Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Alwadi v University of New South Wales [2015] NSWCATAD 187 Hearing dates: 14 July 2015 Date of orders: 09 September 2015 Decision date: 09 September 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy, LCM, Deputy President Decision: Leave is refused for Mr Alwadi's complaint of disability discrimination to proceed. Catchwords: PRACTICE AND PROCEDURE – leave sought for complaint declined under the Anti-Discrimination Act 1977 to proceed – whether fair and just for leave to be granted Legislation Cited: Anti-Discrimination Act 1977 (NSW) s 49L(2), 49B(1)(b) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Wong v Office of the Board of Studies NSW (No 4) (03 July 2012)[2012] NSWADT 128 Category: Procedural and other rulings Parties: Fahd Alwadi (Applicant) University of New South Wales (Respondent) Representation: Solicitors: F Alwadi (self-represented) P Sheehy (Legal Office The University of New South Wales) (Respondent) File Number(s): 1510286 Publication restriction: Nil reasons for decision Introduction 1. Mr Alwadi complains that the University of New South Wales has discriminated against him on the ground of disability in contravention of the Anti-Discrimination Act 1977 (NSW). The University required him to sit for an examination or some other form of supervised assessment in four computer science courses in which he was enrolled in the first semester of 2014. Mr Alwadi says that he cannot sit for the exams because he suffers from anxiety, high blood pressure and palpitations. 2. The President of the Anti-Discrimination Board declined the complaints on the basis that they were lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or 'leave' for the complaint to go ahead: Anti-Discrimination Act, s 96. For the reasons given in this decision I have decided to refuse leave. Principles for granting leave – whether "fair and just" 1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J: 1. emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; 2. found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; 3. concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and 4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates. 1. The issue to be determined is whether it is fair and just in all the circumstances for the complaint to proceed. Alleged conduct 1. Mr Alwadi was enrolled in a post-graduate course in Engineering Science. His academic record shows that prior to 2014 he had enrolled in four semesters of study: Semester 2 of 2012, Semester 1 of 2013 (from which he withdrew) Semester 2 of 2013 and Semester 1 of 2014. 2. Mr Alwadi's complaint is about the four Computer Science courses in which he was enrolled in Semester 1 of 2014. Those courses were Data Warehousing and Data Mining, Computer Networks and Applications, Systems Capacity Planning and Security Engineering. For the Computer Science Engineering (CSE) subjects candidates need to pass both the assignments and the exam to achieve a pass in the subject. 3. The University required Mr Alwadi to sit for and pass some form of supervised external assessment in each of the four subjects. Mr Alwadi did not accept the alternatives and accommodations that the University offered. Those alternatives and accommodations included: 1. giving Mr Alwadi a dedicated room in which he could sit the exam on his own, but with supervision; 2. allowing 15 minutes extra time per scheduled hour of each exam and offering further time in excess of the 15 minutes if required; 3. permitting him to take food and drink into the exam; 4. scheduling exams on non-consecutive days and only in the afternoons; and 5. providing medical rest breaks during the exam, as necessary. 1. In addition the University states that they have arranged and re-arranged alternative dates for Mr Alwadi to complete the final examinations including an opportunity to sit the exams in early 2015. For one of the courses, Data Warehousing and Data Mining, the University offered to reduce the number of questions on the exam paper. 2. Mr Alwadi says he cannot sit the exams because of his anxiety and the only alternatives are to double his assignment mark or allow him to complete a take-home exam or research project. Relevant provisions Elements of disability discrimination 1. There is no dispute that Mr Alwadi has a disability within the meaning of that term in the Anti-Discrimination Act. 2. To substantiate a complaint of disability discrimination Mr Alwadi would have to prove that the University has breached s 49L(2) of the Anti-Discrimination Act by subjecting him to a "detriment". Although it is arguable that being required to undertake a supervised assessment process is not a "detriment," I accept for the purpose of these proceedings that it could be characterised in that way. 3. Disability discrimination is defined in s 49B of the Anti-Discrimination Act. Mr Alwadi would not be able to prove direct disability discrimination as defined in s 49B(1) because he has not been treated differently from any other person enrolled in the Computer Science courses in the first semester of 2014. Rather, the University has imposed a requirement on all students enrolled in certain courses that they complete a supervised examination. The only basis on which Mr Alwadi could substantiate his complaint is if he relies on indirect discrimination as defined in s 49B(1)(b): (1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator: (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, or who do not have a relative or associate who has 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. 1. In order to substantiate a complaint of "indirect" discrimination on the ground of disability, Mr Alwadi would have to prove that: 1. the University has required him to comply with a requirement or condition; 2. he cannot comply with that requirement or condition; 3. a substantially higher proportion of students without his disability can comply with that requirement or condition; and 4. the requirement or condition is not reasonable in all the circumstances. Identification of requirement or condition 1. The requirement or condition in this case is that Mr Alwadi sits for the exam or some other form of supervised assessment with accommodations as outlined by the University. Compliance with the requirement 1. Mr Alwadi says that he cannot comply with that requirement because of the level of his anxiety. The University submitted that Mr Alwadi can comply because he has sat for and passed exams before. For example, he passed GSOE 9210 and GSOE 9810 (Engineering Decisions and Quality in Engineering) in Semester 2 of 2013. He also passed COMP 9321 (Web Applications Engineering). According to the University, since the time his treatment commenced in August 2012, Mr Alwadi has been able to successfully complete subjects that have examinations. Mr Alwadi has only experienced difficulty with completing Computer Science subjects. He has passed all the Engineering subjects. 2. Mr Alwadi's response is that he felt comfortable sitting for exams where he had already passed the assignments. An email from Mr Boorman, an employee of the University's Counselling and Psychological Service dated 6 September 2013 states that Mr Alwadi first presented to their service on 3 June 2013 reporting that he had been experiencing difficulties with anxiety, high blood pressure and palpitations as a result of his stress from pending exams. Mr Boorman expressed the view that Mr Alwadi "has been experiencing a number of physical and psychological difficulties associated with the anxiety of sitting exams." Mr Alwadi also provided a letter dated 16 February 2015 from a general practitioner, Dr Guirguis, who expressed the view that Mr Alwadi "will not be able to attend his current scheduled exams for psychological reasons." On the basis of Mr Alwadi's evidence and that of Dr Guirguis it is likely that a Tribunal hearing this case would find that Mr Alwadi cannot comply with the requirement imposed by the University. Proportion of students who can comply 1. It is also likely that a Tribunal hearing this case would find that a substantially higher proportion of students without Mr Alwadi's disability could comply with the requirement compared with people with Mr Alwadi's disability. Reasonableness 1. The final element of indirect discrimination that Mr Alwadi would have to prove is that the requirement is not reasonable having regard to the circumstances of the case. The relevant factors when considering reasonableness were summarised by the Tribunal in Wong v Office of the Board of Studies NSW (No 4) (03 July 2012)[2012] NSWADT 128: Accordingly, in determining a condition or requirement was 'not reasonable' the Tribunal must have regard to the nature and extent of the discriminatory effect of the requirement and consider this in the light of: (a) the reasons for the requirement, including any commercial (or practical) considerations; (b) whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; (c) whether there is a less discriminatory option, which accommodates of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory; and, (d) any other relevant circumstances. 1. The reasons the University gave for the requirement were that an examination or some other form of supervised assessment, is necessary to determine whether a student has mastered the course material. Less discriminatory options have been offered but the University says that Mr Alwadi's suggestion of doubling his assignment mark was not acceptable because the assignment only tests part of the course. A take-home exam would not be subject to supervision or time limits so the results would not necessarily reflect Mr Alwadi's knowledge and understanding compared with other students. 2. From Mr Alwadi's point of view, he is unable to sit the exams even with the accommodations and alternatives offered by the University because of the level of his anxiety. The effect of the requirement is that Mr Alwadi must withdraw from the courses or have a failure recorded. 3. Despite the significant effect that compliance with the requirement has on Mr Alwadi he would be unlikely to be able to satisfy a Tribunal that the requirement was not reasonable. The requirement is appropriate and adapted to its purpose and has a logical and understandable basis. Order Leave is refused for Mr Alwadi's complaint of disability discrimination to proceed. ********** 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 Amendments 16 September 2015 - Paragraph 21, Text deleted, typographical error. It would not be fair or just to refuse leave without considering all the evidence and submissions the University and Mr Alwadi may provide in relation to that issue. 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: 16 September 2015