AKU v Department of Education and Communities
[2012] NSWADT 154
•06 August 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AKU v Department of Education and Communities [2012] NSWADT 154 Hearing dates: 31 July 2012 Decision date: 06 August 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the complaints to proceed is refused.
Catchwords: LEAVE - allegation of race discrimination by parent on behalf of two children - conduct of teachers - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Interlocutory applications Parties: AKU on behalf of his daughter and his son Representation: AKU (Applicant in person)
Markinson & d'Apice Lawyers (Respondent)
File Number(s): 121054 Publication restriction: Order made in terms of s 75(2)(b) of the Administrative Decisions Tribunal Act 1997
REASONS FOR DECISION
Introduction
A complaint of discrimination that has been declined by the President of the Anti-Discrimination Board cannot be heard in the Tribunal unless permission is given: Anti-Discrimination Act 1977, s 96. The test is whether it is fair and just for the complaint to go ahead: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. Mr AKU complained on behalf of his daughter and his son, that they had been discriminated against by teachers at their school on the ground of their race. I have decided that the complaints should not go ahead because there is nothing to connect the alleged conduct with the race of the children.
The daughter's complaint
Mr AKU complained to the Anti-Discrimination Board on behalf of his daughter who was 10 years old at the time. The complaint related to events at school on his daughter's birthday. The child arrived at school a few minutes late. Her friends greeted her by wishing her a happy birthday. According to Mr AKU, his daughter said that the teacher said to her, "You should be embarrassed because you came to school late". Later that day when the child was at the door, and some children had moved outside, she said the teacher yelled to her to, "Get out". According to Mr AKU, the teacher grabbed his daughter firmly by the arm, squeezed it and pulled her backwards so that she nearly fell over.
The teacher strenuously denied that she pulled the child backwards by the arm almost causing her to fall. The principal investigated the complaint and found it not to have been substantiated. An appeal to the Department's Employee Performance and Conduct Directorate found that any possible physical interaction between the teacher and the child was unintended or negligible and would not have resulted in her coming close to falling over. For the purpose of these proceedings, I accept Mr AKU's version of events.
Mr AKU says that his daughter was very upset by this incident and told her mother later that day that even though it was her birthday, she had had the "worst day". Mr AKU says that this is a clear case of assault, harassment, bullying and discrimination. The child has since moved to another school and attempts to resolve the matter with the Department have been unsuccessful.
The son's complaint
A few weeks after lodging a complaint on behalf of his daughter, Mr AKU lodged a second complaint on behalf of his son who attended the same school and was 11 years old at the time. There were seven allegations. Six of those allegations took place more than 12 months before the complaint was lodged. In such cases, the President can decline the complaints. In this case, the President did not decline the complaints because they were out of time but because they were "lacking in substance". The allegations, apart from an allegation about conduct directed to Mr AKU himself, were, in summary, that:
(1) the child did not get the lead role in the school play;
(2) the child was given "detention" for bashing together two boys' heads when it was an accident and another student who punched him was only kept in for 10 minutes;
(3) the child's class mates teased him and assaulted him but the teachers did not respond appropriately; and
(4) a teacher who was close by when a soccer ball hit the child on the head in the playground after school did not respond or show any concern.
Is it fair and just for the complaints to go ahead?
To substantiate a complaint of discrimination, Mr AKU must be able to prove that at least one of the reasons for his children being treated in the way that they were was their race. He says in relation to his daughter that the teacher and all the other students in the class are of Caucasian descent while his daughter, who was born in Australia, has an Indian father and a Greek mother. Mr AKU did not say whether all the students in his son's class were Caucasian. Mr AKU says that to his knowledge, no-one else was treated in the same way as his daughter was treated. He would presumably make the same point about his son.
If these complaints went ahead to a hearing in the Tribunal, the central question would not be whether Mr AKU's daughter was assaulted or whether either his son or his daughter were treated unfairly or even harshly. The central question would be whether a reason for any of the conduct was the child's race. There is nothing specific to connect the way the children were treated with their race. Even if the children were the only non-Caucasians in the class, that does not provide a basis for inferring that race was a reason for the treatment. To conclude that race was a basis for the treatment is conjecture.
It is highly unlikely that Mr AKU would be able to substantiate the complaints of race discrimination on behalf of his children. Permission for the complaints to proceed is refused.
**********
Decision last updated: 06 August 2012
0
1
2