Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Siddique v Director General of the Department of Education and Communities NSW [2015] NSWCATAD 27 Hearing dates: 1-3 October, 13 October 2014 Decision date: 27 February 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Conley, Senior Member M O'Halloran, General Member N Hiffernan, General Member Decision: The name of the respondent is amended to Director General, Department of Education and Communities NSW. The complaint is dismissed. Catchwords: Discrimination- disability in the area of employment Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW); Anti-Discrimination Act 1977(NSW); Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Mitchell v Clayton Utz & Ors [2009] NSWADT 255; Purvis v Sate of New South Wales [2003] HCA 62 (Purvis); Dutt v Central Coast Area Health Service [2002] NSWADT 133; Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Qantas Airways v Gama [2008] FCAFC 69; Burns v Laws (EOD) [2008] NSWADTAP 32; Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27. Category: Principal judgment Parties: Ghazanfar Siddique (Applicant) Director General of the Department of Education and Communities NSW (Respondent) Representation: Counsel: Mr Seck (Respondent) Solicitor: K & L Gates (Respondent) G Siddique (Applicant in person) File Number(s): 1410058 Reasons for decision Background 1. Mr Ghazanfar Siddique (referred to as the applicant) is a teacher at Blacktown Boys High School (BBHS) and teaches the subjects science and agriculture. He sustained a series of three work injuries from the end of 2009 to late 2013 and was required to take time of work and/or undertake suitable duties at work in relation to these work injuries. He claims that the first of these injuries led him to cease his voluntary role as cricket coach at the school. He also claims he has been diagnosed with hypertension and diabetes. He claims that shortly after he was certified fit following his third injury, the Principal of the school made a decision to nominate him for a transfer to another school. He claims that the decision was based upon his work injuries and inability to undertake voluntary roles at the school. 2. The applicant made a complaint to the Anti-Discrimination Board (the ADB) alleging that the decision to nominate him for transfer amounted to discrimination on the grounds of his disability pursuant to the Anti-Discrimination Act 1977 (the ADA). He wrote, "I could not take on many long term voluntary roles because I had been working under temporary disabilities due to my injuries and other medical conditions of hypertension and diabetes since 2009". He goes on to state, "He does not have any other valid reason to tell me that I am less value to school than other teachers and his decision is based on this assumption". 3. The President of the Anti-Discrimination Board referred the complaint to the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division (referred to as the Tribunal). The scope of the complaint referred by the President was a complaint of disability discrimination in the area of employment including a claim of vicarious liability. The period of the complaint was specified to be 14 October 2013 to 4 November 2013 and was in respect of an allegation that the decision to transfer the applicant was due to his inability to take on voluntary roles as a result of his disabilities. At the time of the hearing the applicant remained at BBHS. The procedure 1. The respondent indicated that it had been incorrectly named. The correct name is the Director General, Department of Education and Communities NSW. The respondent indicated that it did not oppose an amendment to correctly identify the respondent. The name of the respondent was amended to correctly identify it. 2. This matter was heard initially over three days from 1 October to 3 October 2014 and was adjourned for further hearing. The hearing was resumed on 13 October and concluded on that day. The Tribunal reserved its decision. Written statements were adopted into evidence and oral evidence was also given. 3. The applicant alleges that Mr Addy specifically targeted him and nominated him for transfer because of his disability. The applicant was unrepresented and the Tribunal confirmed with him whether he was making a complaint of direct discrimination at the commencement of the hearing. He told the Tribunal that did not know and thought he may have been also making a complaint of indirect discrimination. 4. The respondent indicated that the complaint is properly characterised as a complaint of direct discrimination. It was the respondent's submission that the applicant did not provide any evidence in respect of a complaint of indirect discrimination. The respondent conceded that it could adequately respond to a complaint of indirect discrimination by putting submissions to the Tribunal, without the need to file any further evidence. The Tribunal determined that the complaint would be considered as a complaint of both direct discrimination or, in the alternate, indirect discrimination. 5. A further issue arose in respect of the scope of the complaint. The complaint referred by the President of the ADB was an allegation that the decision to transfer the applicant was due to his inability to take on voluntary roles as a result of his disabilities. The applicant sought leave to amend the scope of his complaint during the course of the hearing. The Tribunal declined to grant leave with oral reasons provided at the time. Applicant's Evidence 1. The applicant provided a Notice of Appointment Transfer dated 9 November 2005. That document provides that he is to commence duty at BBHS as a teacher of agriculture, science, chemistry on 30 January 2006. A copy of his NSW Department of Education and Communities (DEC) "Teaching Skills page" indicates that he is "accredited, willing and approved" to teach agriculture, biology, chemistry, earth and environmental science, technology mandatory (years 7 to 8) and science. Since his appointment he has been teaching science and agriculture at BBHS. He has taught preliminary senior science for one year and HSC senior science for one year at BBHS and Agriculture at HSC level. He has also taught junior science. The applicant states that he has two years experience of HSC marking of senior science and is the only member of the science staff who has this experience 2. In respect of his qualifications the applicant stated that he holds university qualifications being a Bachelor of Science (Hons) (Agriculture), a Master of Science (Agriculture) and a Bachelor of Teaching. He completed the Master of Science (Agriculture) with soil science as a major subject, which he states is recognised as "agricultural chemistry" all over the world. He started a PhD in soil science in 1999 and completed one semester, before ceasing due to his migration to Australia in 1999. He said that he studied "at least three" post graduate chemistry units as a component of his MSc (Agriculture) degree. He claims no other science teacher at BBHS has equivalent qualifications and that he studied one doctorate level advanced chemistry unit. He provided copies of academic transcripts. He said that the Principal Mr Addy has passed judgment about his qualifications without "having a clue of my competencies in chemistry". His last job before migrating to Australia was at the Soil Salinity Research Institute Pindibhattian, Pakistan, where he was employed as an agricultural chemist. He has 10 years of experience in lab work related to chemistry and microbiology. 3. In relation to his injuries, he sustained a left heel injury and subsequent back injury at the workplace from 2 November 2009 to 22 November 2010. He claims he took time off work with these injuries and suitable duties were performed upon his return to work during this time. He then suffered an elbow injury at the workplace in 2012 from 14 August 2012 to 23 November 2012. No time was taken off work, fulltime duties were performed with some restrictions. He suffered a further right foot injury in 2013 for the period 15 August 2013 to 10 October 2013. He took two days off work and fulltime duties were performed with some restrictions for the rest of this time. Medical certificates were provided for these injuries. He said that the Principal Mr Addy was aware of the injuries because he was involved in the management of the work injuries. The applicant also claims he is diagnosed with type two diabetes and hypertension. He relied upon a prescription for medication in relation to the hypertension and a National Registration card for diabetes. 4. Prior to his first injury the applicant was the BBHS cricket team coach for the years 2006 to 2009 inclusive. During these years, he supervised the knockout cricket competition matches played by his team. By the end of 2009 he quit this voluntary role because of his left heel injury and claims he was unable to resume the role because of concerns of re-injury. 5. In respect of the process for nomination of transfer, the applicant gave evidence that at a whole of school teaching staff meeting in September 2013, the school Principal advised that there had been a shift in the subject choices of students at the school and there would be a need to replace one teacher to meet requirements. By the start of the school term in October, the Principal advised the faculty members of the combined maths/science faculty that there would be a need to nominate one teacher from this faculty for transfer. On 14 October 2013, the Principal called the applicant into his office with Mr Rolf Ballin from the Teacher's Federation and advised that he had decided to nominate one of the four science teachers and he had selected the applicant for transfer. 6. On 15 October 2013 the applicant sent an email to the Principal raising his concerns about the decision and requested a review of decision. On 16 October 2013 the Principal called him into his office and gave his responses to the points raised in his request for review. He claims that he was not satisfied as the response did not contain sufficient reason as to why other teachers were preferred over him. He was advised to lodge a formal application to Mr Rick Seretis who is the Director of Schools, for the Nirimba Network (the Director) which includes BBHS for review of the decision. 7. On 14 October 2013, he lodged a formal application to the Director requesting a review of the decision making process. He subsequently received a letter from Mr Seretis who advised that he had undertaken a review of the nominated transfer process at BBHS and the decision to nominate the applicant for transfer. He had considered the issues raised and was satisfied that the process was conducted correctly and the Department's Guidelines were followed. On 31 October 2013, the Director contacted him by telephone and explained his decision. The applicant alleges that the points raised by him were not adequately answered by the Director. 8. On 1 November 2013, he met with the Principal and once again requested him to review his decision. He was advised by the Principal that the decision had been made in the interests of the whole school. During the discussions the Principal said Ms Hussain, the most recent teacher appointment to the school had been appointed upon his request. He was told by Mr Addy that she was a "scholarship graduate" and it was "morally correct" to keep her. The applicant claimed that this amounted to what he describes as a "double discrimination" and was "not based upon merit". He claims that the Principal said that her accreditation code was "more valuable" than his. He told the Principal that it was not his job to assess accreditations and if he wanted to evaluate them, he needed to look at their University transcripts. He stated that his academic qualifications included six years of tertiary education with soil science as a major subject. 9. The applicant alleges that at this meeting, the Principal then asked him how many "voluntary roles" he had under-taken during his service at the school. The applicant told the Principal that he had served as the animal welfare liaison officer for more than five years. The Principal then said that this was part of his job. He was asked if he had under-taken a role of year advisor and responded that he had not, however said it is not a voluntary role because it is a paid role that comes with allowances of time and money. He advised the Principal that he had served as the school cricket team coach until 2009 when he was injured. He said that he had medical conditions and that is why he could not take on many voluntary roles since then, but had been taking short term voluntary roles whenever possible. 10. The applicant claimed that during this meeting, Mr Addy said to him, "I have to determine the value of each teacher to school. You think you are more value but reality is that under these conditions, you are less value to the school than other teachers because you cannot take on voluntary roles and outside school time activities". The applicant states that he felt insulted and humiliated by this remark and told the Principal that he would take the matter "to the Human Rights Commission". 11. The applicant also provided documents which are best described as "comparison tables". The documents were prepared by the applicant and in the tables he includes the curriculum accreditations (subjects teachers are accredited by DEC to teach), teaching experience, years in the school, residential location and scholarship history of the teachers considered for transfer. Relying upon his tables the applicant stated that that he has a higher number of accreditations compared to the other teachers. He also claims that he has seven and a half years of tertiary education, while the other teachers only have three or four years of tertiary education. 12. The applicant told the Tribunal that Mr Addy gave "false and misleading evidence" in relation to his workplace injuries when he claimed that they were easily managed at no cost and minimal impact to the school. He alleges that the students were "on the verge of losing their eligibility for the sitting the HSC examination and having certificates completed". He alleged he was targeted because of future risks to the students' studies if he was re-injured. The Tribunal notes that this was beyond the scope of the complaint referred. The applicant sought leave to amend the scope of his complaint during the course of the hearing. Aside from the applicant's assertions, there was, in any event, no evidence provided in support of this allegation and was contradicted by evidence filed by him. The Tribunal determined not to grant leave and this was dealt with orally during the course of the hearing. 13. The applicant relied upon what he said was a table which he had prepared from the nominated preferences for subjects chosen by students, having regard to what was indicated in their original subject preference forms. He asserts that on his assessment the evidence given by Mr Addy was "incorrect" in respect of student preferences. 14. The applicant was asked about the effect of being transferred to another school. He responded by stating that his objection was not to the transfer as such, but because the decision was not made on merit. He then said that he was comfortable at the school and did not want to leave and his son attends the school. The applicant's written statement was that the decision to nominate him for transfer had given him the impression that rather than being an asset, he is a liability to the school and the Principal wanted to get rid of him, "offloading him" to another school. It had caused him distress and grief. The decision had damaged his self-esteem and his image amongst his colleagues and students and had drastically affected his professional life and impacted upon his financial resources. 15. In his statement Mr Addy had referred to the identified need for a specialist chemistry teacher at the school, resulting in him requesting a teacher qualified to teach chemistry and earth and environmental science. The applicant told the Tribunal that he was also accredited to teach chemistry and earth and environmental science. He stated there are "no special codes" for such a teacher. 16. The applicant called three teachers from the school to give evidence. Two of the three other science teachers considered for transfer by Mr Addy, being Mr Fung and Ms Hussain gave oral evidence. Mr Cheema a mathematics teacher was the third teacher who gave evidence on behalf of the applicant. He relied upon documentary evidence only in relation to Ms Bou-Khalil the third science teacher. 17. Mr Patrick Fung told the Tribunal that he has a Bachelor Degree in Engineering and also a Masters Degree in Accounting. He is accredited with DEC to teach science and also mathematics subjects. He teaches the subjects chemistry, physics, senior science and senior maths at BBHS. When asked about any extra-curricular activities he undertook at the school, Mr Fung said that he is involved in tennis including the running of a tennis competition at the school. 18. Mr Cheema said that he is accredited to teach mathematics, which is the only subject that he teaches. He told the Tribunal that the reason for the need for a teacher transfer given to staff by Mr Addy at the staff meeting was that there was a "shift in curriculum" and that there was an extra teacher who was not needed. He understood that there was an extra teacher in an area where students were not picking elective classes. 19. Mr Cheema was asked whether he had expressed an interest in a transfer to another school. He told the Tribunal that he had previously made an application to DEC for a Transfer in 2009. So when Mr Addy raised the issue of the Transfer he first spoke to Ms Sharman and then Mr Addy about nominating for transfer. Mr Cheema spoke to Mr Addy on about 19 or 20 September 2013. He told him that he was applying to live closer to his home and asked if he could nominate for a transfer to a specific school. Mr Addy advised him that he could choose the area, but could not choose a specific school. He then asked what would happen if he could not obtain a transfer to a school in his chosen area. He was told that if he could not obtain a transfer in his area, he would be transferred to one of the areas surrounding Blacktown. This meant he could be sent to a school in the Penrith or Baulkham Hills area. Mr Cheema said that he already has problems with travel because he catches public transport and could have ended up further away from home, which would have been more inconvenient for him. He therefore decided not to nominate himself for this transfer. Mr Cheema told the Tribunal he undertakes extra-curricular activities, running the knockout cricket competition and the maths competition. 20. Ms Pemby Hussain told the Tribunal that she first commenced at BBHS in week two of 2013. She said that she is accredited to teach junior science years 7 to 10, HSC chemistry, biology, earth and environmental sciences and senior science. She holds a Bachelor of Science, majoring in general biology. She said that she originally commenced studying a Medical Science degree and then transferred to a Bachelor of Science Pathway to Teaching. The subjects she studied in her Medical Science degree were transferred to her teaching degree. She also has a Masters of Secondary Teaching. She was asked about whether she undertakes any extra-curricular activities or voluntary role at the school. She said that she is the Co-ordinator of the Anti-bullying program at the school. 21. The Tribunal notes that while much of the material contained in the applicant's oral and documentary evidence was in the nature of submissions rather than evidence, this was all considered by the Tribunal. Respondent's evidence 1. Mr Shaun Addy gave evidence to the Tribunal. He is the Principal of BBHS and has held this position since 30 January 2008. His evidence was that he has never had any cause for concern about the applicant's ability to teach or his commitment to the school. The applicant's workplace injuries were easily managed at no cost to the school and had minimal impact on the school. When the applicant was unable to work due to his work injuries, a relief teacher was organised. He said that he had no knowledge of the applicant's hypertension or diabetes and so those conditions did not have any influence on his decision. He denied the applicant's work injuries were the reason for his decision. 2. Mr Addy described the school. He told the Tribunal that BBHS is a high school for boys from years 7 to 12 which is located in the suburb of Blacktown. It now has what is known as an academically selective stream (selective) and also has a gifted, talented and interested stream (the GTI program) and a comprehensive stream. The GTI program commenced at the beginning of 2009 and the school became a selective school at the commencement of first term in 2010. Prior to this, it was a comprehensive local high school. 3. Mr Addy explained that there are 17 fully selective and 25 partially selective high schools in New South Wales managed by the DEC. The DEC runs a selective high school placement test in year 6 to determine which students will be placed into either the selective or enrichment streams of any high school. Placement into these streams is extremely competitive and highly sought after because students in these streams do better in the New South Wales Higher School Certificate. 4. He said that when BBHS was a comprehensive school, it had low enrolments and was not considered popular by locals. When he commenced as Principal at BBHS in 2008, there were 280 students enrolled. The introduction of the GTI program and the selective stream increased the popularity of the school. By the commencement of the 2014 school year, were 410 students were enrolled, of which 130 students were enrolled in the selective stream and 120 were enrolled as part of the GTI program. The remaining 160 enrolled students were local non-selective students. The school is divided into the junior school with students from years 7 to 10 and the senior school students being students in years 11 and 12. 5. In respect of student preferences for study in the curriculum, Mr Addy's evidence was that due to the commencement of the selective stream and GTI program that there had been a change in the student selection of studies at BBHS. This resulted in students choosing what he describes as "more mainstream science subjects" and consequently there was a trend away from students selecting "more vocationally oriented subjects such as agriculture, photography, visual design, hospitality, industrial technology (metals) and industrial technology (wood)" in both the junior and senior school. He said that BBHS is a small school, but it is growing. He said that the difficulty for him, is managing the curriculum in a small school to meet the student needs. He said that he tries to ascertain which subjects are going to be in demand at the school by talking to students, parents, and colleagues at other schools and head teachers. Colleagues in other schools might advise of emerging subject choices. He then has regard to the information and makes a decision as to what he considers the best areas to teach. He is therefore anticipating a perceived trend in student demand. He also stressed that because of the size of the school, which is small, the teaching pool needs to be flexible. 6. In relation to the number of teachers allocated to the school, he said that the DEC determines the number of teachers allocated to a school based upon the number of students enrolled in the school. This is determined by reference to the DEC staffing policy, which has a formula for what is known as "teacher allocations". In addition to the teacher allocation, when the school reaches a certain size, it is also allocated head teachers, based upon the number of teachers. In relation to the allocation of teachers Mr Addy said that the school is not entitled to teachers, or head teachers, over and above what the DEC requirements allow. The Department contacts the school to advise when a school is entitled to an increase in teacher entitlements and also advises if there is a decrease in teacher entitlements and he has no control over this. 7. Mr Addy told the Tribunal that in August each year school Principals are required to put in a "guesstimate" to the DEC for the following year of the numbers of students expressing a preference for a particular subject. In respect of the enrolments, he told the Tribunal that he "guesstimates" the enrolments for the following year. 8. He said that school funding was based on the guesstimate provided to DEC in the August period and then the actual enrolments which are clarified the following February. When the actual enrolments are clarified, he may get a slight reduction or slight increase in his budget and teaching entitlements with the adjustments occurring in March. 9. He said that he had been endeavouring to "reposition" BBHS and to that extent had been trying to make sure that the school was able to meet the demands of the students and parents. He conceded that so far BBHS was "not winning the battle" as BBHS was being seen as a "stepping stone" by students to the next selective school. He said that the reality was, that BBHS has continued to lose a great majority of the better students to other private schools, or St Mary's Senior High School. 10. Mr Addy was questioned extensively about what the applicant suggested to him were inconsistencies in his evidence in relation to student subject nominations. Mr Addy told the Tribunal that the process for subject nominations was that the students were asked in August what subjects they would like to elect to undertake the following year. This provided what he described as "the raw data". He said that the reality was that there was a huge difference between what subjects students were saying they were going to elect in August and what actually occurred at the start of the following year. This was because the school continues to lose a significant number of its most gifted senior students to other schools. He then gave an example of a situation whereby 20 students had nominated a preference for biology in their preference forms prior to the end of the year. The following year none of those students returned to BBHS, all went to St Mary's Senior High School,. He said that this meant that it was difficult to ascertain which subjects would be required each year. Mr Addy said that in 2014, the subjects of biology, senior science, earth and environmental science and agriculture were not run due to limited popularity and/or timetable constraints. 11. Mr Addy told the Tribunal that at BBHS, agriculture has always been offered to students in years 9 and 10 as an elective subject and as a senior elective subject in years 11 and 12. As an attempt to boost interest in agriculture, in 2009 he decided that agriculture would be offered as a subject in year 8, however it was not successful in boosting interest. His evidence was that between August and September 2013 after the students had finalised choices for 2014, he determined that there was not sufficient demand for agriculture to be taught as a subject in 2014. 12. Mr Addy told the Tribunal that prior to his arrival there had been a decline in numbers at BBHS. Consequently the school had lost a head teacher. The head teacher who was nominated for transfer was from the maths and science faculties which resulted in what were previously separate faculties being combined with one head teacher. 13. In 2012 as a result of one teacher leaving the school, it became necessary to find a replacement teacher. In addition to the subjects already taught, Mr Addy and the head teacher of the Maths/Science faculty identified that there would be an increased demand in future for chemistry and earth and environmental science, while acknowledging that there were already teachers who could teach these subjects. He made a request to DEC for a replacement teacher with those "teaching qualifications". Mr Addy said that he specifically requested a Scholarship Graduate. He was subsequently advised by the DEC that a teacher had been found who was an "exact match" for his request and this was Ms Pemby Hussain. She commenced at the start of 2013 and has been teaching senior chemistry at the school since that time. 14. Mr Addy was challenged about his decision to appoint a teacher to teach "chemistry" and "environmental science". He said that the decision was made following a two month process of analysing data, consultations with the head teacher and discussions with parents, he made a decision that the school needed to acquire a specialist in chemistry and environmental studies. The method for obtaining a teacher was to enter specific teaching "codes" into the DEC computer system to request a teacher and the DEC would then find a teacher who had those teaching "codes". 15. On 14 September 2012, he entered the codes with the DEC to request a specialist chemistry and environmental science teacher. He said that these teachers are scarce and he had received no feedback from DEC "Staffing Services" on the availability of a teacher by December 2012. Mr Addy said that by this time, the school timetable had been prepared for the following year. Classes had been allocated in the school timetable to the replacement teacher, even though that teacher had yet to be appointed. By December 2012 there was a vacancy in the timetable for specified allocated classes. Mr Addy had to consider a fullback position if a teacher was not appointed in time for the following year. So at a whole of staff meeting, he asked for expressions of interest to take these classes the following year if no one had been appointed in time. He noted that the applicant, along with all other members of the faculty, expressed their availability to take the classes if necessary. He was asked why the applicant could not have taken the classes. He said that if one of the existing teachers were to be used to take the classes, then there would be a need to reschedule the timetable in order to accommodate the changes to that teacher's timetable. This was ultimately unnecessary as DEC then contacted Mr Addy to advise that they had "an exact match" for his request. That teacher, Ms Pemby Hussain, was used to fill the vacancies in the timetable. There was therefore no need to use any of the existing teachers to fill the vacancies in the timetable. 16. BBHS was subsequently advised by DEC that it had become entitled to an additional head teacher from the commencement of the 2014 school year. He said that this was because the school enrolments were "over 400 students" which he described as "the magic number". When questioned by the applicant during his evidence, he had to clarify this statement, acknowledging he had been flippant with the use of his language. He said that "400" was a figure generally regarded by school Principals as the "magic number" a term used by school Principals. He went on to say that despite this, it is not actually a "precise number" as in reality there was a complex formula relating to entitlements. He said that the senior students are calculated as a slightly higher value than the junior students. He said that in any event, it is not his decision to determine whether or not the school is entitled to a head teacher. This is the role of the DEC who apply their calculations to the enrolments. He simply received an email from the Department notifying him that he was entitled to a new head teacher. 17. Mr Addy said that there had been an increase in enrolments in mathematics and science over the last few years, so he determined that the most appropriate place to allocate the new head teacher was as head of mathematics. He noted that previously these two faculties had lost a head teacher requiring them to be a joint faculty. The allocation of the new head teacher to this faculty meant that mathematics and science would again become two separate faculties. 18. The consequence of the appointment of the new head teacher at BBHS meant that there was then excess in the teaching staff head count under the staffing policy. This was because the head teacher also had a teaching component to their duties. He said that he therefore needed to nominate one teacher to transfer to another school. He took steps under the DEC guidelines in relation to the reduction in staff entitlements and the procedures for nomination for transfer of teachers. 19. On about 18 September 2013, in accordance with clause 2 of the procedures for transfer, he held a meeting and announced that there was a need to reduce teaching staff at the school. He invited teachers who might be leaving, for reasons such as resigning, wanting voluntary transfer or for some other reason to advise him so that he could avoid nominating someone for transfer. His evidence was that if someone had volunteered, they could have been considered for transfer under the DEC guidelines if the criteria were met. By 10 October 2013, there were no teachers who indicated they were either resigning or wanting to transfer. This meant he had to select a teacher from the mathematics and science faculty, as it was that faculty that was gaining the head teacher. 20. He attended a further meeting with the teachers in the mathematics and science faculty and provided them with copies of the procedures for transfer. He advised that there would be an excess of teachers and he would need to nominate someone for transfer in accordance with the procedures for transfer unless someone nominated themselves. He did not receive any response. 21. Mr Addy told the Tribunal about the teachers who were considered for possible transfer, being the four teachers from the science faculty, Mr Siddique, Mr Fung, Ms Hussain and Ms Bou-Khalil. His evidence was that Ms Patricia Bou-Khalil is accredited to teach biology, physics and senior science. She teaches biology and senior science at the HSC level at BBHS. He did not nominate her because she was already teaching HSC senior science subjects. Mr Patrick Fung is accredited and dual trained as a mathematics and science teacher. He said that he did not want to nominate Mr Fung, because in a small school such as BBHS, he provided flexibility because he could teach in both the science and also the mathematics faculty. If demand rose in either stream, then Mr Fung could be utilised in either or both areas as required. 22. Ms Pemby Hussain had recently commenced at BBHS. She was accredited in senior science, chemistry and earth and environmental science. She was experienced in teaching junior science and senior science and chemistry at BBHS. She had been recruited because there was an increase in demand for chemistry and he considered that there would be a likely interest in environmental sciences. 23. At the time he made the decision and also when he prepared his written statement, Mr Addy had claimed that Ms Hussain was a "scholarship graduate" and this was also a factor which influenced his decision-making. He said that BBHS was a school which was regarded as hard to staff. Because of this he made a specific request for a scholarship graduate as Scholarship students receive financial assistance towards doing their degree and it was a condition of the scholarship that they are required to stay in a hard to staff school for a period of three years. This meant that the teacher had come from a disadvantaged background and was willing to teach in a "hard to staff" school such as BBHS. Ms Hussain commenced at the school at the start of the 2013 school year. Mr Addy said that he did not want to nominate Ms Hussein as she had specifically studied to teach chemistry and EES as majors. She was from a similar background to the students from the school and was doing extremely well in her first year of teaching. 24. Ms Hussain's own evidence was that she was not a scholarship graduate and Mr Addy's belief was incorrect. In relation to this issue, Mr Addy told the Tribunal that he had requested a scholarship graduate from DEC with the teaching codes of "chemistry" and "environmental science". He was notified by DEC that they had found an "exact match". He was never advised that she was not a scholarship graduate and was unaware of this fact. 25. Mr Addy's evidence was that Mr Siddique had experience teaching agriculture and was accredited to teach other senior science subjects including chemistry, but he had never taught HSC chemistry at BBHS. The applicant asked Mr Addy about how Mr Siddique's qualifications compared with Ms Hussein's. Relevantly however, he said that had not seen their qualifications or transcripts prior to his decision. 26. Mr Addy gave a statement to the ADB to the effect that to the best of his knowledge during his 8 years at BBHS the applicant had not taught chemistry, physics, earth & environmental science, biology or senior science. The only HSC level subject he had taught was agriculture. It was put to Mr Addy that he had incorrectly reported the applicant's teaching experience and Mr Addy fully acknowledged that he had made an error. He said that he had been unaware that the applicant had taught the subject "senior science" prior to his arrival. He said that he did not attempt to mislead anybody, he was simply unaware of this fact. He had formed this mistaken belief because during the time he had been at the school, the applicant had never taught senior science and he had been told that he had never done so by a previous staff member. He also acknowledged that he had not seen the applicant's teaching records, resume, or academic transcript. He told the Tribunal that generally he did not see the academic transcripts or the resume of his teaching staff. 27. Mr Addy said that having regard to facilitating the best learning outcomes for the students in the curriculum areas that were emerging as most popular, he decided that Ms Bou-Khalil, Mr Fung and Ms Hussain were best placed to meet the school's curriculum needs. He considered that while the applicant's qualifications accredited him to teach other senior school subjects, the other teachers were "already teaching" those subjects. He therefore considered that they were better suited to the school's curriculum. 28. On 14 October 2013, in accordance with the procedures for transfer, he made a decision to nominate a teacher for transfer based on the curriculum requirements of BBHS. He referred to the procedures for transfer which specify that the curriculum requirement is the primary consideration. Clause 1 provides, "In making a decision as to which teacher is to be nominated, the prime consideration is the whole school staffing needs in relation to its curriculum". He decided to nominate Mr Siddique for transfer. He arranged for Rolf Ballin, who is a BBHS Teacher's Federation representative, to be present when he met with the applicant to advise him of his decision. He contacted the applicant and indicated that he may want to bring a support person. He advised the applicant of his decision and told him that he had gone through the DEC process in accordance with the procedures for transfer. He had considered the curriculum for the next year and beyond and made the decision to nominate him for transfer. He told him he should go online and complete the nominated transfer form. He also advised that if he indicated that he had been nominated for transfer, he would be given priority over other teachers in his preferences. He also told the applicant that as the schools were in the middle of the staffing process, it was in his best interests to start the process straight away. 29. Mr Addy's evidence was that he received an email from Mr Siddique on 15 October 2013 requesting a review of the decision and there was no mention of unlawful discrimination in his correspondence. He contacted Mr Rick Seretis who directed him to provide a response to the applicant's complaint. On 16 October 2013, he arranged a meeting with the applicant to clarify a response to the issues raised in his email of 15 October 2013. Mr Ballin was present at the meeting. 30. On 1 November 2013, Mr Siddique again approached him and asked him if he could meet him in his office, to which he agreed. There was no support person present. He asked Mr Siddique if Mr Rolf Ballin was coming and was advised by him that Mr Ballin would not be present as he just wanted a private conversation. Mr Siddique told him that he disagreed with the decision and had appealed. Mr Addy gave evidence of the conversation he had with Mr Siddique at this meeting. 31. The applicant told Mr Addy that he was capable of teaching chemistry. Mr Addy said that he was aware that the applicant had a Bachelor degree and also a Masters degree. He was also aware that he was accredited to teach other subjects. He said that Ms Hussain was already teaching chemistry and specifically studied chemistry. He advised that he felt she fitted the curriculum needed by BBHS better than the applicant. In relation to Ms Hussain, Mr Addy also advised that he did not consider it was "morally right" to ask somebody who was bound by a contract for three years to the Department to tell them that they have to leave the school after one year. He was under the misapprehension that she was a scholarship graduate. 32. The applicant asked him if he was saying that she was "more valuable than him". The applicant also said that he had done much more for the school during his time at the school and was more committed than others. Mr Addy said that applicant told him that he had run professional learning for technology and had also run the knockout cricket team. Mr Addy said that there were other people in the faculty who had also delivered professional learning and had been year advisors. He commented that someone else in the faculty was now coaching the cricket. He denied that he had asked the applicant how many voluntary roles he had undertaken during his service at the school. He said that Mr Siddique had volunteered this information. 33. Mr Siddique alleged that Mr Addy said words to the effect, "You think you are more value but reality is that under these conditions you are less valued to school than other teachers because you cannot take on voluntary roles and outside school time activities". Mr Addy denied making this comment or saying anything approximating this. Mr Addy said that it was not a question of whether or not the applicant was more committed, as he made the decision based on the curriculum needs of the school. 34. The respondent relied upon a document entitled, "Reductions in staff entitlements procedures for the nomination for transfer of teachers November 2012". That document notes that variations to staff entitlements of schools may necessitate the nomination for transfer of some teachers. A nominated transfer may be required because of either a decrease in the total school enrolments, or a change in the curriculum offerings in a school. It specifies that, in making a decision as to which teacher is to be nominated, the prime consideration is the whole school staffing needs in relation to its curriculum. It sets out the procedures in relation to a nominated transfer. It specifically states that where a teacher needs to be transferred, principals must consider the whole school staffing needs in relation to its curriculum, which is the overriding factor in all such decisions. The policy provides that equal consideration should be given to both full time and part time permanent teachers, regardless of length of service in the school. It provides that in the event that the principal is unable to differentiate between two or more teachers on curriculum grounds, the principal in making a selection may consider any personal details voluntarily provided by the teachers, especially when the transfer is likely to involve a change of residence. 35. Mr Addy denied that there was any concerted attempt to "get rid of" the subject of agriculture, or the applicant himself, as claimed by the applicant. In relation to the decision to cease teaching year 8 agriculture, his evidence was that the applicant approached his head teacher, Ms Sharman, during term three of 2013 and advised her that he no longer wanted to teach year 8 agriculture. 36. It was put to Mr Addy that he should have personally looked at the academic transcripts and records of the teachers when considering making a decision which would affect people's lives. Mr Addy advised that he does not specifically consider staff academic qualifications or look at academic records. He said that even when seeking teachers, he does not see their academic records. He will request a certain type of teacher, by requesting specific "teaching codes" which are then filled by DEC and he is contacted by DEC to say that the "codes match". He also said that Head teachers advise him of the subjects that a teacher has experienced teaching. He is aware of what subjects a teacher is actually teaching by reference to the timetable. He acknowledged he did not look at academic records when he decided to nominate Mr Siddique for transfer. Mr Addy advised that experience such as HSC marking is not a matter which is a consideration in the nomination for transfer. It is outside the DEC guidelines. 37. It was put to Mr Addy by the applicant that he had indicated his willingness to teach chemistry when they could not find a replacement teacher. Mr Addy conceded that the applicant, "along with others", had indicated that he was willing to teach chemistry when staff were asked if they could teach the classes if the new teacher was not found for the start of 2013. He said that ultimately, however, they were allocated the teacher that they had requested who then taught the subject. 38. Mr Addy was specifically asked if he was aware of any other teachers that had more injuries than the applicant. He indicated that he was and gave evidence about another teacher. 39. Mr Addy was asked if the school conducted a "community survey" in respect of academic curriculum trends. Mr Addy said that he did not and that the trends were determined from anecdotal comments. He has regard to which subjects were being selected as priorities in student subject nomination forms, information from careers advisors, parent teacher nights and enrolments. 40. Mr Rick Seretis gave evidence. He holds the position of Director of Schools, for the Nirimba Network. In this capacity he reviewed the Principal's decision to nominate the applicant for transfer. He said that his role in this regard was confined to a review of whether or not the Departmental guidelines had been followed correctly, or if there had been a breach in the process. He told the Tribunal that he has no power to consider an appeal on the merits. He said that the decision on the merits was the role of the school Principal who was the primary decision maker. He conceded that in undertaking his review he did not look beyond the scope of whether the correct procedures had been followed by Mr Addy in relation to the decision to nominate Mr Siddique for transfer. He determined that the procedures had been correctly followed and did not consider the merits. 41. Ms Sharman gave evidence that she is the head teacher of science at BBHS. She manages all of the teachers who teach a science subject. Agriculture is part of her faculty. Her evidence was that, as head teacher, she had regular discussion with each of the teachers in the science faculty regarding their subjects. 42. Ms Sharman's evidence was that when she first arrived at BBHS in 2009, agriculture was not offered as a subject to year 8 students. It was commenced as a subject for year 8 students in 2010. She said that in 2013 both she and the applicant were aware of the results of the previous year's elective choices. They knew that even though all year 8 students had taken agriculture as part of their curriculum, insufficient students from year 8 had chosen agriculture as an elective in year 9, so it was not run as a subject in 2013. The applicant was teaching agriculture to year 8 students for one period per cycle, a cycle being 10 school days. Her evidence was that around term two of 2013, which is April or May of 2013, she had a discussion with the applicant in the staff room. She recalled he said words to the effect, 'I think teaching agriculture to year 8 students for one period per cycle is not working. I would rather not teach year 8 agriculture at all in 2014'". She said that she responded that she would pass on the information to Mr Addy. She said that she understood from the conversation with the applicant that he no longer wanted to have agriculture offered as a subject as part of the curriculum structure for year 8. He had previously mentioned to her that he wanted to return to the previous curriculum structure in which students only commenced agriculture in year 9. She said that she told the Principal Mr Addy and requested that agriculture periods be removed from the year 8 course allocations in the 2014 timetable structure. 43. The applicant specifically asked Ms Sharman whether or not she made a record of this conversation, either by recording it in her diary "or by any other form of writing". She said she could not recall. It was not put to her that the conversation did not occur. Applicant's Submissions 1. The applicant submitted that his injuries amount to a disability. He claims that the implications of his past injuries are such that he could aggravate those injuries in the future. 2. The applicant claims that the decision to nominate him for transfer is based on his disability because he could no longer take on long-term voluntary roles/extracurricular activities because he had been working under temporary disabilities due to his injuries and the medical conditions of hypertension and diabetes since 2009. He claims that there is no other valid reason to tell him that he is of "less value" to the school than other teachers and the decision to nominate him for transfer is based upon this assumption. 3. He claims that because he was the only agriculture teacher a decision was made to "get rid of" the subject agriculture. He asserts that the plan to remove him was "a two phase process of execution". He claims that this was undertaken firstly by getting an extra teacher in the science faculty who could teach the subjects he could teach, including environmental science. He claims that there was no need for an additional teacher and the only reason this teacher was sought was to replace him. 4. It was submitted that the respondent planned to remove him once he was injured. The respondent "pretended" that there was a need for extra teachers in science. He claims that prior to the appointment of the new science teacher, Ms Pemby Hussain, he requested Mr Addy allow him to teach chemistry and his appointment to BBHS qualified him to teach agriculture, science and chemistry. His degree shows that he has qualifications in chemistry. His accreditation with DEC shows that he had been willing to teach chemistry and science since his first day at BBHS. He submitted that there was no need for a nominated transfer as there had been no change in the teacher entitlements. 5. The applicant submits Mr Addy gave a different reason to Mr Seretis than the reason given to the teachers for the need to nominate for transfer. It is claimed that Mr Cheema was given misleading information in respect of the transfer process. 6. The applicant contends that Mr Seretis did not properly consider the documents that he put to him. He simply relied upon the information provided by Mr Addy and he did not check the documents for himself. Mr Seretis did not check the curriculum, the qualifications, the entitlements or the explanations given by Mr Addy. 7. The applicant submitted that both Mr Addy and Mr Seretis relied upon "assumed information". He claims that when Mr Addy referred to trends in student subject choices, that those trends "do not amount to measureable parameters". He claims there was no proper survey to measure such data. He also claims that Mr Addy gave "false and misleading information" to the Tribunal. 8. He submits that he had preferable qualifications to the other teachers Mr Fung, Ms Bou-khalil and Ms Hussain and should not have been selected for transfer. He submits that in the absence of any other reason, this must amount to discrimination on the basis of his disability. 9. He also claims that Mr Addy has deliberately misrepresented the accreditation of the other teachers. Specifically, Patricia Bou-Khalil's accreditation for chemistry has been "intentionally concealed". He claims that the full accreditations of Mr Fung being chemistry, physics, senior science and mathematics are not mentioned. He claims that the reason for this is because there was no need for an additional specific chemistry teacher. He alleges that there was no need for an earth and environmental science and chemistry teacher as there was no demand for earth and environmental science. Respondent's submissions 1. The respondent does not contest that the allegations of the work injuries constitute a disability within the meaning of Sections 4 and 49A, which include past and present disability in relation to the work injuries. The respondent notes that the injury and therefore the disability, has ceased. The respondent submits that there is no current disability, but concedes there has been a past disability within the meaning of Section 49A(c). 2. The respondent submits that the complaint before the Tribunal is properly characterised as one of direct discrimination in that the applicant alleges he was directly targeted for transfer by Mr Addy the school Principal. 3. The respondent submits that the applicant was not subject to any detriment. It was submitted that any detriment which might arise from the proposed transfer that has yet to occur. It was submitted that the transfer does not amount to a disadvantage as a matter of substance because the role of a teacher is governed by the Teaching Services Act 1980 (NSW) which provides that a teacher can be transferred at any time and therefore a transfer would not amount to a disadvantage. The Director General of the Department may make decisions for the transfer of teachers and Mr Addy was acting as his delegate. 4. It was further submitted that at this time any detriment is completely hypothetical and the application is premature. There is a process for nominating for a position for transfer. The applicant could find a vacancy and take up a teaching position which is closer to his home. There would be no reduction in his pay, nor any other service provisions. Therefore, there may be no detriment. 5. The respondent submitted that there were no appropriate actual comparators. In relation to whether the treatment was on the grounds of disability, the respondent submits that it was not and that Mr Addy has proffered an innocent explanation for the treatment. 6. The respondent submits that the applicant's complaint is really a request for review on the merits and even if the applicant is right in respect of the merits, that does not amount to the respondent making an unlawful decision on the grounds of disability. 7. In respect of a claim of indirect discrimination, the respondent submits that there is no express assertion that there was a requirement or a condition imposed by the respondent. It was submitted that there could be a construction that extra curricular activities could amount to a requirement or condition, however there was no evidence of this. 8. It was submitted that there was no evidence of any base group or sub-groups, in respect of any comparison. The respondent submitted that there is no evidence that the applicant could not perform extra curricular activities. It was submitted that the applicant could in fact perform extra curricular activities as there were a variety of differing examples of extra-curricular activities given in evidence, including chess and running the anti-bullying program. 9. The respondent submitted that in relation to a compliant of indirect discrimination the base groups need to be precisely identified. Even if these issues were satisfied, it would need to be proven that the requirement was unreasonable. The applicant has not shown that there was any requirement or condition nor that any such requirement was unreasonable. Relevant Legislation 49B What constitutes discrimination on the ground of disability A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator (a) on the ground of the aggrieved person's disability … 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 who does not have that disability …, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, …comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. … Section 4(1) defines disability as follows: 4(1) "disability" means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),then, for the purposes of this Act, the act is taken to be done for that reason. 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act THE DECISION The Claim of Direct Discrimination 1. The applicant claims that the decision of the respondent to nominate him for transfer amounts to direct discrimination on the grounds of disability. Section 49B(1) (a) of the ADA provides that a person discriminates against another person on the ground of disability if, on the ground of the aggrieved person's disability the person 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 who does not have a disability. Section 49A includes a past disability. Section 4A of the ADA provides that if an act is done for 2 or more reasons and one of the reasons consists of unlawful discrimination under the ADA against a person (whether or not it is the dominant or a substantial reason for doing the act) then the act is taken to be done for that reason. Did the applicant have a disability at the relevant time? 1. The applicant gave evidence (and it was not challenged) that the school Principal was fully aware of his three work injuries because he was involved in the process of managing those injuries. He alleges that the Principal directly targeted him for transfer to another school. He alleges that he was told that he was of less value to the school because he did not undertake extra-curricular activities/voluntary roles. 2. He also claims that he has diabetes and high blood pressure, but presented no evidence that the Principal was aware of those conditions. The applicant has not provided any probative evidence in the form of reports from treating or qualified medical practitioners in relation to the conditions of diabetes and hypertension. He simply relies upon a prescription and also a National Registration card for diabetes. 3. Despite these deficiencies, it was not in dispute that the applicant had a disability at the relevant time. It was conceded that the applicant's work injuries constitute a disability as defined under the ADA. There is no evidence that those injuries are ongoing, however section 49A includes past disabilities. The Tribunal therefore finds that at the time the decision to nominate him for transfer was made, the applicant had a disability, being his previous work injuries. Was the Applicant denied a benefit or did he suffer any detriment? 1. The applicant makes a complaint that the respondent discriminated against him on the basis of his disability in the area of his employment. Section 49D deals with disability discrimination against employees. The only relevant provision in respect of this complaint would be section 49D (2) (d) which provides that it is unlawful to discriminate against an employee on the ground of disability "by subjecting an employee to any other detriment". 2. The meaning of "detriment" was discussed in a decision of Mitchell v Clayton Utz & Ors [2009] NSWADT 255, a decision of the former Administrative Decisions Tribunal (the ADT). In that matter the ADT referred to a series of cases where the meaning of the phrase had been considered. They referred to O'Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC 92-023 where the phrase "subjecting … to any other detriment" in section 25 (2) (c) of the ADA was considered by the then DCJ Mathews. She stated, "I do not regard the expression "subjecting …to any other detriment" as meaning anything more that "putting under a disadvantage", but noted that the disadvantage must be a matter of substance. It was also noted that it was difficult to define and was a matter of fact to be determined in each individual case, but that the test was an objective one. It was not sufficient for an individual to believe that they have been subject to a detriment. 3. In this matter the respondent submits that the applicant has not suffered a detriment, because of a series of factors, including that the respondent is legally able to nominate a teacher for transfer under the relevant legislation and policies. Additionally, he has not yet been transferred and so may move to a school closer to his home which is more suitable to him. The applicant also gave some inconsistent responses in his evidence, at times stating that he did not object to the transfer, but was unhappy that the decision had not been made on merit. 4. The evidence before us indicates that it is possible that the applicant may obtain employment in the same area with no requirement for further travel to and from school. In this regard there may be no disadvantage to him in respect of travel. At times the applicant stated he was not concerned about a transfer but was unhappy because the decision was not made on the merits. Despite this, he clearly stated that he is familiar with and comfortable at the school. It is a school where his son continues to attend and he does not want to leave the school. The Tribunal finds that while the respondent may legally nominate a teacher for transfer to another school, in the circumstances here, the decision to nominate the applicant for transfer does constitute a detriment. Was the applicant less favourably treated? 1. In order to establish a complaint of direct discrimination there are two further elements which must be proven. The first element is that there was less favourable or "differential treatment" compared to a person who does not have a disability, in circumstances that are the same or not materially different. This involves a comparison. The second element is that the differential treatment was on the ground of the disability and is referred to "causation". Therefore, in order for the applicant to establish that the respondent discriminated against him on the grounds of his disability, by nominating him for transfer, the applicant must establish both differential treatment and causation in relation to the respondent's conduct. 2. In respect of the first element, which is the comparison, the Tribunal must consider whether the applicant was treated less favourably, than a person who did not have a disability would have been treated in circumstances that are the same, or not materially different. The meaning of the phrase, "in circumstances that are the same, or not materially different", was considered by the High Court in Purvis v Sate of New South Wales [2003] HCA 62 (Purvis). In Purvis, the High Court had before it a complaint of disability discrimination under the federal equivalent to section 49B. It was determined that the disability included the physical cause and the resulting behaviours and that the appropriate comparator is a person without the disability who engaged in the same behaviours as the person with the disability. The Court stated that "circumstances" referred to in the federal equivalent to section 49B "…are all of the objective features which surround the actual or intended treatment of the disabled person..." The Court went on to state that, " Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different." 3. The Tribunal then considered what would constitute, "circumstances that are the same, or not materially different", on the facts of this matter. The Tribunal finds that the circumstances that are the same or not materially different would involve a comparison between a teacher without a disability, who either undertook no extra-curricular activities/voluntary roles at the school, or no ongoing or recurrent extra-curricular activities. The comparison would be between such a teacher without the disability and the applicant. 4. The applicant did not provide any clear submissions as to the selection of a comparator, other than to make comparisons with each teacher and also reference to hypothetical comparators. The respondent submitted that none of the other science teachers are appropriate comparators. The Tribunal considered whether any of the science teachers were an appropriate comparator. 5. In relation to Mr Cheema, the Tribunal found that he was not an appropriate comparator as he undertakes regular extra-curricular activities in relation to cricket and maths. The Tribunal finds that Mr Fung is also not an appropriate comparator because he also undertakes regular extra-curricular activities in relation to tennis. 6. Ms Hussain also undertakes a regular extra-curricular activity at the school, as she is the Co-ordinator of the Anti-bullying program. There are also different considerations in relation to her position because she was thought to be a newly appointed "scholarship graduate". While she was not in fact a scholarship graduate, the Tribunal finds that Mr Addy was of the belief that she was. The Tribunal finds that she is not an appropriate comparator because she undertakes regular extra-curricular activities and in any event her circumstances were materially different because she was erroneously thought to be a scholarship graduate. 7. The Tribunal can make no findings in respect of whether Ms Bhou-Khalil undertakes any extra-curricular activities, or even whether she has a disability. We are therefore unable to find that she is an appropriate comparator. 8. There was therefore no appropriate actual comparator. When there is no actual comparator the Tribunal can consider a hypothetical comparator. In this situation the issues of "differential treatment" and "causation" "merge" because the Tribunal can only reach the conclusion that the respondent treated the applicant less favourably than a hypothetical person without a disability, by determining that the disability was the reason for the treatment, Dutt v Central Coast Area Health Service [2002] NSWADT 133. The Tribunal must therefore consider the issue of causation. Was the treatment on the ground of the applicant's disability? 1. In the matter of Purvis, the High Court found that in order to establish causation, it must established that "a real, genuine or true reason" for the treatment was the applicant's disability. The applicant must therefore establish that his disability, either alone or in combination with other reasons, was the true basis for the treatment. 2. The Tribunal considered whether there was any direct evidence that the treatment was on the ground of the applicant's disability. The applicant alleges that he had a conversation with Mr Addy whereby Mr Addy told him that he was less value to the school compared to other teachers, because he was unable to take on extra-curricular activities. This conversation was alleged to have occurred in the office of Mr Addy. The applicant specifically requested that Mr Ballin not be present and there were no witnesses to the conversation. Mr Addy denied saying any words to this effect. He acknowledged that the applicant had raised the subject that he had undertaken extra-curricular activities at the school and Mr Addy had responded that other teachers had done so also. 3. The applicant bears the burden of proof in respect of the facts upon which he relies. In Qantas Airways v Gama [2008] FCAFC 69 [at 55] Branson J discussed the standard of proof, referring to what is known as the "Briginshaw" standard. She indicated that "Briginshaw" was about the quality of the evidence, not the standard of proof. She stated, "The correct approach to the standard of proof in civil proceedings in a federal court is that for which s140 of the Evidence Act provides. It is an approach which recognises … that the strength of evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved." 4. In Burns v Laws (EOD) [2008] NSWADTAP 32 the Tribunal dealt with this issue in relation to discrimination claims. It was noted that "Briginshaw is a case about the standard of evidence required to meet the burden of proof." 5. The Tribunal further considered the "Briginshaw standard" in Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27. The Appeal Panel noted section 140 of the Evidence Act 1995: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 1. In considering the competing evidence, the Tribunal has considered the applicant's submission that the evidence of Mr Addy should not be accepted because he has deliberately attempted to mislead the Tribunal by giving "false" and "misleading" evidence. 2. Mr Addy conceded he did not check his facts in relation to teacher qualifications before he made his decision to nominate the applicant. While the applicant is critical of the lack of care taken in respect of the decision, the Tribunal does not find Mr Addy's reasoning for his lack of accuracy to be improbable such that we do not find him to be a credible witness. He based his decision upon matters which were "assumptions" . This included his belief that the applicant had never taught senior science at BBHS (which he had done for one year prior to Mr Addy's arrival). He was also incorrect in his belief that Ms Hussein was a scholarship graduate and also about her focusing upon chemistry in her degree when her primary focus was general biology. He was at times loose with his language, as in when he used terminology he said was used by school Principals, the "Magic 400" . He did however give his evidence in a frank manner. He freely acknowledged any inaccuracies or errors in his evidence and provided a reasonable and plausible explanation for the errors. He may have been careless in respect of his knowledge of the teachers past training and experience, but he was aware of what they were teaching at the time of his decision. 3. Therefore despite any inaccuracies in his evidence, the Tribunal found that the evidence of Mr Addy was nonetheless credible and plausible. The Tribunal does not find that any errors in his evidence provides a basis for preferring the evidence of the applicant to that of Mr Addy in respect of the disputed conversation. In relation to the disputed conversation, the evidence is equivocal as to what was said. The Tribunal could not be satisfied that the conversation occurred. 4. There is therefore no direct evidence that the decision to nominate the applicant for transfer was on the grounds of his disability. This commonly occurs in complaints of discrimination. The issue of what happens when there is no direct evidence has been discussed in decisions including Dutt v Central Coast Area Health Service (2002) NSWADT 133 (Dutt), Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence, an applicant must rely upon inference. 5. In respect of drawing inferences to prove less favourable treatment, in Dutt the Tribunal stated that the authorities identify the following considerations: : * a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts; * an inference must be reasonably drawn on the basis of primary facts; * an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; * a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof; * it is not enough that the inference is a mere possibility: it must be one of "probable connection" ;the inference must be a logical one, and not supposition; * an inference cannot be made where more probable and innocent explanations are available on the evidence. 1. The Tribunal considered whether it was possible to draw an inference that the decision to nominate the applicant for transfer was on the grounds of his disability. The applicant attempted to establish that his educational qualifications are "superior" to those of the other teachers because he has "higher qualifications". He holds a Masters degree and commenced, but did not complete a PhD. His submission was that because of his "superior" academic qualifications, his disability could be the only reason for his nominated transfer. He said that he regarded the nomination for transfer as amounting to him being of less "less value" to BBHS. He claimed that if a teacher had less educational qualifications and/or less teaching experience than him, they could not be regarded as "more valuable" by the Principal. The Tribunal notes that despite this submission, it was the evidence of Mr Fung and Ms Hussain that they also hold a Masters degree. 2. The Tribunal notes that the applicant claimed Mr Cheema was misled about the transfer process. It was claimed by the applicant that if Mr Cheema had nominated for transfer voluntarily, then there would have been no need for the Principal to nominate a teacher. Mr Cheema provided a good reason as to why he decided not to nominate for this particular transfer. He could potentially have been disadvantaged if he could not obtain a transfer to a school closer to his home and had further travel on public transport to get to work. The Tribunal had regard to the Reductions in Staff Entitlements Procedures for the Nomination for transfer of Teachers. His evidence about what he was advised by Mr Addy was consistent with what was contained in the policy. The Tribunal found no evidence to support the allegation that Mr Cheema was misled about the process, or was given information inconsistent with the process. 3. The Tribunal finds that the school curriculum is the primary consideration in making a decision for the nomination for transfer under the applicable DEC policy guidelines. The evidence of Mr Addy indicates that his primary focus was the big picture of repositioning the school to be a desirable school to study, increasing enrollments and also academic performance. He undertook this task without reference to what the applicant described as "measurable parameters". He did this by trying to anticipate what subjects the students and parents would want to be taught at the school. His predictions have not always proven correct. He also acknowledged that he had not yet managed to retain the most gifted students in their senior school years. Having regard to the evidence given by Mr Addy, we find that it was the goal to "reposition" the school which formed the basis of his views about what should be taught in the school curriculum. 4. Mr Addy did not check the resumes or school teaching experience of his science teachers before making the decision for the nominated transfer. He instead relied upon his own knowledge, which was incomplete and incorrect. The Tribunal notes that throughout his evidence and submissions, the applicant attempted to establish that the decision of the Principal was not the correct decision on the merits. He wanted the Tribunal to review all the evidence and make a decision on the merits. This was despite the Tribunal clearly indicating that this was not within our jurisdictional powers. 5. The applicant may feel aggrieved about what he perceives to be a cavalier approach to a decision which affects people's lives, most particularly his own. It is possible that he may have superior academic qualifications in terms of knowledge of the subject of chemistry compared to Ms Hussain, however she is already teaching the subject. The scope of this Tribunal's jurisdiction is to determine if the Respondent discriminated against the applicant on the grounds of his disability, in relation to the complaint referred by the ADB. The Tribunal has no jurisdiction to review the merits of the decision, even if facts upon which the decision was based were incorrect, or the decision making process flawed. 6. In respect of the complaint of direct discrimination the Tribunal finds that Mr Addy has provided a plausible more innocent explanation for his decision. When Ms Hussain was recruited there was a vacancy at the school. It is DEC who determine a school's entitlement to staff, not the Principal. It was considered that there was a need for a teacher to teach the specific subjects of chemistry and earth and environmental science, in addition to the subjects already taught at the school in order to meet anticipated future requirements. At that time the science teachers were already allocated teaching subjects including the applicant. 7. Subsequently DEC determined that the school had become entitled to a head teacher. The Principal decided the head teacher should be appointed to the maths/science faculty and he has provided reasons for doing so. The appointment of the head teacher resulted in the school exceeding the teacher allocation under the DEC policy, so one teacher had to leave, either voluntarily, or by the transfer nomination process if no-one nominated. As no-one nominated the applicant was chosen for transfer. He was selected because at the time of the decision he was teaching a subject which the Principal considered less students at BBHS were interested in studying. While it was undisputed that he was accredited and could have taught other subjects, the other science teachers were already teaching those subjects. Duration of service is not a consideration in respect of the nomination process. 8. Having found that Mr Addy has provided a plausible more innocent explanation for his decision the Tribunal is unable to find that there is a probable connection between the applicant's disability and the decision to nominate him for transfer. The Tribunal is therefore unable to find that the respondent directly discriminated against the applicant on the grounds of his disability when nominating him for transfer. The claim of Indirect Discrimination 1. As noted the basis of the applicant's complaint was that he was directly targeted for a transfer by the respondent because of his disability. He stated that he thought he may have been making a claim of indirect discrimination. The Tribunal has therefore considered whether the evidence before us could substantiate a claim of indirect discrimination. 2. Section 49B(1)(b) of the ADA relevantly provides that a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability, the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. 3. In respect of a complaint of indirect discrimination, the first step is to identify the "requirement or condition", with which the respondent requires the applicant to comply. The scope of the complaint referred by the President of the ADB was an allegation that the decision to transfer the applicant was due to his inability to take on voluntary roles/extra-curricular activities as a result of his disabilities. The Tribunal therefore considered whether the evidence would support a finding that there was a requirement that teachers at BBHS undertake voluntary roles/extra-curricular activities. 4. The applicant presented no evidence to support such a claim. The applicant relied upon evidence from two other science teachers, Ms Hussain and Mr Fung that they undertook extracurricular activities, as did Mr Cheema a maths teacher. There was no evidence in relation to whether other teachers in the Maths/Science faculty undertook extra-curricular/voluntary activities. 5. The applicant identified no Policy documentation, nor any correspondence directing himself or other teachers to undertake such activities. While it was evident that some teachers at the school and in the Maths/Science faculty do undertake these roles, the evidence did not support a finding that there was a requirement that the teachers must undertake extra-curricular activities or voluntary roles at the school. The Tribunal therefore was not satisfied that there was a requirement or condition that teachers at BBHS, or in part of BBHS such as the Maths/Science faculty, undertake such activities or roles. 6. The Tribunal considered whether, if there was such a requirement, the applicant was able to comply. The applicant gave evidence that he had in the past undertaken the extracurricular activity of cricket coach and that he was no longer able to undertake this role because of fears of re-injury. The Tribunal heard of a range of other extra-curricular activities undertaken at the school beyond that of cricket coach which the applicant could conceivably undertake. This included activities such as such as chess, anti-bullying and running subject competitions such as the maths competition. There was no probative evidence sufficient to support a finding that the applicant could not comply with any such requirement or condition. 7. There was no evidence presented in respect of the disparate impact of any such requirement or condition. There was no evidence presented that any such requirement or condition was unreasonable. 8. The Tribunal accepted the submissions of the respondent that the evidence did not support a finding of indirect discrimination. 9. The Tribunal is therefore unable to find that the respondent indirectly discriminated against the applicant on the grounds of his disability. Orders 1. The name of the respondent is amended to Director General, Department of Education and Communities NSW. 2. The complaint is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 27 February 2015