Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Obieta v Australian College of Professionals Pty Ltd [2012] NSWADT 208 Hearing dates: 8 August 2012 Decision date: 12 October 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The complaint of sex discrimination is dismissed because it does not disclose a contravention of the Anti-Discrimination Act 1977. 2. The complaint of victimisation is dismissed in respect of allegations that: a) the respondent cancelled the two speakers from the real estate and business broking industry who were scheduled to speak to the class on 16 December 2010 b) the College cancelled the graduation for 17 December 2010 3. The application to dismiss the complaint of victimisation is refused in respect of the remaining allegations. 4. The application to dismiss the complaint of race discrimination is refused. 5. The matter is listed for case conference on 24 October 2012 at 2.15 pm for 30 minutes. Catchwords: EQUAL OPPORTUNITY - summary dismissal - accept applicant's evidence at its highest - extreme caution necessary - complaints of sex and race discrimination and victimisation - lacking in substance and/or no contravention of the Anti-Discrimination Act 1977 Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Education Reform Act 1990 (repealed) Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Technical and Further Education Commission Act 1990 Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Metwally v University of Wollongong (1984) EOC 92-030 O'Callaghan v Loder [1983] 3 NSWLR 89 O'Sullivan v Pehm [2010] NSWADT 57 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Category: Principal judgment Parties: Lina Obieta (Applicant) Australian College of Professionals (Respondent) Representation: C P O'Neill (Respondent) L Obieta (Applicant in person) Wotton Kearney Insurance Lawyers (Respondent) File Number(s): 121008 REASONS FOR DECISION Introduction 1The Australian College of Professionals Pty Ltd (the College) has applied for complaints of discrimination and victimisation by a student, Ms Obieta, to be summarily dismissed. The Tribunal may dismiss a complaint when, even if the complainant's version of events is accepted, the complaint is lacking in substance. A complaint may also be summarily dismissed if the alleged conduct would not constitute a breach of the Anti-Discrimination Act 1977 (AD Act). 2Applying the tests in the AD Act, I have decided to dismiss Ms Obieta's complaints of sex discrimination against the Australian College of Professionals. I have decided not to dismiss parts of her complaint of victimisation. I have decided not to dismiss her complaint of race discrimination. Background 3Ms Obieta enrolled in Certificate IV in Property Services (Real Estate) and Certificate IV in Property Services (Business Broking) courses with the Australian College of Professionals Pty Ltd (the College). Those qualifications are required before a person can obtain a real estate agent's licence and a business broking agent's licence respectively. The courses ran from 11 October 2010 to 17 December 2010. 4Ms Obieta alleges that she was discriminated against on the ground of her race (Filipino) and her sex while studying with the College. The alleged conduct relates to the way two trainers, Mr Compton and Mr Sullivan, treated her. She alleges that they made derogatory comments or treated her in an unfair way. Ms Obieta also alleged that she was victimised after she complained. Principles of summary dismissal 5At any stage of the proceedings, the Tribunal may dismiss the whole or any part of a complaint on the ground that: (1) it is frivolous, vexatious, misconceived or lacking in substance; (2) the alleged conduct, if proven, would not disclose a contravention of the AD Act: s 102 and s 92(1)(a)(i) and (ii). 6A complaint is frivolous or vexatious if it constitutes an abuse of process. It is misconceived or lacking in substance if it involves an untenable proposition of law or fact or involves a misunderstanding of legal principle: State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 109. 7The Tribunal has adopted a careful approach to the exercise of its summary dismissal power, emphasising that it should only be exercised with exceptional caution where the circumstances clearly warrant such action: O'Sullivan v Pehm [2010] NSWADT 57 at [51]. In determining whether a complaint should be dismissed, the evidence of the applicant should be taken at its highest: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [34]. That means that everything that Ms Obieta has alleged happened is taken to have happened. 8I will deal with the applications to dismiss the race discrimination complaint, the sex discrimination complaint and the victimisation complaint in that order. Complaint of race discrimination Legal principles 9Ms Obieta alleges that the College has breached the Racial Discrimination Act 1975 (Cth). This Tribunal has no power to make a finding that any conduct is in breach of that Act. 10The Tribunal does have power to make findings about allegations of breaches of the AD Act. It is unlawful under that Act for an educational authority to discriminate against a person on the ground of race by denying a student access, or limiting a student's access, to any benefit provided by the educational authority or by subjecting the student to any other detriment: AD Act, s 17(2). It is also unlawful for a service provider to discriminate against a person on the ground of race by refusing to provide the person with services or in the terms on which the other person is provided with services: AD Act, s 19. For the purpose of these proceedings, the College accepts that it is an educational authority and is subject to s 17 of the AD Act. 11The complaint, as referred to the Tribunal by the President of the Anti-Discrimination Board, named the College as the only respondent. In the complaint itself, Ms Obieta named two trainers, Mr Compton and Mr Sullivan, as respondents as well as Ms Sullivan, the principal of the College. Ms Obieta applied to the Tribunal for these individuals to be joined as parties: Administrative Decisions Tribunal Act 1997, s 67(4). I have decided not to join them to the complaint of race discrimination because only an educational authority or service provider is liable for discrimination under s 17 and 19. These individuals do not meet either of those descriptions. The College is vicariously liable for the conduct of its employees or agents but employees or agents, such as the three trainers, are not personally liable under s 17 or 19: AD Act, s 52. 12I accept that Ms Obieta's national origin is Filipino and that that is a 'race' as defined in s 4 of the AD Act. 13Race discrimination is defined in s 7. Ms Obieta relied on 'direct' discrimination: s 7(1)(a). Although she mentioned 'segregation' and 'indirect discrimination' at various times in her written and oral submissions, the facts as alleged do not come within either of those parts of the definition of discrimination. 14In order to substantiate a complaint of direct race discrimination in breach of s 17 or s 19 of the AD Act, Ms Obieta would have to prove that: (1) her access to a benefit provided by the College has been denied or limited, she has been subjected to a detriment, the College's services have been refused or she has been provided with educational services on unfavourable terms (the treatment); (2) this treatment is less favourable than the way the College treated or would have treated a person not of Ms Obieta's race (differential treatment); (3) at least one of the reasons for the treatment was Ms Obieta's race (causation). The treatment 15The conduct which Ms Obieta says constitutes race discrimination is set out in detail in her complaint and in her affidavit. Each of these incidents is also said to constitute sex discrimination. These allegations are all comments or conduct that occurred during or after class. Mr Compton provided training to the class on 29 November 2010. The allegations involving Mr Sullivan occurred on 3 and 9 December 2010. (1)Incident 1: When taking the class on 29 November 2010, Mr Compton first asked students to introduce themselves. Ms Obieta told the class about her background. Mr Compton then conducted an 'in class' assessment. Mr Compton asked the entire class to stand up. He then asked questions and whoever gave the correct answer first could sit down. Ms Obieta says that regardless of whether the answers were right or wrong, Mr Compton allowed male and female students who answered a question to sit down. Although Ms Obieta gave correct answers, Mr Compton did not acknowledge that they were correct. Ms Obieta was left standing with the "bully male students". All male students except the leader of the "bully males" were told to sit down and Ms Obieta was left standing with the leader of the male bullies. Ms Obieta felt that something was not right and that Mr Compton had intentionally left her standing. Ms Obieta then sat down without being told she could do so. (2)Incident 2: On 3 December 2010, Ms Obieta asked Mr Sullivan about the balance in the trust ledger, saying, "The balance is debit?" Mr Sullivan responded by saying, "Why don't you stand up here and you teach?" (3)Incident 3: On 3 December 2010, Mr Sullivan persistently demanded to see Ms Obieta's work even though she told him that she had not finished. He did not ask to see the work of some male students even though they were not concentrating on their work. (4)Incident 4: On 3 December 2010, Ms Obieta asked Mr Sullivan for the type of account for the chart of accounts of the clients. Mr Sullivan said, "Sales" and then asked Ms Obieta if that was right. Ms Obieta said, "No". Mr Sullivan then went to the front of the class and said, "You want to fight today? On Monday I will bring a baseball bat and hit her on the head." (5)Incident 5: On 3 December 2010, Mr Sullivan criticised Ms Obieta's work without checking it but did not teach her the procedures for Trust Accounting. (6)Incident 6: On 3 December 2010, Mr Sullivan came over to where Ms Obieta was sitting, looked at her figures and said, "Are you a Filipino? Are you a Filipino? When Ms Obieta said she was, Mr Sullivan said, "That is why your handwriting is like that, because you are Filipino. That is the handwriting of the Filipinos. Can you understand your handwriting? She replied, "Yes I can understand my handwriting." (7)Incident 7: On 9 December 2010 Ms Obieta asked whether the final exam was 'open book'. Mr Sullivan replied, "For you, no, but for the others, yes." Ms Obieta then said, "That is discrimination, that is discrimination." Mr Sullivan replied, "Well, that is not discrimination if I do not like you and I like the others. So for you it is not an open book, but for the others, yes." (8)Incident 8: After class on 9 December 2010, Ms Obieta and Mr Sullivan had a 'confrontation'. Ms Obieta complained of discrimination and Mr Sullivan told Ms Obieta that he was only joking. Ms Obieta said, "If you have problems with Filipinos, you cannot use it and discriminate against me." Mr Sullivan said, "You are the first Filipino I have encountered." Mr Sullivan then said, "I have noticed that you are a more advanced student than the others and that you know a lot of things." Ms Obieta replied, "What is wrong with that if I am advanced and I know a lot of things? That is why you are trying to put me down in the course and affect my performance activity in class." Mr Sullivan said, "I have noticed that you are a straight person, you do not mess round." According to Ms Obieta, Mr Sullivan also said to her three times, "Do not come back here any more in this course." Ms Obieta replied, "I have to come back, this is funded by DEEWR (Department of Education, Employment and Workplace Relations) under the Productivity Places Program." Mr Sullivan then said, "OK, just finish the course then don't come back any more." 16In order to come within the AD Act, these allegations must constitute a denial or restriction on Ms Obieta's access to a benefit provided by the College, subjecting her to a detriment, or the refusal or unfavourable provision of educational services. 17The College submitted that Ms Obieta's access to benefits or services was not restricted. She was not excluded from the class or denied the opportunity to complete assessment tasks. In relation to Incident 1, the College says that being the last person standing in an oral assessment exercise is not a detriment or a deprivation of services. At its highest it merely indicates her heightened sensitivity to a neutral exercise. In relation to the incidents on 3 December (Incidents 2 - 6), the College says that none of these allegations constitute a detriment. For example, the College did not require Ms Obieta to sit for a closed book exam it merely told her that that is what was going to happen. 18Despite being told not to come back to the course on 9 December 2010, Ms Obieta was not excluded from class and successfully completed the courses. According to the College, she is entitled to be awarded the qualifications of Certificate IV in Property Services (Real Estate) and Certificate IV in Property Services (Business Broking). Ms Obieta disputes that she is entitled to be awarded the qualifications. That matter will be addressed further in the context of the victimisation complaint. 19While Ms Obieta has not been denied any specific benefit or service, if her allegations are accepted, she has been subjected to a detriment. The detriment, on Ms Obieta's evidence, include being threatened with violence (the baseball bat suggestion), being told not to come back to the course, being the butt of belittling comments and being told she was not liked. 20Before sexual harassment was included in the AD Act, the Supreme Court decided that conduct which would typically be regarded as harassment can constitute discrimination on the ground of sex if the harassment results in some detriment: O'Callaghan v Loder [1983] 3 NSWLR 89. In that case Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment." Such conduct constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman. 21Since the decision in O'Callaghan v Loder , the AD Act has been amended to expressly include sexual harassment. There has been no corresponding amendment to add racial harassment: Metwally v University of Wollongong (1984) EOC 92-030. Consequently, for racial harassment to be unlawful, it must come within the test outlined in O'Callaghan v Loder. An educational authority or a service provider could be held to have contravened the AD Act by failing to respond appropriately to a learning environment permeated by racial harassment. The actual discrimination on the ground of race for which a respondent may be liable is its inadequate response to the learning environment, which the student is forced to endure. 22Consequently, the conduct described by Ms Obieta may breach the AD Act if the it produced a hostile learning environment and was directed to Ms Obieta because she is Filipino. Differential treatment 23The first component of direct discrimination is that the treatment is less favourable than the way the College treated or would have treated a person not of Ms Obieta's race. Ms Obieta did not nominate a person whose treatment could be compared with the way she was treated. When there is no actual comparator, the two elements of direct discrimination, differential treatment and causation, merge because the Tribunal could only reach the conclusion that the College treated Ms Obieta less favourably than a hypothetical person of a different race by determining that race was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. In those circumstances, the question becomes one of causation alone. Causation 24To constitute race discrimination, at least one of the reasons for the way Mr Compton and Mr Sullivan treated Ms Obieta must have been her race: AD Act, s 4A. The incidents involving a direct reference to Ms Obieta's race are Incident 6, the exchange about Ms Obieta's handwriting, and Incident 8, where Mr Sullivan said that Ms Obieta was the first Filipino person he had encountered. That comment was prompted by Ms Obieta's allegation that she was being discriminated against. 25A finding of race discrimination would have to be made on the basis of these comments and, in relation to the other incidents, by way of inference from all the circumstances. To draw an inference, there must be a probable connection between the treatment and Ms Obieta's race and the inference must be logical. An inference cannot be made where more probable and innocent explanations are available. 26On Ms Obieta's evidence, she has been harassed in class. She disclosed her background to Mr Compton and Mr Sullivan knew she was Filipino. Given Mr Compton's differential treatment of her when he apparently knew her background and Mr Sullivan's reference to her race in circumstances where she was being singled out, this is a case where caution should be employed. The complaint of race discrimination should not be dismissed as lacking in substance unless it is clearly warranted. I am not satisfied that dismissal of the race discrimination is warranted. Complaint of sex discrimination Legal principles 27Ms Obieta also alleges that the College has breached provisions of the Sex Discrimination Act 1984 (Cth). This Tribunal has no power to make a finding that any conduct is in breach of that Act. 28Under the AD Act, it is unlawful for an educational authority to discriminate against a person on the ground of sex by denying a student access, or limiting a student's access, to any benefit provided by the educational authority or by subjecting the student to any other detriment: AD Act, s 31A(2). Nothing in that section applies to a "private educational authority": s 31A(3). A "private 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, not being: (a) a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or (b) an agricultural college administered by the Minister for Agriculture. 29The Education Reform Act 1990 has been repealed and the College is not established under the Technical and Further Education Commission Act 1990. Consequently, it is a "private educational authority". That means that it is not liable for any breach of s 31A(2). The complaint, so far as it alleges a breach of s 31A, should be dismissed because it does not disclose a contravention of the AD Act. 30It is also unlawful for a service provider to discriminate against a person on the ground of sex by refusing to provide the person with those services or in the terms on which the other person is provided with those services: s 33. The non-exhaustive definition of "services" in s 4 does not include educational services. It would be anomalous if the College were regarded as a provider of educational services and subject to s 33 of the AD Act, when, as a private educational authority, it is exempt from compliance with the sex discrimination provisions applicable to educational authorities: AD Act, s 31A. That cannot have been parliament's intention. Consequently, the complaint, so far as it alleges a breach of s 33, is dismissed as not disclosing a contravention of the AD Act. 31Even if s 33 of the AD Act does apply to the College I would dismiss the complaint of sex discrimination as lacking in substance for the following reasons. 32Although Ms Obieta named Mr Compton, Mr Sullivan and Ms Sullivan, the principal of the College, as respondents, the complaint as referred to the Tribunal by the President of the Anti-Discrimination Board named the College as the only respondent. Ms Obieta applied for these individuals to be joined. They should not be joined to the complaint of sex discrimination because only a service provider is liable under s 33. The service provider is vicariously liable for the conduct of its employees or agents but employees or agents are not personally liable under either of those provisions: AD Act, s 52. 33Ms Obieta relied on 'direct' discrimination as defined in s 24(1)(a). Although she mentioned 'indirect discrimination' at various times in her written and oral submissions, the facts as alleged do not come within that part of the definition of discrimination. 34In order to substantiate a complaint of direct sex discrimination, Ms Obieta would have to prove that: (1) the College's services have been refused or she has been provided with those services on unfavourable terms (the treatment); (2) this treatment is less favourable than the way the College treated or would have treated a man (differential treatment); (3) at least one of the reasons for the treatment was Ms Obieta's sex (causation). 35Applying the principles in O'Callaghan v Loder, the conduct described by Ms Obieta may constitute a detriment if it created a hostile learning environment directed to a person or people of Ms Obieta's gender and occurred because Ms Obieta is female. The treatment 36Ms Obieta relies on each of the incidents listed above in relation to the race discrimination complaint and one further incident: (9)Incident 9: On 3 December 2010 Ms Obieta told Mr Sullivan that her calculator was giving different calculations and she could not get it right. Mr Sullivan said, "I will calculate this for you using your calculator and if I get it right, how about you make me a dinner?" 37Neither the President of the Anti-Discrimination Board, nor Ms Obieta, characterised her complaint as one of sexual harassment under s 22F. Differential treatment 38The first component of direct discrimination is that the treatment is less favourable than the way the College's employees treated or would have treated a person not of Ms Obieta's sex. As with the race discrimination complaint, Ms Obieta did not identify a male whose treatment could be compared with the way she was treated. She referred only to the male bullies in general terms. When there is no actual comparator, the two elements of direct discrimination, differential treatment and causation, merge because the Tribunal could only reach the conclusion that the College treated Ms Obieta less favourably than a hypothetical male by determining that race was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. In those circumstances, the question becomes one of causation alone. Causation 39To constitute sex discrimination, at least one of the reasons for the way Mr Compton and Mr Sullivan treated Ms Obieta must have been that she is a woman. While Ms Obieta describes how certain male students were treated, there is no reference by either Mr Compton or Mr Sullivan to Ms Obieta's gender. 40A finding of sex discrimination would have to be made by way of inference from all the circumstances. To draw an inference, there must be a probable connection between the treatment and Ms Obieta's sex and the inference must be logical. An inference cannot be made where more probable and innocent explanations are available. 41It may be inferred that Mr Sullivan would not have suggested that a male student make him dinner if he could get his calculator to work. However, that remark alone did not create a hostile learning environment directed to women even if it was made because Ms Obieta is female. 42Ms Obieta's complaint of sex discrimination lacks substance. Complaint of victimisation Legal principles 43It is unlawful for a person to subject another person to a detriment on the ground that that person has made an allegation of discrimination that would amount to a contravention of the AD Act: AD Act, s 50; Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808. 44Ms Obieta says that she made a verbal complaint of discrimination to Mr Sullivan on 9 December 2010 (see Incident 8 above). She says that following that complaint, Mr Sullivan did not take the class. Mr Compton took the class and told them that a complaint had been made and Mr Sullivan would not be marking the Trust Accounting assessment or supervising the exam. 45Ms Obieta says that after she made the verbal complaint, the detriments she suffered were that: (1) the College cancelled the two speakers from the real estate and business broking industry who were scheduled to speak to the class on 16 December 2010 about career opportunities; (2) the College cancelled the graduation for 17 December 2010 (3) after the course was finished, Ms Obieta received the Student Assessment Outcomes and Acknowledgement of the course modules for her signature. Ms Obieta alleges that the Directors, Mr and Ms Sullivan, intentionally did not assess her final examination questions in the Property Management module and excluded the Property Management module from the list of modules assessed in the final examination; (4) the College intentionally did not assess Ms Obieta's Business Broking Module Assessment on two occasions and excluded it from the Business Broker Module Student Assessment Outcomes document; (5) the College failed to award the two qualifications which she successfully completed when Ms Obieta refused to sign the Student Assessment Outcomes document. 46Ms Obieta agreed with the College's submission that the first two 'detriments' applied to the entire class, not just to her. In those circumstances, it is highly unlikely that they constitute a detriment to Ms Obieta on the ground that she complained about discrimination. The complaint of victimisation in relation to those two incidents lacks substance and should be dismissed. 47If Ms Obieta's allegations in relation to the remaining matters are accepted at their highest they may constitute a "detriment" under s 50. Given the proximity of those events to the allegations of race discrimination, it cannot be said that Ms Obieta's complaint of victimisation lacks substance. The Tribunal will need to make findings, based on all the evidence, as to the circumstances of Ms Obieta's assessment and her eligibility to be awarded the two qualifications. Orders 1. The complaint of sex discrimination is dismissed because it does not disclose a contravention of the Anti-Discrimination Act 1977. 2. The complaint of victimisation is dismissed in respect of allegations that: a) the respondent cancelled the two speakers from the real estate and business broking industry who were scheduled to speak to the class on 16 December 2010 b) the College cancelled the graduation for 17 December 2010. 3. The application to dismiss the complaint of victimisation is refused in respect of the remaining allegations. 4. The application to dismiss the complaint of race discrimination is refused. 5. The matter is listed for case conference on 24 October 2012 at 2.15 pm for 30 minutes. ********** 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: 12 October 2012