whether leave ought to be granted by the Tribunal took place on 15 May 2024 by AVL. The Applicant provided the Tribunal with written and oral submissions. The Respondent opposed leave being granted and provided with Tribunal with written and oral submissions. 3. At the hearing I explained to the applicant the nature of a leave hearing and what was required of an application under s 96 of the Act. I explained to her what constituted disability discrimination in education and victimisation with reference to the relevant provisions of the Act. I explained that she would need to demonstrate to the Tribunal that it was just and fair in the circumstances for leave to be granted, in line with the authorities in Jones v Ekermawi [2009] NSWCA 388 (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 (Ekermawi). I explained that the Tribunal would accept the evidence she provided to the Tribunal at its highest for the purpose of determining whether leave ought to be granted. 4. For the reasons that follow, I have decided to refuse leave for the complaint to proceed.