CITATION: Chi v Technical and Further Education Commission [2007] NSWADT 98 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Johny Chi RESPONDENT Technical and Further Education Commission FILE NUMBER: 061089 HEARING DATES: 14 February 2007 SUBMISSIONS CLOSED: 14 February 2007 DATE OF DECISION: 1 May 2007 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Technical and Further Education Commission Act 1990 CASES CITED: New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153 Xu v Sydney West Area Health Service [2006] NSWADT 3 APPLICANT K Edwards, counsel REPRESENTATION: RESPONDENT T Golding, solicitor ORDERS: 1. Slojanovic incident: leave is granted in relation to a complaint of victimisation; 2. Bennett incident: leave is granted in relation to a complaint of disability discrimination; 3. Leave is refused in relation to all other complaints. REASONS FOR DECISION Introduction 1 Mr Chi is asking for the Tribunal's permission to go ahead with complaints of race and disability discrimination and victimisation against the Technical and Further Education Commission (TAFE). The President of the Anti-Discrimination Board (ADB) declined the complaints as lacking in substance. When the President declines a complaint as lacking in substance, s 96 of the Anti-Discrimination Act 1977 (AD Act) requires the applicant to obtain the Tribunal's permission before the complaints can go ahead. Parties 2 Mr Chi initially named three individual teachers and/or managers as the respondents to his complaint. When the President of the ADB referred the complaint to the Tribunal, he named the NSW Department of Education and Training as the respondent. If Mr Chi is alleging that an "educational authority" discriminated against him on the ground of his race (s 17) and/or disability (s 49L), then the educational authority concerned is the correct respondent. "Educational authority" is defined in s 4 to mean "a person or body administering a school, college, university or other institution at which education or training is provided". Despite the fact that Mr Chi lodged his complaint against three teachers and/or managers and said that they should be personally liable for their "bad behaviours", s 17 and 49L only make the educational authority liable for any breach of those provisions. 3 While neither party made any submissions on this point, the "educational authority" in these proceedings appears to be the TAFE Commission. The TAFE Commission is divided into 10 institutes including the Sydney Institute which incorporates campuses at Ultimo and Randwick where Mr Chi was studying for a Diploma of Website Development. The TAFE Commission is a body corporate established by the Technical and Further Education Commission Act 1990 to provide technical and further education services: s 5. A difficulty in this case, which was not addressed by either party, is that the TAFE Commission cannot employ any staff: s 5. Staff may be employed under the Public Sector Employment and Management Act 2002 to enable the TAFE Commission to carry out its functions: s 4B. Consequently, while the TAFE Commission may be an "educational authority" as defined in the AD Act, it is arguable that it is not vicariously liable for discriminatory acts of staff because it is not the legal entity which employs those staff. For the purposes of these proceedings, I have named the TAFE Commission as the respondent. I have not taken into account any difficulty Mr Chi may ultimately have in establishing that the TAFE Commission is liable for the conduct of staff employed under the Public Sector Employment and Management Act 2002. Period of complaint 4 Mr Chi lodged his complaint with the ADB on 4 October 2005. Section 89B(2) of the AD Act allows the President to decline a complaint if the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint. The President did decline that part of Mr Chi's complaint that occurred before 4 October 2004. This Tribunal has no power to alter that decision: New South Wales Teachers Federation v President, Anti-Discrimination Board & anor [2005] NSWADT 153. Consequently, the only parts of Mr Chi's complaints that I may consider are those allegedly unlawful acts which occurred after 4 October 2004. I have included reference to events before 4 October 2004 by way of background only. Approach to leave applications 5 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under s 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]: 17 The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. 6 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. Background 7 Mr Chi enrolled in a Diploma of Website Development at Ultimo TAFE in 2004. According to TAFE, that course consists of 20 core modules and two electives and is normally completed by a student studying full time over two semesters. Mr Chi says that as a result of previous discrimination in employment he suffers from depression and anxiety and is undergoing psychiatric treatment. I have accepted, for the purpose of these proceedings, that he has a disability as defined in s 4 of the AD Act. 8 Mr Chi claimed he was refused extra time to access the computer at TAFE and failed his mid term and final exams for the first semester of 2004. When he attended class at the beginning of the second semester of 2004, Mr Chi says that Ms Siljanovic came to the class and told him that he should not be in that class. After speaking with the counsellor at TAFE, Mr Chi decided to continue his studies at Randwick TAFE. However, he needed to repeat a subject at Ultimo TAFE. He says that the tutor who was allocated to teach that subject (Dean Nguyen) did not answer his questions and made comments such as, "That's not important, you don't need to know that." Mr Chi also says that Mr Nguyen told him not to come to his class for the exam. Mr Chi makes no complaint in relation to these interactions with Mr Nguyen. In any case, they occurred prior to 4 October 2004, so they cannot form part of Mr Chi's complaint. 9 Mr Chi also complained by letter dated 14 July 2004 (received on 2 August 2004) of not being taught properly and being unfairly marked in the subject of eCommerce. He also said that his eCommerce teacher during first semester, Ms McHugh, had discriminated against him and harassed him. He says she bullied him and singled him out in class by saying things like: "Johny if you cannot read English you should be back in English class." "Johny I do not want you to talk to other students, you have to do this yourself" 10 As Ms McHugh was Mr Chi's teacher in the first semester of 2004 his interactions with her apparently occurred prior to 4 October 2004. There was no instance where Mr Chi alleged that Ms McHugh had discriminated against or harassed him after 4 October 2004. As the President of the ADB only accepted Mr Chi's complaints which occurred after 4 October 2004, the interactions with Ms McHugh have no prospect of success and I refuse leave to proceed in relation to them. Siljanovic incidents 11 Mr Chi went to the Ultimo campus of TAFE to enrol in February 2005 and says that Ms Siljanovic told him that he didn't need to study the subject of web services because it was an elective. It is useful to set out the alleged conversation between Mr Chi and Ms Siljanovic (Ms S) as recorded in his complaint to the ADB: Ms S: Johny, you don't need to study web service, that is an elective. Mr Chi: I heard Dean said to whole class at end of last semester, XML and web service are very useful and important subjects to learn in the next semester. Also, why is it an elective for me only and not for the other students? Ms S: Johny you know why I did allow you to study, because you complained about Ms Debra McHugh before. Mr Chi: I have done nothing wrong and have no personal problems with Ms Debra McHugh. I came to the TAFE only to learn and obtain professional skills and confidence for a future job. Ms S: I would organise a meeting with you and deputy director tomorrow and discuss this matter. 12 According to TAFE the "web service" subject is module 3765A Build a Doc. Extensible Markup Lan (XML). That would explain the reference to that term in Mr Chi's report of his conversation with Ms Siljanovic. Mr Chi's legal representative has interpreted this conversation as being evidence that Ms Siljanovic told Mr Chi that the decision to deny him entry into two subjects (webservice and eCommerce B) was due to his previous complaint about Ms McHugh. While that is not clear from the reported version of the conversation, other documents in the President's Report (for example, a letter to Mr Anthony Roberts at p 53) suggest that that was what Mr Chi was alleging. 13 TAFE's response to Mr Chi's allegations that they had refused to allow him to enrol in the web service subject and eCommerce B was that they did not reject his application for enrolment. TAFE said that Mr Chi failed three modules at the end of his first semester in 2004. He re-sat those exams and appealed against his marks. The original marks were upheld. Ms Siljanovic says she then formulated an individual program of study for Mr Chi during the second semester of 2004 based on the repeat modules that he needed to complete plus the modules that he could commence from the second stage of the course. Mr Chi was not satisfied with that program and, in an effort to complete the course more quickly, he transferred his enrolment to Randwick College. While Mr Chi successfully completed the three modules he undertook at Ultimo College in Semester 2 of 2004, he did not pass the modules he undertook at Randwick. According to TAFE, an additional 7 hours per week access to the computer lab was provided to Mr Chi from 13 May 2004 until the end of the first semester. Additional lab time was also provided during the first semester of 2005. 14 In semester 1 of 2005 Mr Chi requested that he be enrolled in six subjects. According to TAFE, two of the elective subjects were not required for Mr Chi to complete the course and would not have contributed to the Diploma. Because Mr Chi had been keen to complete the course in a timely manner, and studying the extra subjects would prolong completion of the Diploma, Ms Siljanovic suggested a meeting with the Deputy Director, Ms Bennett. On 7 February 2005 TAFE sent a letter to Mr Chi stating that: In semester 1 2005 you negotiated with the Head Teacher at Ultimo, Ms Diane Siljanovic to enrol in three modules which you studied in 2004. You have already successfully passed 3757F. Your results for 3757B and 3757H are pending and will be finalised this week by Randwick College. When you came to enrol in these modules you also demanded to be enrolled in an additional three elective modules (3757B, 3765A, 3757AB) which will not contribute towards your course completion. You have already passed more than the required number of elective modules to course complete. When you met with Ms Siljanovic and myself on Thursday 3 February we discussed the possibility of you completing the XML training you desire in module number 3756Y. However, your transcript shows that you have already passed this module at Crows Nest in semester 2, 2003. The TAFE NSW Revision of Student Selection Policy (ESQ/00022) states that "In general, students should not be re-enrolled in a course or module which they have already completed." (8.1.1,v). Despite this, you may be permitted to enrol in the modules for which you have results pending (3757B and 3757H). In addition you may enrol in module 3756Y, Complex Mark-up Language Documents. Disability discrimination 15 Direct disability discrimination. Mr Chi alleged that the Siljanovic incident constitutes direct disability discrimination contrary to s 49L(2)(a) and victimisation contrary to s 50 of the AD Act. Section 49L states that: (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. 16 Unjustifiable hardship . Because Mr Chi's complaint does not relate to refusing him admission as a student or expelling him, the exception in s 49L(4) does not arise. In those circumstances there is no need to ask whether Mr Chi required services or facilities not required by other people who did not have his disability or whether the provision of such services or facilities would impose unjustifiable hardship on TAFE. 17 Elements of disability discrimination. In order to prove that he has been discriminated against on the ground of his disability, Mr Chi needs to prove that: a) TAFE limited his access to a benefit or subjected him to a detriment; b) that treatment was less favourable than, in the same or similar circumstances, TAFE treated or would have treated a person who did not have Mr Chi's disability; c) that one of the reasons for that treatment was Mr Chi's disability. 18 Access to a benefit or being subjected to a detriment. The alleged detriment to which Mr Chi says he has been subjected is the refusal of TAFE to allow him to enrol in two subjects: 3765A and 3765AB. TAFE allowed him to enrol in the advanced eCommerce modules in semester 1 2005, although those modules were not necessary for him to complete the course. (See p 34 of the President's Report). In the letter of 7 February 2005 (quoted above at [15]) Ms Bennett told Mr Chi that he may enrol in the two subjects for which his results were pending (3757B and 3757H). Ms Bennett also told Mr Chi in that letter that he could enrol in module 3756Y to complete the XML training he was requesting. According to TAFE, Mr Chi decided to undertake the eCommerce B modules at Ultimo College in first semester of 2005 and declined to enter in module 3756Y. Consequently the only detriment (or limitation to his access to a benefit) was that he was not permitted to enrol in 3765A and 3765AB. Mr Chi does not appear to appreciate that students are not entitled to enrol in any subject of their choosing. In my view, Mr Chi would have great difficulty satisfying a Tribunal hearing this complaint that TAFE's refusal to allow him to enrol in courses which he had already completed or which were not necessary for him to obtain his Diploma, comes within the terms of s 49L(2)(a). 19 Less favourable treatment. Even if Mr Chi did satisfy a Tribunal hearing his complaint that the refusal was a "detriment" or the denial of access to a benefit, he would still have to prove that that treatment was less favourable than, in the same or similar circumstances, TAFE treated or would have treated a person who did not have Mr Chi's disability. While Mr Chi complained that other students were permitted to enrol in the elective subjects that he wanted to study, there was no information suggesting that their circumstances were the same, or not materially different, from Mr Chi's circumstances. This makes it unlikely that Mr Chi could satisfy the Tribunal that TAFE treated him less favourably than it treated other students. 20 On the ground of disability. In addition, the Tribunal would have to be satisfied that at least one of the reasons for that treatment was Mr Chi's disability. Mr Chi was permitted to enrol in subjects for which his results were pending as well as subjects that would have given him the opportunity to complete the XML training he was requesting. In my view it is entirely credible that TAFE refused Mr Chi permission to enrol in two elective subjects because they were not required for him to complete his Diploma. I cannot see how Mr Chi's disability could have played any role in that decision. In my view, Mr Chi has no reasonable prospect of succeeding in a complaint of direct disability discrimination in relation to the Siljanovic incident and leave to appeal in relation to that matter is refused. Victimisation 21 Victimisation provisions. Mr Chi also alleged, in the alternative, that the Siljanovic incidents constitute a breach of the victimisation provisions of the AD Act. Section 50 states that: (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. 22 In order to establish a breach of s 50, Mr Chi would need to prove that: (a) he alleged that a person did something which would amount to a contravention of the AD Act ; and (b) a person subjected him to a detriment on the ground that he made such an allegation. 23 Mr Chi's representative alleged that the trigger for the refusal to allow him to enrol in the two subjects was the fact that he complained about Ms McHugh. Mr Chi alleged that Ms McHugh had discriminated against him and harassed him in a letter dated 14 July 2004 (received on 2 August 2004). There is an issue as to whether or not the allegations in that letter would amount to a contravention of the AD Act . Even if they do, Mr Chi would have to establish that Ms Siljanovic's treatment of him in February 2005, some six months later, was on the ground that he had complained about Ms McHugh's conduct. According to Mr Chi, there was direct evidence that this was the case. He says that Ms Siljanovic told him that the reason she would not allow him to study web service was because he had complained about Ms McHugh. Ms McHugh was teaching that subject in the first semester of 2005. If Mr Chi establishes that this conversation took place, then his complaint of victimisation has reasonable prospects of success. In those circumstances, I grant leave for that complaint to proceed. Bennett incidents 24 After the alleged conversation between Mr Chi and Ms Siljanovic about whether or not Mr Chi should enrol in the two elective subjects, Ms Siljanovic said that she would organise a meeting with Mr Chi and the Deputy Director, Ms Bennett. Ms Bennett confirmed Ms Siljanovic's advice in a conversation with Mr Chi. Mr Chi objected saying that his classmates were studying web service and he wanted to study it as well. Mr Chi said Ms Bennett called the security guard. Mr Chi says that Ms Bennett instructed the security guards to close the door to her office and not allow him to leave. Mr Chi said he panicked, opened the door and ran down the emergency stairs. Mr Chi says that Ms Bennett ordered the security officers to chase him. Mr Chi says he went to the police station and reported the incident to the police. TAFE disputes this version of events. Mr Chi says that this incident constitutes both discrimination on the ground of disability and victimisation. Disability discrimination 25 In order to establish that he has been discriminated against on the ground of his disability in breach of s 49L(2)(a), Mr Chi needs to prove that: a) TAFE limited his access to a benefit or subjected him to a detriment; b) that treatment was less favourable than, in the same or similar circumstances, TAFE treated or would have treated a person who did not have Mr Chi's disability; and c) that one of the reasons for that treatment was Mr Chi's disability. 26 Detriment. The alleged detriment to which Mr Chi says he has been subjected is the calling of security guards in response to his request to discuss his alleged exclusion from two subjects. It is arguable that this is a detriment within the meaning of that term in s 49L(2)(a) of the AD Act . 27 Less favourable treatment on the ground of disability. Mr Chi says that Ms Bennett knew that he was receiving psychiatric treatment and that she would not have treated a person who did not have his disability in the same way. Furthermore, Mr Chi says that one of the reasons for that treatment was his disability. It is difficult to assess to the prospects of success of this complaint without hearing all the evidence as to what occurred at that meeting. If the meeting commenced without incident and it was some conduct on Mr Chi's part that prompted Ms Bennett to call security, then this complaint is unlikely to succeed. (See Purvis v NSW (2003) 217 CLR 92 at 160-1.) On the other hand if Mr Chi can establish that Ms Bennett would not have called security if she did not think he was suffering from anxiety and depression, then the complaint may succeed. In those circumstances, I grant leave for this complaint to proceed. Victimisation 28 In order to establish a breach of s 50 in relation to the Bennett incident, Mr Chi would need to prove that: (a) he alleged that a person has done something which would amount to a contravention of this Act; and (b) a person subjected him to a detriment on the ground that he made such an allegation. 29 Presumably the allegation which would amount to a contravention of the AD Act is Mr Chi's letter of complaint dated 14 July 2004 alleging that Ms McHugh had discriminated against him and harassed him. As I have said, there is an issue as to whether or not the allegations in that letter would amount to a contravention of the Act. Even if they do, Mr Chi would have to establish that Ms Bennett's treatment of him in February 2005, some six months later, was on the ground that he had complained about Ms McHugh's conduct. Mr Chi submitted that in the absence of any reasonable explanation for Ms Bennett's conduct, the treatment amounts to victimisation. 30 Nothing Mr Chi has alleged suggests that there is any link whatsoever between Ms Bennett's conduct in February 2005 and the fact that he complained about Ms McHugh in July 2004. In my view, Mr Chi has no reasonable prospect of succeeding in a complaint of victimisation in relation to the Bennett incident and leave to appeal in relation to that matter is refused. Orders 1. Slojanovic incident : leave is granted in relation to a complaint of victimisation. 2. Bennett incident: leave is granted in relation to a complaint of disability discrimination. 3. Leave is refused in relation to all other complaints. Directions 31 The following directions are made in relation to this matter: 1. Any party wishing to issue a summons to produce documents should apply to do so within 14 days of the date of these reasons. 2. Applicant to file and serve any evidence on which he intends to rely within 6 weeks of the date of these reasons. 3. Respondent to file and serve any evidence on which it intends to rely within 4 weeks of receiving that Applicant's evidence. 4. Matter is listed for a case conference on 18 July 2007 at 2.15 pm. 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.