Equal Opportunity Tribunal of New South Wales CITATION: Reyes-Gonzalez -V- Sydney Institute Of Technology [1998] NSWEOT COMPLAINANT: Raymon Reyes-Gonzalez RESPONDENT: Sydney Institute of Technology NUMBER: 4 of 1997 Judge H G Murrell S.C. ( Senior Judicial Member ) TRIBUNAL: Mr L Lau Mr O McDonald O.A.M. GROUNDS OF COMPLAINT: Disability and race discrimination in education DATES OF HEARING: 11/14/1997; 12/15/1997 DATE OF JUDGMENT: 03/06/1998 Complainant: In Person LEGAL REPRESENTATIVES: Respondent: Ms S Winters of Counsel JUDGMENT IN FAVOUR OF: Complainant Summary Background 1. The complainant was a person of Nicuraguan origin with a history of schizophrenia. From early 1994 he was student enrolled in a course run by the respondent. 2. The complainant lodged a complaint in relation to his treatment as a student. Pursuant to section 90(1), the President declined the complaint as "lacking in substance". At the complainant's request, the President referred the complaint to the Equal Opportunity Tribunal. 3. Pursuant to section 111(1) of the Anti-Discrimination Act 1977, the respondent asked the Tribunal to dismiss the complaint on the basis that it was misconceived, lacking in substance or for some other reason should be dismissed. The respondent claimed that (1) some of the allegations which the complainant wished to pursue in the Tribunal were not specifically raised in the original complaint or the President's Report, (2) most of the allegations were misconceived or lacking in substance, and (3) some of the allegations were so vaguely formulated that the respondent could not adequately respond. Held 4. While a written complaint must claim a contravention of the Act, it need not allege the relevant facts with particularity. The President's investigation will elucidate with particularity the complainant's allegations and the respondent's answer to those allegations. The Tribunal may inquire into conduct of the general classes alleged in the complaint, provided that the conduct in question preceded the complaint and was a subject of the President's investigation. 5. As to the allegations made by the complainant, the Tribunal had no jurisdiction to inquire into those allegations which were identified as grievances neither in the complaint nor in the President's Report. Some of those allegations post-dated the complaint. 6. Prior to the commencement of a hearing on the merits, it is difficult if not impossible for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it will be far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. This is particularly true in the case of complainants who lack legal representation. Figueira v St. Vincent's Hospital Ltd (Equal Opportunity Tribunal, 7 April 1997) referred to. 7. While the Tribunal doubted that at a hearing on the merits the complainant would be able to substantiate his allegations, it was not convinced that the allegations were "lacking in substance", and determined to proceed with the inquiry into those allegations in relation to which it had jurisdiction. 8. The relevant allegations were formulated with sufficient particularity to enable a response. EQUAL OPPORTUNITY TRIBUNAL NO. 6 OF 1997 RAYMON REYES-GONZALEZ -v- SYDNEY INSTITUTE OF TECHNOLOGY APPLICATION UNDER s.111 OF THE ANTI-DISCRIMINATION ACT 1977 1. BACKGROUND 1.1 Pursuant to s.111(1) of the Anti-Discrimination Act 1977 or otherwise, the Tribunal is asked to dismiss the complainant's complaint on the basis that it is misconceived, lacking in substance or for some other reason should be dismissed, or to take other appropriate action. 1.2 The complainant is of Nicuraguan origin. On several occasion in 1987/1988 he was admitted to psychiatric institutions with a diagnosis of schizophrenia. 1.3 At the beginning of 1994 the complainant enrolled in the respondent's Asia-Pacific Marketing Associate Diploma Course. 1.4 On 3 January 1995 the President of the Anti-Discrimination Board received a hand written complaint in which the complainant addressed "personal disappointing negative experience, suffered at the Sydney Institute of Technology in the Asia-Pacific Marketing Course 1994". 1.5 The President investigated the complaint. The following is an abbreviation of allegations which the President distilled in the course of his investigation (see tab 4 to the Presidents Report, exhibit A). (1) The Marketing Fundamentals subject taught by Mr Andy Armstrong required group work, and the complainant failed to gain acceptance into a group. As a consequence, the complainant failed to gain acceptance into other groups, and group membership was necessary for a number of subjects. The completion of group projects was an important part of the assessment process. In the first semester of 1994, the complainant failed a number of subjects because he was working by himself and was unable to complete group projects. (2) In the first semester of 1994 the complainant failed the Marketing Fundamentals exam because he was not allowed to bring a Spanish-English dictionary into the exam. Prior approval was required in order to bring in a dictionary, and the complainant had not been advised of the requirement for prior approval. (3) After the complainant failed a number of his first semester subjects, he requested a review of the results. There was a delay in that review, and the complainant spent the first two weeks of second semester out of class. (4) In the second semester in 1994 the complainant had difficulty attending a number of scheduled classes and experienced problems when he tried to gain assistance in addressing this difficulty. (5) In the second semester in 1994 Mr Armstrong refused to allow the complainant to join his Promotions Management class, stating that it was a prerequisite that the complainant first pass the Marketing Fundamentals subject. (6) In the second semester in 1994 the complainant failed the Marketing Fundamentals Research Methodology subject. That subject was undertaken in groups. Student groups refused to accept him, stating that he was "too difficult to understand". (7) At the end of the second semester in 1994 the complainant repeated the Marketing Fundamentals exam. This time he carried a letter of approval permitting him to use a dictionary in the exam. Despite the letter, the examiner refused to allow the complainant to bring a dictionary into the exam. (8) In the first semester of 1995 the complainant re-enrolled in the Marketing Fundamentals subject. Because of his illness he failed to gain placement in a group. He found it difficult to cope with the other students in the course. (9) On 21 March 1995 the Institute arranged a meeting to discuss the complainant's concerns. Mr Hartley was appointed to supervise the complainant. An individual tutor was arranged to assist the complainant. However, the tutor assisted the complainant on only one or two occasions. The complainant had difficulty dealing with Mr Hartley because of comments previously made by Mr Hartley to the effect that the complainant should leave the Institute if he had problems. (10) At a meeting on 2 or 3 May 1995 Ms Maria Leontis, the senior counsellor at the Institute, intimidated the complainant, telling him that he was creating difficulties for staff and students and that the Institute may have to exclude him because his illness made him unsuitable for the course. (11) In 1994 the complainant's Business Statistics teacher (who was head teacher of the Economics Faculty) subjected the complainant to racist comments and jokes. Because of the comments, the complainant withdrew from the Business Statistics course. (12) The Marketing Research teacher recommended that the complainant go back to General Studies because his English was not good enough. (13) Although the Institute was aware of the complainant's psychological disability and special needs, from the outset it refused to review his results. 1.6 Of these allegations, allegations 1, 3, 4, 5 and 6 were raised in the original complaint lodged on 3 January 1995. The original complaint also referred to the complainant's history of schizophrenia, his problem with English pronunciation and grammar, and "cultural, social and linguistic barriers". 1.7 Allegations 7 and 10 were raised in a letter dated 3 May 1995 from the complainant to the Board (tab 3, exhibit A). In addition, the letter of 3 May 1995 contained an allegation that on that day Ms Leontis said to the complainant: If you are not taking any medication you are becoming worse and it make it more difficult for us. 1.8 On 19 November 1996 the President declined the complaint under s.90(1) of the Act, finding it to be "lacking in substance". Further, the President declined that part of the complaint which alleged disability discrimination on the basis of incidents occurring prior to 8 August 1994 because those allegations did not allege a contravention of the Act. Prior to amendments commencing on 8 August 1994, the Act dealt only with disabilities of physical impairment and intellectual impairment. It was the President's view that prior to 8 August 1994 the Act did not address the disability of schizophrenia. 1.9 Pursuant to s.90(2) of the Act, the complainant requested that the matter be referred to the Equal Opportunity Tribunal. On 23 December 1996 the President referred the complaint to the Tribunal, together with a report relating to inquires made by the President into the complaint. 1.10 In the Tribunal the complainant filed a lengthy document entitled "Statements of Evidence and Points of Claim" (exhibit B). This document refers to some of the matters raised with the Board. It contains additional general allegations, eg. at 13 there is an allegation that "harassing, hostilities and vilification were committed against the 'complainant' health conditions". 1.11 At the request of the Tribunal constituted to hear the respondent's s.111(1) application, the complainant filed a document dated 11 December 1997, which sets out the allegations which he wishes to pursue. The allegations in the document dated 11 December 1997 can be summarised as follows. (1) In about May 1994 Mr Armstrong ridiculed the complainant, inter alia saying "Raymon, could you please speak English?" Thereafter, Mr Armstrong made an adverse report to the Senior Head Teacher regarding the complainant's level of comprehension and poor class participation. (2) In about September 1994, during a discussion with the complainant concerning the disparity between services provided for self-funding international students and local students of non-English speaking background, Mr Hartley became angry and said: We don't know how we can make you happy, because, although you are unemployed you had the opportunity to get a place in this course. Even so, you make complaints after all. Tell me how can we help you? (3) In June 1995 Ms Maria Leontios said to the complainant: People suffering from mental illness always blame the society for their misfortune ….. Unfortunately we can not give you any support without recent medical certificate, therefore, we need a new medical report from your psychiatrist. (4) In the first semester of 1997 the complainant's Austudy benefit was suspended because college staff reported that the complainant was not enrolled. (5) In the first semester of 1995 Mr Hartley commented to the complainant: Giving your illness, you are not suitable for this course. Why don't you give up and consider to do something more appropriate to your capabilities? (6) In the second semester of 1995 Mr Musgrove, the lecturer in Marketing Research and Marketing Information, said to the complainant: Raymon, I would recommend you to go back to General Studies. They probably would help you to improve your English communication skills. I am afraid that your accent is too difficult to understand for me and your student colleague. (7) In semesters one and two of 1994 the complainant's request to use a Spanish-English dictionary in exams was denied. In semester one the denial was based on the complainant's failure to obtain a letter of authority. In semester two it was based on "special rules" that a dictionary was not to be used in the Marketing Fundamentals exam. (8) In the first semester of 1997 the complainant had a dispute with Mr Kelly (the Marketing Ethics teacher) and Mr Kennet (the Sales Management teacher). The complainant's conduct was considered to be misbehaviour. An issue arose as to whether the complainant should be expelled for his conduct. 1.12 In evidence given on 14 November 1997, the complainant referred to a recent incident involving a consultant. However, the document dated 11 December 1997 makes no reference to this incident. It does not appear to form the basis of an additional allegation. 2. RESPONDENT'S CONTENTIONS 2.1 On the s.111(1) application the respondent advances the following contentions. (1) Some of the allegations which the complainant now wishes to pursue were not specifically raised in the original complaint. Consequently, they cannot be raised before the Tribunal. Alternatively, some of the allegations are neither a specific subject of the original complaint nor a subject of the President's Report. Consequently, they cannot be raised before the Tribunal. (2) Most of the complainant's allegations could not possibly amount to an allegation of race or disability discrimination and should not be considered by the Tribunal because they are misconceived or lacking in substance. (3) Some of the complainant's allegations are so vaguely formulated that the respondent cannot adequately respond and should not be required to do so. 3. ALLEGATIONS NOT WITHIN THE ORIGINAL COMPLAINT AND/OR NOT WITHIN THE PRESIDENT'S REPORT 3.1 Relevantly, s.87 of the Act defines "complaint" as a " complaint…lodged under section 88 ". Section 88 enables " a complaint in writing in respect of any contravention of this Act or the regulations " to be lodged with the President. 3.2 Section 89 requires the President to "investigate each complaint lodged with the President under section 88 ". 3.3 Section 90(1) provides: Where, at any stage of the President's investigation of a complaint, the President is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, the President may, by notification in writing addressed to the complainant, decline to entertain the complaint. 3.4 When notified under s.90(1), a complainant may require the President to refer the complaint to the Tribunal. Pursuant to s.91(2), on receipt of such a requirement the President must refer the complaint to the Tribunal " together with a report relating to any inquires made by the President into the complaint ". 3.5 Section 96 requires that the Tribunal hold an inquiry into each complaint referred to it. 3.6 Section 111(1) provides: Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. 3.7 Where the Tribunal lacks jurisdiction because a matter referred to the Tribunal is not a proper complaint, the Tribunal should decline to inquire into the "complaint". 3.8 The Tribunal's jurisdiction to inquire into a complaint depends upon whether there is a written complaint "in respect of any contravention of (the) Act or the regulations ". The expression "in respect of" depends very much upon the context in which it is found. Generally, the expression has the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer : Trustees Executors and Agency Co. Ltd v Reilly (1941) VR 110 at 111, State Government Insurance Office (Queensland) v Rees (1979) 144 CLR 549 per Mason J at 561, The Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 per Wilson and Gauldron JJ at 646-647. See also Law Society of New South Wales v Bruce (1996) 40 NSWLR 77 at 84, where the phrase "in relation to" is discussed. 3.9 Consequently, while a written complaint must enable the identification of an alleged contravention of the Act, it need not allege the relevant facts with particularity : Langley v Niland (1981) 2 NSWLR 104 at 107-108. A written complaint does not serve the purposes of a formal pleading. Rather, the purpose of a written complaint is to identify (directly or indirectly) an alleged contravention of the Act or the regulation. The President's jurisdiction to investigate and the Tribunal's jurisdiction to hold an inquiry depend upon the claimed occurrence of what amounts to a contravention of the Act or the regulations, and that claim must be apparent on the face of the written complaint: Nestle Australia Ltd v The President and Members of the Equal Opportunity Board and Ors (1990) EOC 92-281, State Electricity Commission of Victoria v Rabal and Ors (1997) EOC 92-875 . 3.10 The President's investigation will elucidate with particularity a complainant's allegations and the respondent's answer to those allegations. Consequently, for practical purposes it is not necessary that a complaint contain a statement of facts or particulars showing how the claim arises. It would be quite contrary to the purposes of the Act if a complainant (who may be a legally unassisted person of non-English speaking background) was to be restricted by an inadequacy in the terms of the complaint, when the gravamen of the complaint was fairly clear and the details could be elucidated by the President in the course of his or her investigation. 3.11 In this case, there are two documents constituting the complaint, or two complaints, ie the document lodged on 3 January 1995 and the document dated 3 May 1995. It is plain from these documents (particularly the first document) that the complainant alleges discrimination in eduction on the grounds of disability and race. The President had no difficulty identifying those alleged contraventions. 3.12 In pursuing his complaint (or complaints), the complainant should not be limited to the particular allegations of fact contained in the document lodged on 3 January 1995 and the document dated 3 May 1995. The complainant should be able to rely upon particular conduct of the general classes alleged in the two documents, provided that the particular conduct preceded the complaint/s and was a subject of the President's investigation. Obviously, to fall within a complaint particular conduct said to amount to a contravention must predate the complaint. 3.13 The tribunal has no jurisdiction to inquire into allegations (4), (6) and (8) in the complainant's letter of 11 December 1997 as each of these matters postdates the letter of 3 May 1995. It is not clear whether allegation (5) postdates the letter of 3 May 1995. Allegation (3) appears to postdate the letter of 3 May 1995, but the position is uncertain because the incident may be part of the incident of 2 or 3 May, which prompted the letter of 3 May 1995. 3.14 Allegation (1) refers to a statement and a report, which were identified as grievances neither in the complaint documents nor in the President's Report. The Tribunal lacks jurisdiction to inquire into this allegation. 3.15 At the inquiry into other allegations, evidence regarding allegations (1), (4), (6) and (8) (and possibly (3) and (5)) could only be adduced if it was relevant to the inquiry into the other allegations. 4. ALLEGATIONS SAID TO BE MISCONCEIVED OR LACKING IN SUBSTANCE 4.1 Essentially, the respondent's contention is that the complainant's allegations are "lacking in substance". This is an assertion that there are no factual bases for the allegations, or that the allegations lack merit, rather than a contention concerning jurisdiction: Langley v Niland at 107. 4.2 In Figueira v St. Vincent's Hospital Ltd (Equal Opportunity Tribunal, 7 April 1997) the Tribunal determined that an "inquiry" did not commence until a hearing on the merits commenced before the particular Tribunal constituted for the purpose of determining the merits of the complaint. As s.111(1) enabled dismissal "at any stage of an inquiry", s111(1) could not be invoked prior to the commencement of a hearing into the merits. For the reasons which follow, it is not necessary to determine whether the Tribunal should follow Figueira . 4.3 Any jurisdiction to terminate an action summarily must be employed sparingly, requires the exercise of exceptional caution, and should be exercised only in a clear case: General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 . The need for caution is particularly pressing in a jurisdiction which is not wholly adversarial (the Tribunal has an obligation to inquire, and may inform itself) and in which complainants are frequently unrepresented or disadvantaged because of a lack of English or for some other reason. 4.4 In Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 , the Human Rights and Equal Opportunity Commission commenced an inquiry, received some oral and documentary evidence, and then determined that the complaint was misconceived and therefore lacking in substance in that the evidence held out no real possibility of success for the complainant in the proceedings. At 98, 900 Sir Ronald Wilson (the President) stated that a claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily be found to be "lacking in substance". 4.5 In State Electricity Commission of Victoria v Rabal and Ors (1997) EOC 92-875 Ormiston JA at (77,122) and Phillips JA (at 77,132) distinguished Assal on the basis that in Assal the HREOC had commenced an inquiry into the substance of the complaint, whereas in Rabal the Equal Opportunity Board was considering an application for dismissal made prior to the commence of a hearing on the merits. 4.6 Prior to the commencement of a hearing of the merits, it is difficult if not impossible for the Tribunal to determine whether there may be substance to a complainant's allegations. The extent of the Tribunal's ability to determine whether there may be substance to a complainant's allegations will depend upon the stage which has been reached in any hearing on the merits. 4.7 Where a complainant concedes that the whole of his or her case is documented, it may be possible for the Tribunal to examine the documentation on a pre-hearing basis in order to determine whether the documentation is capable of supporting the allegations in the complaint. However, it will generally be far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. This is particularly true in the case of complainants who lack legal representation. 4.8 Allegations (2), (3) and (5) each allege a statement said to be racist. Racist statements made on a respondent's premises may constitute racial discrimination for which the respondent is vicariously liable: Leher v Barry James Mobile Cranes Pty Ltd (1994) EOC 92-585 , and see also Sekhon v Ballarat University College (1993) EOC 92-551 . Prima facie, it is difficult to see the statements in question as racist. However, it is possible that when viewed in context one or more of the statements might be found to be discriminatory. 4.9 Similarly, in relation to allegation (7) when the alleged conduct is understood in context it is possible that discrimination will be disclosed. 4.10 Consequently, in relation to allegations (2), (3), (5) and (7) in the letter of 11 December 1997, at this stage the Tribunal is not convinced that the allegations are "lacking in substance" and (assuming that it has the jurisdiction to do so) is not prepared to dismiss those aspects of the complaint. 5. FORMULATION OF ALLEGATIONS 5.1 At the request of the Tribunal, the complainant clarified the allegations which he wishes to pursue and reduced them to writing in the document dated 11 December 1997. In the Tribunal's view, allegations (2), (3), (5) and (7) are now formulated with sufficient particularity to enable a response. 6. SUMMARY 6.1 The Tribunal has no jurisdiction to inquire into allegations (4), (6) and (8) in the complainant's letter of 11 December 1997. Subject to confirming that the incidents alleged in paragraphs (3) and (5) of the letter of 11 December 1997 predate the complaint letter of 3 May 1995, the Tribunal will proceed with the inquiry into those allegations, as well as the incidents alleged in paragraphs (2) and (7). 6.2 The matter is referred to the directions list. 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.