Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Shvetsova v State of New South Wales (Department of Education and Communities) [2012] NSWADT 253 Hearing dates: 15 August 2012 Decision date: 03 December 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. Leave is granted for the applicant's complaint of race discrimination alleging a breach of s 19(b) of the Anti-Discrimination Act 1977 to proceed. 2. Leave is refused for the applicant's complaint of race discrimination alleging a breach of s 17 and s 19(a) of the Anti-Discrimination Act 1977 to proceed. 3. The matter is listed for case conference on 19 December 2012 at 12.30pm. Catchwords: ANTI-DISCRIMINATION - leave sought to proceed with declined complaint - allegation of race discrimination by student teacher against a school - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Hamed v Director General, Department of Education [2007] NSWADT 43 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC IW v City of Perth (1997) 191 CLR 1 Category: Interlocutory applications Parties: Elena Shvetsova (Applicant) State of NSW (Department of Education and Communities) (Respondent) Representation: Elena Shvetsova (Applicant in person) Makinson & d'Apice Lawyers (Respondent) File Number(s): 121096 REASONS FOR DECISION Introduction 1Ms Shvetsova complained of race discrimination in breach of the Anti-Discrimination Act 1977 after she was marked "unsatisfactory" for a four week teaching practicum at Fairvale High School. The Anti-Discrimination Board declined the complaint and Ms Shvetsova has applied to the Tribunal for permission for the complaint to go ahead. I have decided, after assessing the merits of the complaint, that it is fair and just for the complaint to proceed to a hearing. Alleged conduct 2Ms Shvetsova was born in Russia and migrated to Australia in 2002 when she was in her early 30's. She was studying Teaching through the University of New England and had a practicum at Fairvale High School for four weeks in August 2011. Ms Shvetsova complains about three incidents. 3Firstly, Ms Shvetsova says, and the school accepts, that she was not warned in advance that she was at risk of being marked 'unsatisfactory' for the placement. Following a complaint to the NSW Ombudsman, he agreed that Ms Zilic, the head teacher, had not followed the University's recommended procedure for such cases. 4Secondly, Ms Shvetsova says that despite asking Ms Zilic three times, she was not given the interim report on her progress until 26 August, the last day of the placement. The school agrees that that was the case but says that Ms Zilic communicated her concerns to the University on 23 August, which was 10 days after Ms Shvetsova began practice teaching on her own. The school also says that there is no legal obligation on it to follow this procedure and that sufficient concerns were raised with Ms Shvetsova during her placement to indicate the possibility of an unsatisfactory result. 5Thirdly, Ms Shvetsova was marked 'unsatisfactory' for the placement despite positive comments and feedback by her two supervising teachers in her evaluation booklet. 6According to the school, both Ms Shvetsova's supervising teachers read the final report and agreed with its contents. The unsatisfactory result was based on concerns by those teachers and Ms Zilic in relation to lack of development in critical areas of professional experience. After speaking with Ms Shvetsova on 26 August the principal, Ms Seto, rang a representative from the University who told her to assure Ms Shvetsova that an unsatisfactory result in the practicum is not an overall fail mark. Ms Seto said that she relayed that information to Ms Shvetsova. Complaint declined - leave required 7The President of the Anti-Discrimination Board declined the complaint as "lacking in substance". That means that in his view, there is no factual basis for the allegations or the allegations lack merit. Ms Shvetsova elected to have the complaint referred to the Tribunal. A complaint that is declined and then referred cannot proceed unless the Tribunal gives its permission or "leave": Administrative Decisions Tribunal Act 1997 (ADT Act) s 96. 8Ms Shvetsova has the onus of persuading the Tribunal that it is fair and just for her complaint to go ahead, keeping in mind the purposes of the Anti-Discrimination Act 1977 (AD Act): Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ. Preliminary assessment of the merits of the complaint Discrimination by an educational authority? 9When referring the complaint to the Tribunal, the Anti-Discrimination Board identified an alleged contravention of s 17 and/or s 19 of the AD Act. Section 17 makes it unlawful for an "educational authority" to discriminate against existing students or a person applying to be a student. While Fairvale High School is an educational authority administered by the Department of Education and Communities, Ms Shvetsova was not a student of that school nor was she applying to be a student. In those circumstances there can have been no contravention of s 17. Permission for the complaint to proceed in relation to an alleged contravention of that provision is refused. Discrimination in the provision of services? 10Under s 19 it is unlawful for a person who provides services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services 11Section 19 does not make it unlawful to discriminate in the manner in which services are provided. 12The placement of student teachers undertaking professional experience is based on an agreement between the student teacher and the school principal. Whether or not a student teacher is offered a placement is up to each school principal. Ms Shvetsova contacted Fairvale High School and arranged the four week practicum herself. 13Was the school providing Ms Shvetsova with a service? The school conceded that it was arguable that it was providing services to Ms Shvetsova but did not identify those services. 14The term "services" must be interpreted liberally, but precisely: IW v City of Perth (1997) 191 CLR 1 at 16, 17 (per Brennan CJ and McHugh J). The services in this case may be identified as "providing student teachers with a four week placement and assessing the person as either satisfactory or unsatisfactory at the end of that placement." If that characterisation is correct, has Fairvale High School refused to provide Ms Shvetsova with that service or provided her with that service on unfavourable terms? 15The principal did not refuse to allow Ms Shvetsova to do her placement at the school nor did she refuse to assess her. There has been no refusal to provide Ms Shvetsova with a service. It follows that there has been no breach of s 19(a): IW v City of Perth (1997) 191 CLR 1 per Dawson and Gaudron JJ at 24 and Gummow J at 45. There is no need to determine whether, if a service had been refused, that refusal was discriminatory. Leave for the complaint to proceed in relation to an alleged contravention of s 19(a) is refused. Provision of a service on particular terms 16If the school provided Ms Shvetsova with the service on particular terms, that conduct may contravene the AD Act if the terms are discriminatory: s 19(b). Ms Shvetsova did not identify any particular term or terms on which the service had been provided. 17I have assumed that the conduct alleged by Ms Shvetsova constitutes the terms on which the service was provided, namely: (1)failing to follow University guidelines by not warning Ms Shvetsova that she was at risk of being marked unsatisfactory; (2)failing to give the University and Ms Shvetsova the interim report on her progress until the end of the placement; and (3)marking Ms Shvetsova's placement as unsatisfactory in circumstances where she was only assessed negatively in relation to 20% of the criteria, not 50%. Discrimination 18In order to substantiate a complaint of race discrimination in breach of s 19(b), Ms Shvetsova would have to prove that the alleged conduct amounts to discrimination as defined in s 7. I understand Ms Shvetsova to be relying on 'direct' discrimination which is defined as follows: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) 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 19There are two components to this test: differential treatment and causation. Differential treatment 20The treatment afforded to Ms Shvetsova must be compared with the treatment that would have been afforded to a person of a different race in the same or similar circumstances. Ms Shvetsova compared herself with two other students who did their placement at the same school and who were marked 'satisfactory'. When making the comparison between the way Ms Shvetsova was treated and the way an actual comparator was treated, the circumstances must be the same or not materially different. Even if the other two students were not of Russian background, nothing else is known of their circumstances. On the current evidence, they cannot be regarded as actual comparators. 21Alternatively, Ms Shvetsova pointed to comments from other students on the University's online discussion board as evidence that others were treated more favourably than she was treated. She said that one student, "Brendan", wrote that when the school was concerned about his performance, he had an honest discussion with the teacher and was given an opportunity to argue his case. The outcome was that some of his assessments were re-marked. "Gina" also told of her experience which was more favourable than Ms Shvetsova's. 22This evidence does not adequately identify a real person whose circumstances are the same as, or not materially different from, Ms Shvetsova's circumstances. The identification of an actual comparator is not essential. In the absence of an actual person, the Tribunal would have to apply the differential treatment test to a hypothetical non-Russian person in a comparable situation. 23When there is no actual comparator, the differential treatment and causation requirements merge. The Tribunal could only reach the conclusion that the school had treated Ms Shvetsova 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. Causation 24If this complaint went to a hearing, the issue would not be whether Ms Shvetsova was treated unfairly or whether she deserved to be marked as unsatisfactory for her placement. The central question would be whether at least one of the reasons for the alleged treatment was her race: s 4A. 25It is rare for there to be direct evidence that race was a factor in decision making. In this case, the only occasion on which race was allegedly mentioned was in a meeting with the school principal, Ms Seto, who said that, "Australian students are not like Russian students. Here, if students don't agree, they would argue with their teachers. This is not like in Russia where you are quiet and agree with everything." Ms Seto denied making this remark. If it was made, its significance, according to Ms Shvetsova, is that both Ms Zilic and Ms Seto knew that they had not followed the proper procedures but they were hoping that, because of her Russian upbringing, she would not take the matter further. 26Even if I accept Ms Shvetsova's version and interpretation of events, it does not support her assertion that the treatment itself was based on her race. 27Where there is no direct evidence of race discrimination, an applicant may seek to rely on an inference drawn from other facts: Hamed v Director General, Department of Education [2007] NSWADT 43 at [26]. It is not enough that the inference is a mere possibility, it must be one of "probable connection": Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. Such an inference may be drawn, for example, when there is no other credible explanation for the treatment. 28I turn now to assess the merits of each of Ms Shvetsova's allegations of race discrimination on the assumption that her submission is that race discrimination should be inferred from other facts. Failure to warn that she was at risk of failure 29The school did not follow the University's recommended procedure of warning a student in advance if he or she was at risk of being marked unsatisfactory. The principal, Ms Seto, acknowledged that although teachers supported Ms Shvetsova during her placement, the issues relating to her performance should have been raised with her and the University sooner. When investigating this matter the Ombudsman regarded the late notice of concerns as "an oversight" and concluded that it was not so wrong as to warrant any further inquiries. 30The school offered an explanation for failing to warn Ms Shvetsova. During the first week of the placement Ms Shvetsova was observing. After that there were a few days of team teaching. It was not until Ms Shvetsova began teaching on her own that the deficiencies became apparent. According to the Department sufficient concerns were raised with Ms Shvetsova to indicate that an unsatisfactory mark was a possibility. 31On the existing evidence, these facts are unlikely to give rise to an inference that one of the probable reasons for the failure was Ms Shvetsova's race. A more credible and innocent explanation is that it was an "oversight" as suggested by the Ombudsman, or simply poor administration. But at a Tribunal hearing all the evidence may reasonably come to a different view. Ms Shvetsova should be given the opportunity to identify a real comparator and/or to provide further evidence or argument to support her hypothesis. It is not fair or just to refuse Ms Shvetsova permission for this part of her complaint to go ahead. Failure to provide interim report until the final day 32The University's handbook asks schools to provide an interim report by the midpoint of the practice period. While there is no legal obligation on the School to do so, the University expects that procedure to be followed. It was not followed in this case. The School did not contact the University with an interim report until 23 August 2011 and Ms Shvetsova did not see that report until the final day of her placement on 26 August. 33Again, the existing evidence is unlikely to give rise to an inference that one of the probable reasons for the failure was Ms Shvetsova's race, rather than poor administration. But the connection is not so implausible as to justify refusal for this part of the complaint to proceed. Ms Shvetsova should be given a chance to provide further evidence and submissions to support her case. Marking the placement as "unsatisfactory" 34Ms Shvetsova said that the booklet recording her lessons shows that for 22 lessons (each with 22 criteria) she was only marked unsatisfactory on 20% of the criteria. In her view, the University's Assessment Policy, which is that a student will pass if he or she achieves a grade of 50%, also applies to placements. As long as more than 50% of the criteria were satisfactory, she should have been marked as 'satisfactory' overall. 35The school did not agree with that characterisation of the marking system. It said that that Ms Shvetsova was given positive feedback by her supervising teachers but in assessing her overall performance, it also considered the feedback which identified a number of areas requiring attention and development. It was on this basis that an unsatisfactory result was given. 36According to the Department, there were three areas of concern where "AN - Attention Needed" was identified, namely: (1)teachers know their students and how they learn; (2)teachers communicate effectively with their students; and (3)teachers create and maintain safe and challenging learning environments through use of classroom management skills. 37When she met with Ms Shvetsova on 26 August 2011, the principal, Ms Seto, went through the lesson evaluation booklet and noted the areas of concern in her diary. Those areas were: giving of instructions, non-verbal communication, positive reinforcement, effective pacing, management strategies, realistic goals, modelling correcting speech, introductory procedures, individual differences and feedback. Ms Seto agrees with Ms Zilic's assessment that Ms Shvetsova needed further development of her teaching practice in order to be graded as satisfactory. 38The Ombudsman investigated a complaint Ms Shvetsova made but closed that complaint on the basis that he did not consider the actions of the school to be so serious as to warrant further inquiries. The Ombudsman concluded that: I do not agree with the view expressed in your letter . . . that the school failed you without any sustainable reason. In my view it is not possible to conclude that even if the process was followed correctly that the outcome would definitely have been 'satisfactory' given the concerns raised by the teaching staff during your time at the school. For this reason I do not consider the University's decision to allow for an additional reduced placement is unfair or wrong or that the school had no basis for reaching the decision it did. 39The Tribunal is not bound by the Ombudsman's findings of fact. In any case, the test he applied is not the same test as the Tribunal would have to apply if the matter were to proceed. 40These facts are unlikely to give rise to an inference that one of the probable reasons for the unsatisfactory mark was Ms Shvetsova's race, rather than her performance. But neither the interim nor the final professional experience reports were in evidence. Without those documents it is premature for the Tribunal to find that the complaint is so lacking in substance that it would be fair and just to refuse leave. A final decision should await a closer assessment of all the evidence. Orders 1. Leave is granted for the applicant's complaint of race discrimination alleging a breach of s 19(b) of the Anti-Discrimination Act 1977 to proceed. 2. Leave is refused for the applicant's complaint of race discrimination alleging a breach of s 17 and s 19(a) of the Anti-Discrimination Act 1977 to proceed. 3. The matter is listed for case conference on 19 December 2012 at 12.30pm. ********** 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: 04 December 2012