Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zhu v TAFE NSW [2018] NSWCATAD 243 Hearing dates: 2 October 2018 Date of orders: 17 October 2018 Decision date: 17 October 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: (1) Leave is refused for the applicant's complaint of race, discrimination to proceed. (2) Leave is refused for the applicant's complaint of aiding and abetting to proceed Catchwords: ANTI-DISCRIMINATION - leave sought to proceed with declined complaint - allegation of race discrimination by student against TAFE- whether fair and just for complaint to proceed – no basis on which an inference can be drawn that race was a reason for any of the alleged conduct; complaint of aiding and abetting discrimination Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: A v Director-General, Department Education and Training [2008] NSWSC 1091 Coomaraswamy v Campbelltown Anglican Schools Council [2015] NSWCATAD 271 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Shvetsova v State of New South Wales (Department of Education and Communities) [2012] NSWADT 253 State of New South Wales v Whiteoak [2014] NSWCATAP 99 Category: Procedural and other rulings Parties: Yan Zhu (Applicant) TAFE NSW (First Respondent) Tresillian Family Care Centres (Second Respondent) Representation: Solicitors: Applicant Self Represented Minter Ellison (First Respondent) Stevens and Associates (Second Respondent) File Number(s): 2018/00272812 Publication restriction: N/A REASONS FOR DECISION Introduction 1. On 1 August 2017, Ms Zhu complained to the President of the Anti-Discrimination Board that she had been discriminated against on the ground of her race, by TAFE NSW. Ms Zhu also complained that the Second Respondent, Guthrie Childcare Centre - Tresillian Family Care Centres - had aided and abetted TAFE NSW in this racial discrimination against her. 2. On 31 July 2018 The President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). Ms Yan Zhu applied to the New South Wales Civil and Administrative Tribunal (NCAT) for leave under section 96 of the Anti-Discrimination Act 1977 for her complaints of race discrimination against TAFE New South Wales and of aiding and abetting against Guthrie Childcare Centre to proceed. 3. The issue in this case is whether it is fair and just for the Tribunal to give Ms Zhu permission (or "leave") for her complaint to go ahead: Anti-Discrimination Act, s 96. Ms Zhu bears the onus of persuading the Tribunal that leave should be granted. 4. The Tribunal heard Ms Zhu's application on Tuesday, 2 October 2018. The Tribunal was assisted by a Mandarin interpreter. 5. The Tribunal decided not to give Ms Zhu permission for her complaint to go ahead because there is no direct evidence, nor any basis for drawing an inference, that her race was a reason for any of TAFE NSW's actions or for the way she was treated. It follows that the Tribunal does not grant leave for Ms Zhu to proceed against the Second Respondent for aiding or abetting TAFE NSW to discriminate against Ms Zhu on the grounds of her race. Background to complaints 1. Ms Zhu was enrolled with TAFE NSW to complete a Diploma of Children's Services during 2013. Ms Zhu alleged that in August 2013 the Head teacher at TAFE approved Ms Zhu's work placement at Stringybark Childcare Centre for 72 hours. At the end of the 72-hour placement, Ms Knox terminated the placement, Ms Zhu told the Tribunal, "for no reason". Ms Zhu's complaint alleged that Vanessa Knox McKay, Head Teacher, Early Childhood Education, TAFE unlawfully discriminated against her during interactions with Ms Zhu about the assessment of Ms Zhu's work placement on 18 and 19 September 2013, and in requiring Ms Zhu to undertake a further placement. Ms Zhu said that Ms Knox required Ms Zhu to undertake her work placement at Guthrie Childcare Centre - operated by Tresillian Family Care Centres. Ms Zhu was already employed here as a "floater". Ms Zhu told the Tribunal that the usual rule was that a student should not undertake a work placement at their usual place of work. Ms Zhu told the Tribunal it was virtually impossible to undertake a placement and also work in one's usual job at the same time, in the same place. 2. Ms Zhu's complaint to the ADB had stated that she thought she had been discriminated against on the ground of her race in that she was disadvantaged and treated less favourably than other students as a result of her limited English language skills. 3. At the hearing the Tribunal asked Ms Zhu to clarify why she thought she had been treated differently on the ground of her race. Ms Zhu told the Tribunal that it was her first job in Australia. She did not know what to do. She didn't know she could make a complaint. Her rudimentary English language proficiency did not allow her to make a proper complaint. The way they had treated her was different to others. What they had done to her had been a large detriment for her in completing her study. Complaint of aiding and abetting against Guthrie Childcare Centre (Tresillian Family Care Centres) 1. Ms Zhu's complaint of aiding and abetting against Guthrie Childcare Centre alleged that: * The Director of Guthrie Childcare Centre, Jaclyn Stewart, would shout at her if she was not happy with Ms Zhu's work. * The room leader in the toddler room where Ms Zhu was doing her practical placement was indifferent and unresponsive towards her and told another staff member that the complainant may fail in her placement. * Ms Zhu failed her work placement assessment after discussions between the TAFE assessor and Ms Stewart on 11 April 2014. * Ms Stewart and Vanessa Knox McKay, TAFE Head Teacher, are good friends. Principles for granting leave 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] – [40]. 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. The First Respondent's submissions 1. TAFE New South Wales submitted that it had not treated Ms Zhu any differently to any other student. The complaint itself did not allege that the complainant had been treated less favourably than any other student. 2. The complaint alleged that TAFE New South Wales had discriminated against Ms Zhu on the grounds of race on 18 and 19 September 2013 in her interactions with Ms Knox McKay. However, Ms Knox McKay's conduct did not disclose any less favourable treatment. Ms Knox McKay had assessed Ms Zhu as not yet competent. She had told Ms Zhu that her placement at Stringybark was not working out and it would be better if she went to Guthrie Childcare Centre where she was familiar with the workings of the centre. Ms Knox McKay had put Ms Zhu on notice that, as yet, she was "not yet competent". Ms Zhu had withdrawn from her diploma studies in April 2014. 3. Specifically, TAFE New South Wales had not denied Ms Zhu access to any benefit. It was not fair and just for the Tribunal to grant leave to Ms Zhu to proceed with her complaint. Even though the complaint had been accepted for investigation by the Anti-Discrimination Board President, the alleged conduct has occurred four years previously to the complaint being made in August 2017. Coupled with the fact that the President had found that the complaint lacked substance, it was therefore not fair and just to permit Ms Zhu to proceed with her complaint and it was fair and just to refuse leave. Submissions of the Second Respondent – Guthrie childcare centre 1. The Second Respondent submitted that it had no involvement in the primary allegations of race discrimination. Further the Second Respondent rejected any suggestion that it had aided and abetted the First Respondent to discriminate against Ms Zhu. The complaint had not identified any less favourable treatment. Further there had been no nexus provided between any conduct to which Ms Zhu had been subjected and her race. The complaint had been made several years after the alleged events and the Second Respondent noted that Ms Zhu's resignation from Guthrie Childcare Centre did not indicate that she had had any problem there. She had not exercised her rights under the grievance policy. She was offered an exit interview but declined it. In these circumstances it was not fair and just for the Tribunal to allow the complaint to proceed. Consideration Discrimination on the ground of race by an educational authority Substantive provisions 1. The substantive provisions on which Ms Zhu relies prohibit discrimination by "educational authorities" against "students": Anti-Discrimination Act, section 7 and section 17(2). For example, s 17(2) provides that: 17 (2) It is unlawful for an educational authority to discriminate against a student on the ground of race: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment. 1. TAFE is an educational authority: Anti-Discrimination Act, s 4. 2. The term "detriment" has a relatively broad meaning. In A v Director-General, Department Education and Training [2008] NSWSC 1091 at [32] – [35] the Supreme Court held that "being in a school environment poisoned by racial harassment" could be a detriment. Similarly, non-compliance with a policy, failure to implement Departmental recommendations or failing to adequately respond to an incident or allegation could be characterised as a detriment. What needs to be proved 1. If Ms Zhu can prove in relation to the allegations, that TAFE has subjected her to "any other detriment" she then needs to establish that the treatment was on the ground of her race (s 7(1). Section 7(1) provides that: 7(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if the perpetrator: (a) on the ground of the aggrieved person's race…, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b)…, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, 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. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 1. The Tribunal understands Ms Zhu's complaint to be one of direct race discrimination as defined in s 7(1). 2. In order to substantiate a complaint of direct discrimination Ms Zhu would have to prove that: 1. she is of a particular race as defined in the Anti-Discrimination Act; 2. that TAFE subjected her to a detriment; 3. that treatment was less favourable than the treatment that was or would have been afforded to an actual or hypothetical person of a different race in the same or similar circumstances; (differential treatment) and 4. at least one of the reasons for the less favourable treatment was her race. Race 1. Ms Zhu's race is Chinese. Being subjected to a detriment 1. The Tribunal accepts for the purpose of this decision that allegations set out above could constitute a detriment. Differential treatment 1. The first component of the test for direct disability discrimination is the "differential treatment" test. The treatment afforded to Ms Zhu must be compared with the treatment that would have been afforded to a person not of her race. In the absence of an actual person whose treatment can be compared with the treatment given to Ms Zhu, a decision maker would have to rely on a hypothetical person in a comparable situation. It is difficult to assess how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation. Causation 1. At least one of the reasons for the decision to placement must have been her race. As with the vast majority of complaints of discrimination, a causal link between any of these matters and the termination would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: "... (ii) an inference must be reasonably drawn on the basis of the primary facts; (iii) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ; (iv) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; (v) it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (vi) the inference must be a logical one, and not supposition; (vii) an inference cannot be made where more probable and innocent explanations are available on the evidence." 1. Ms Zhu told the Tribunal that Ms Knox Mackay had terminated her placement at Stringybark "for no reason". Ms Zhu did not point to any reference to her race in this discussion. Ms Zhu did not set out how she thought her lack of English proficiency skills caused any detrimental behaviour. 2. It is not sufficient for a complainant bringing a complaint of race discrimination to say, " for what other reason could I have been subjected to the detriment – other than my race?" There is no evidentiary basis for drawing an inference that Ms Zhu's race contributed in any way to any of the treatment Ms Zhu described. In those circumstances, it is not fair or just for this complaint of race discrimination against TAFE NSW to proceed. Complaint of Aiding and Abetting against Guthrie Childcare Centre 1. Section 52 of the Anti-Discrimination Act 1977 sets out the provisions making aiding and abetting unlawful. 52 Aiding and abetting etc It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act. 1. The Tribunal has determined not to give Ms Zhu permission for her complaint to go ahead because there is no direct evidence, nor any basis for drawing an inference, that her race was a reason for any of TAFE NSW's actions or for the way she was treated. It follows that the Tribunal does not grant leave for Ms Zhu to proceed against the Second Respondent for aiding or abetting TAFE NSW to discriminate against Ms Zhu on the grounds of her race. Orders 1. Leave is refused for the applicant's complaint of race, discrimination to proceed. 2. Leave is refused for the applicant's complaint of aiding and abetting 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 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: 17 October 2018